New Florida Medical Malpractice Legislation
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Medical Malpractice Law Amended by Florida Supreme Court

In a pivotal move with far-reaching implications, the Florida Supreme Court has recently amended the rules governing appellate procedures, allowing defendants to appeal a motion to dismiss a medical malpractice suit based on plaintiff expert qualifications even before a trial concludes.

While proponents assert that this alteration will expedite legal proceedings and curtail litigation expenses, medical malpractice attorneys who represent those who are injured contend that the endeavor to constrain plaintiffs’ rights will lead to protracted legal battles. This is another opportunity for the large insurance companies and well-funded defense firms to continue their policy to delay, deny, and defend.

The genesis of this rule change lies in the Florida Medical Malpractice Act, a legislative milestone enacted in 2016 to reshape the landscape of lawsuits and damages. Among its pivotal provisions was the stipulation that a plaintiff’s expert witness must be a practicing physician within the identical specialty, armed with a minimum of three years of pertinent experience. In cases involving general practitioners as witnesses, the threshold was elevated to a minimum of five years of experience.

The crux of the issue is exemplified by a significant case that commenced in 2016. Laurie Carmody underwent spinal disc surgery at the University of Florida’s Shands Teaching Hospital. Following the procedure, Carmody faced a series of alarming symptoms, including swelling, hardness, numbness, and paralysis. Seeking recourse, she initiated legal action against both the attending surgeon and the university, asserting claims of medical malpractice.

Under the revised rule, a notice of malpractice claim mandates an accompanying affidavit from an expert. However, the expert chosen by Carmody possessed a rich background in internal medicine, cardiology, and hospital admissions, but lacked the specialized expertise in spinal surgery. Despite the university’s contention that the expert’s credentials did not align with the surgical context, the trial court permitted the case to proceed.

Infographic created by medical malpractice attorneys about "Free Kill" laws.

Acknowledging the paramount significance of elucidating these matters for medical and physician collectives, the American Medical Association, the Florida Hospital Association, and the Florida Medical Association all filed amicus briefs in support of the case.

This was a surprise to no one as these organizations are all supported by the providers and organizations who stand to benefit every time rights are taken away from patients or new opportunities to delay justice are allowed. The university’s appeal ultimately escalated to the Florida Supreme Court’s intervention.

The new rule will engender a surge in mid-litigation appeals, culminating in prolonged delays and heightened litigation. This rule change provides defendants and their insurers with a tactical advantage, allowing them to leverage mid-litigation appeals as a means to protract legal battles.

By repeatedly challenging plaintiff expert qualifications through interlocutory appeals, defendants could potentially create a formidable obstacle course for justice-seeking plaintiffs, further elongating an already complex and emotionally taxing legal process. In such a scenario, the very essence of justice might be overshadowed by a prolonged quest for procedural advantage, detracting from the core purpose of seeking restitution for victims of medical malpractice.

Furthermore, the abruptness of this rule modification and its circumvention of the customary process for such alterations have spurred criticism. Justice Jorge Labarga dissented, emphasizing that a rule alteration of this magnitude mandates prior committee assessment and recommendations before implementation. Florida’s legal arena remains divided over its potential repercussions. Defense lawyers who see further opportunities to delay, and bill, are against the change. Meanwhile, the plaintiffs’ bar which seeks to obtain swift justice is for the most part disappointed by the change.

While this change is generally a negative for plaintiffs, our firm remains unwavering in its commitment to advocating for the rights of those who have suffered due to medical negligence.  At Swope, Rodante P.A. we do a deep investigation into viable medical malpractice claims ensuring we understand not only the law but the standard of care which needs to be met by the medical provider. With that understanding, we engage with experts within the specialty practice area in question. Therefore while we know our opponents will use this tactic to delay, we do not expect they will be able to forever deny our clients the justice they deserve.

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