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Florida justices cast doubt on malpractice law

TALLAHASSEE - The Florida Supreme Court on Thursday appeared to signal questions about the constitutionality of a 2011 law that placed new requirements on out-of-state expert witnesses in medical-malpractice cases.

The law was heavily backed by the Florida Medical Association, which has long argued for more restrictions on experts who testify against doctors. But plaintiffs' attorneys contended the law, which created a new certification process for out-of-state experts, was unconstitutional.

The Supreme Court did not directly rule on the constitutionality of the law. But in a case that involved changes to the state's evidence code, justices declined to approve a procedural rule that would go along with the expert-witness law.

Neal Roth, a South Florida trial attorney who has been heavily involved in medical-malpractice issues, said lawmakers overstepped their constitutional authority by trying to tell the courts who can testify in lawsuits. Roth said that "without exactly saying it," justices indicated Thursday they believe the Legislature violated the constitutional separation of powers.

But Jeff Scott, general counsel for the Florida Medical Association, said the Supreme Court decision should not prevent judges from carrying out the law's requirements on out-of-state expert witnesses.

"I expect the courts to enforce this (law)," Scott said. "It's a substantive matter. It's not procedural."

Roth and Ted Eastmoore, a Sarasota attorney who is chairman of the Trial Lawyers Section of The Florida Bar, said they expect the constitutional issue ultimately to be decided in a malpractice case involving an out-of-state expert witness. Roth said the Supreme Court's decision to not approve the procedural rule could be raised in such a case.

Groups such as the Florida Medical Association have argued for years that additional restrictions are needed on expert witnesses, contending in part that hired-gun experts sometimes give questionable scientific opinions. Along with the 2011 law, the Legislature this year approved a measure that requires expert witnesses to have the same specialties as doctors who are defendants in malpractice cases - a stricter standard than in the past.

While part of the debate about the 2011 law involves separation of powers, Eastmoore said the Trial Lawyers Section of the Florida Bar also thought the requirements were unconstitutional because they pose an "access to courts" issue. That is because the requirements could affect the ability of parties in malpractice cases to find expert witnesses.

Plaintiffs' attorneys say that many Florida doctors will not testify against other physicians in the state, increasing the importance of bringing in experts from elsewhere. Eastmoore's section of the Bar, which includes plaintiffs' attorneys, defense attorneys and commercial litigators, filed a document with the Supreme Court opposing the procedural rule.

Justices, in a 6-1 decision, turned down a committee's proposal's that they approve the rule, pointing to "numerous" comments that the court received from opponents. The court also cited a vote by The Florida Bar Board of Governors that went against the committee's proposal.

"The Board of Governors voted 34-5 to recommend that the court reject the committee's proposal, on the grounds that the provision is unconstitutional, will have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice," the Supreme Court said in the order. Only Justice Charles Canady dissented.

While Scott said he thinks courts need to carry out the 2011 law, he acknowledged concerns about a potential future Supreme Court ruling on the constitutionality of the issue.

"They've proven themselves not a very friendly bunch when it comes to tort-reform legislation," Scott said