Medical Malpractice Cases-Expert Witness Testimony in Florida

In a recently decided medical malpractice case captioned Clare v. Lynch, the Florida Court of Appeal held that a corroborating expert witness must be from same, exact specialty as the doctor that committed the malpractice. In this case, the patient broke her toe. A number of treatments were performed upon her that allegedly did not resolve the problem. The patient brought suit against her doctor. In support of her claim, she submitted an affidavit from a board certified podiatrist. The treating physician is a board certified orthopedic surgeon.

The Florida medical malpractice statutes contain a detailed presuit procedure that applies to all claims. The statutes require a patient to conduct an investigation and demonstrate that reasonable grounds exist to file a medical malpractice claim. The statutes require a patient to produce a written affidavit from an expert which corroborates that medical negligence occurred. An expert witness against a specialist must be a person who is regularly engaged in the practice of medicine, who is currently licensed, and who specializes in the same specialty as the healthcare provider that is being sued. During the three year period preceding the date of the alleged malpractice, the expert must have either engaged in practice or consulting in the same specialty, instructed students in the specialty, or engaged in clinical research in the specialty. The affidavit must come from a physician who specializes in the same specialty.

In this medical malpractice case, the treating doctor was an orthopedic surgeon. The expert witness is a podiatrist. The patient argued that both doctors were in the same specialty because they both render care and treatment to feet and ankles. The Florida Court of Appeal found that the two healthcare providers received different training and practice in different specialties. Therefore the Court found that the podiatrist's affidavit was legally insufficient and the patient's case was dismissed.

A prior Florida statute might have allowed the podiatrist to testify in this case. That statute permitted testimony from an expert who practiced in the same or a similar specialty. The trial court was also given discretion to permit testimony. However, a newer statute precludes experts from similar specialties from testifying against specialists in different specialties. The new statute also eliminates the Judge's discretion in this matter. Although providers from similar specialties might have been permitted to testify in the past, this is no longer permitted in Florida.

To speak with a medical malpractice attorney in Palm Beach County, Florida, contact Matthew Lane & Associates, P.A. at (561) 651-7273.

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