Malpractice: An Effective Ray of Hope for Doctors

Anthony Francis, MD, JD


May 03, 2012

In This Article

Texas Leads the Way

Texas has been the most aggressive state in making efforts to limit testimony in malpractice cases.

Beginning in September 2003, stricter requirements for proposed experts at trial went into effect in that state. These have included a pretrial report from an expert. All discovery is stayed (put on hold) until the report has been issued. These pretrial reports are expensive and more likely to be rejected by the court.

A person can now qualify as an expert witness on the issue of substandard care only if he or she is a physician who:

  • is practicing medicine at the time testimony is given or was practicing medicine at the time the claim arose;

  • knows the accepted standards of medical care for the diagnosis, management, or treatment of the illness, injury, or condition involved in the claim; and

  • is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.

Florida Tries to Get Tougher, Too

Florida has been plagued for years with testimony from out-of-state experts in medical malpractice cases. Much of this testimony has been criticized for being less than scientific. The Florida Board of Medicine has had no authority to regulate this activity.

Because of the concerted action of orthopedic surgeons who professionally organized, as well as the actions of other Florida doctors, the idea grew that testimony was actually a part of the practice of medicine. It became apparent that the State Board should have the power to regulate opinions given in Florida.

In 2011, a bill was passed that required out-of-state medical experts to obtain a simple, low-cost, and minimalistic certificate from the Florida Board of Medicine in order to testify within the state. The bill asked for other things as well, but the centerpiece was expert witness accountability.

If a certificate-holding out-of-state physician is found to have testified "in a fraudulent, deceptive or misleading" manner in Florida, the Board could revoke the expert's certificate. That simple step would be a reportable action to the physician's home state and to the National Practitioner Data Bank. The bill was successfully passed and signed into law at the end of the 2011 session. It is too early to tell what the result will be.


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