Effective July 1, 2013, the Florida Senate passed legislation that clarifies when a non-defendant physician may retain legal representation when called as a witness and limited who may qualify as an expert witness in medical negligence cases. See Senate Bill 1792 (legislative history for the law can be found here).
As for the first change, the amendment was aimed at reversing and clarifying the Florida Supreme Court’s decision in Hasan v. Garvar, 108 So. 3d 570 (Fla. 2012), which curtailed a non-defendant physician’s right to counsel when subpoenaed for deposition in a medical malpractice case. The new law allows a physician, during a consultation, to disclose to his or her counsel information disclosed by a patient or records created during the patient’s care or treatment. The new law, however, prohibits counsel from being a conduit for ex parte communications between the physician and the defendant or the defendant’s insurer. For example, if the physician’s liability insurer represents a defendant or prospective defendant:
● The insurer may not choose an attorney for the provider, but may recommend attorneys other than the attorney representing the defendant or a prospective defendant; and
● The provider’s attorney may not disclose any information to the insurer, other than categories of work performed or time billed.
As for the second major change, the new law limits who may offer expert testimony in a medical negligence action against a specialist. Under the prior law, the experts must specialize in the same or similar specialty as the defendant. The new law requires these experts to specialize in the same medical specialty as the defendant-physician.
The plaintiffs’ bar has filed five different lawsuits in Florida state and federal court challenging the constitutionality of these reforms.