On June 5, 2013, Governor Rick Scott signed into law SB 1792, implementing new reforms for medical negligence actions, and HB 7015, changing the standard for expert testimony. According to the Florida Senate Judiciary Committee Summary, SB 1792 clarifies a healthcare provider’s right to legal counsel, authorizes a prospective provider defendant to interview the patient’s treating healthcare providers, and revises the qualification requirements for expert witnesses authorized to testify in medical negligence actions against specialists. HB 7015 replaces the current “Frye” standard for qualifying expert witnesses with the more widely used “Daubert” standard, according to a House of Representatives Final Analysis of the measure.

Provider Access to Legal Counsel

As a result of the 2012 Florida Supreme Court decision Hasan v. Garvar, 108 So. 3d 570 (Fla. 2012), healthcare providers were unclear when and to what extent they could seek legal counsel when not a party or a potential party to a medical negligence action. SB 1792 clarifies that a healthcare provider may consult with his attorney if he reasonably expects to be: (1) deposed, (2) called as a witness, or (3) receive formal or informal discovery requests in a medical negligence action, pre-suit investigation of medical negligence, or administrative proceeding.

The bill does restrict, however,  a healthcare provider’s liability insurer from: (1) contacting the provider and recommending he seek legal counsel relating to a specific matter, (2) selecting an attorney for the provider, or (3) receiving from the provider’s attorney any information relating to his legal representation other than the categories of work performed or the amount of time applicable to each category for billing or reimbursement purposes, unless: (a) the attorney reasonably expects the healthcare provider to be named as a defendant and the healthcare provider agrees with the attorney’s assessment, (b) the provider receives a pre-suit notice, or (c) the provider is named as a defendant. In the event the healthcare provider contacts the insurer, the insurer may recommend attorneys who are not already representing a defendant or prospective defendant in the matter.

Informal Discovery During Pre-suit Investigation

According to the bill, in order to obtain preliminary information regarding a potential claim, a prospective defendant healthcare provider or his attorney may interview the patient’s treating healthcare providers consistent with the Authorization for Release of Protected Health Information provided in the bill. The information obtained is not discoverable or admissible in any civil action for any purpose by any party.  After receiving written notice from a prospective defendant, the patient’s attorney has 15 days to arrange a mutually convenient date, time, and location for the interview. If the patient’s attorney fails to schedule an interview, the prospective defendant may attempt to conduct the interview without further notice to the patient or his attorney. All subsequent interviews require at least 72-hour notice to the patient and his attorney. A treating healthcare provider is not required to submit to a request for an interview.

In considering whether such a provision would violate the Health Insurance Portability Accountability Act of 1996 (HIPAA), the Florida Senate noted, in its analysis of the measure, a 2009 Texas Supreme Court decision, In re Collins, 286 S.W. 3d 911 (TX 2009), which held HIPAA did not preempt a similar Texas statute. Regarding HIPAA, the Texas Supreme Court commented:

While the rules strongly favor the protection of individual health information, they permit disclosure … in a number of circumstances. … In a judicial proceeding, protected information may be disclosed in response to a court order. … It may also be disclosed without a court order in response to a subpoena or discovery request if the health care provider receives satisfactory assurances that the requestor has made reasonable efforts to ensure that the subject of the information has been given notice of the request. … . Finally, health care information may be disclosed if the patient has executed a validly written authorization.

Expert Witness Qualifications

Before SB 1792 was enacted, a healthcare provider of a different specialty—but who similarly evaluated, diagnosed, and treated the medical condition subject to the claim—could provide expert testimony. SB 1792 now requires the expert witness to specialize in the same area of medicine as the healthcare provider defendant.

A separate bill, HB 7015, also changes the rules for allowing expert testimony from the “general acceptance” standard articulated in Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923), to one that aligns with the standard adopted by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). According to an analysis of the House bill, under this standard, expert testimony must be based on sufficient facts or data; drawn from tested principles and methods; and the witness must reliably apply those methods and principles to the facts.

The Florida Justice Association on its website advocated against the state’s move to the Daubert standard, saying it will needlessly increase the cost and time to litigate cases in an already overburden judicial system.

However, in a statement posted by the Governor, Representative Larry Metz said “[r]eplacing the antiquated 90-year-old Frye standard with the modern Daubert standard used in all federal courts and a majority of other states will empower Florida judges to vet expert testimony for reliability and accuracy.” 

The legislative analysis of SB 1792 is available at http://www.flsenate.gov/Session/Bill/2013/1792/Analyses/VR1oYqHE/PmC5B0M0mR89dCv=PL=2c=%7C14/Public/Bills/1700-1799/1792/Analysis/2013s1792.rc.PDF

The legislative analysis of HB 7015 is available at http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=h7015z1.CJS.DOCX&DocumentType=Analysis&BillNumber=7015&Session=2013

The Florida Justice Association’s statement on the expert witness testimony standard is available at http://www.floridajusticeassociation.org/index.cfm?pg=Consumer_ExpertWitnessTestimony