Medical malpractice reform is not only making it more difficult for claimants to file medical malpractice cases, but is also making physicians and other medical experts who provide claimants with the written opinions necessary to file such cases professionally and financially responsible for their opinions.
For quite some time, Florida law has required claimants to obtain a written opinion from a medical expert prior to filing suit. The medical expert is supposed to provide written verification that reasonable grounds exist to support a claim of medical negligence. These expert opinions are part of the overall pre-suit investigation that attorneys are required to undertake in these cases. Historically, plaintiffs and their attorneys have been shielded from professional and financial responsibility for the frivolous filing of medical malpractice cases by arguing that they relied upon the opinion of a medical expert in determining whether to file the case. Similarly, as medical experts who render pre-suit opinions rarely testify in the ensuing proceedings, these experts have avoided responsibility because they are outside the jurisdiction of the presiding court. However, recent reforms have increased the exposure for physicians and other medical experts which provide opinions to prospective medical malpractice claimants. If a medical expert is found by any court in this state to have provided a written opinion without having the necessary qualifications for the same or rendered such opinion without conducting the required degree of investigation, the expert may face disciplinary action by the Board of Medicine, including revocation or suspension of his/her medical license, monetary fines and/or other penalties. Florida law is now very specific as to the qualifications necessary to render a pre-suit opinion. A medical expert must be currently licensed; be regularly engaged in the practice of his/her profession; hold a health care professional degree from a university or college; and, meet other criteria which varies according to the type of health care provider against whom the testimony is offered. For example, among other things, if the defendant is a specialist, the medical expert must specialize in the same specialty. In other words, general practitioners are no longer qualified to render pre-suit opinions as to the alleged malpractice of a specialist. Further, if the defendant is a general practitioner, the expert witness must have performed as a general practitioner during the 5 years immediately preceding the date of the alleged malpractice. Jurisdiction over medical experts providing pre-suit opinions is apparently not an issue any longer either. There are examples of courts making findings as to the sufficiency of pre-suit investigations, even though the medical experts did not participate in the subsequent proceedings nor were they otherwise afforded the opportunity to defend themselves in those proceedings. These adverse findings have then formed the basis for disciplinary actions by the Board of Medicine against these medical experts. Moreover, the Board has taken the position that they are not required to address the issue of the sufficiency of the investigation as a court has already ruled on the issue. As a result, the Board is meting out punishment without necessarily reviewing whether an appropriate investigation was in fact conducted. In sum, health care providers who render expert medical opinions which are to be used by a claimant to initiate a medical malpractice action should carefully evaluate the case, ensure that they are properly qualified and conduct a reasonable investigation prior to providing the opinion. Failure to do so may have severe professional and financial consequences.
