The Importance of Expert Selection in Medical Malpractice Cases

Selecting an expert in any negligence case is an important decision, but even more so in a medical malpractice case. For starters, in a medical malpractice case, an expert must be retained before the case is even filed. And, if you select the wrong expert because you’re pressed for time or lacking resources (or any other reason), it will end the case before it even begins.

In Florida, before a plaintiff can file a medical malpractice case, she must comply with various requirements under Chapter 766, Florida Statutes . Perhaps the most important requirement is corroborating that there are reasonable grounds to initiate the case through a “verified written medical expert opinion ,” commonly referred to as a “corroborating affidavit.” The affidavit must not only include the requisite information, it must also be signed by an appropriate expert. If the affidavit is deficient in either respect, the penalties are severe – your client’s case will be dismissed, and you will be liable for attorney’s fees and costs .

So who is an appropriate expert for your client’s medical malpractice case? Surely, a physician who has the knowledge, skill, experience, training, or education to enable him to testify to the applicable standard of medical care and treatment should qualify as an appropriate expert. Right? Not necessarily, based on these cautionary tales:

• In a case where the plaintiff claimed that the surgery performed on her broken toe was unnecessary, the court found that the affidavit, signed by a board-certified podiatrist whose primary focus was foot and ankle surgery, didn’t comply with the statute and dismissed her case.
• In a case where the plaintiff claimed that the surgery on his wrist was negligently performed, the court found that the affidavit, signed by a board-certified plastic surgeon who performed the same wrist surgery as part of his practice, didn’t comply with the statute and dismissed his case.
• In a case where the plaintiff claimed that the surgery on his hip was negligently performed, the court found that the affidavits, signed by an emergency room physician, a radiologist, and a nurse , didn’t comply with the statute and dismissed her case.

The reason for the noncompliance of each of these affidavits is the same: the plaintiff’s expert didn’t have the same specialty as the defendant physician (in each case, orthopedic surgery).

The importance of complying with “same specialty” requirement has been clear for some time in Florida. Why, then, did these plaintiffs choose experts who didn’t specialize in orthopedic surgery? Perhaps their attorneys didn’t have the necessary time or resources to search for, find, and retain an orthopedic surgeon; supply him with the requisite information to adequately formulate an opinion; and obtain from him an affidavit that otherwise complied with the statutory requirements.

That’s where Global Litigation Consultants comes in. If you’re in need of an appropriate expert to sign a corroborating affidavit to initiate a medical malpractice case, contact us . We have the time and resources that you may be lacking, and we understand the importance of choosing the right expert for your clients’ cases.

Amended 8.17.2023

The relevant text of Chapter 766 reads as follows:

(5) A person may not give expert testimony concerning the prevailing professional standard of care unless the person is a health care provider who holds an active and valid license and conducts a complete review of the pertinent medical records and meets the following criteria:
(a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:
1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; and
2. Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:
a. The active clinical practice of, or consulting with respect to, the same specialty;
b. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same specialty; or
c. A clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same specialty.
(b) If the health care provider against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness must have devoted professional time during the 5 years immediately preceding the date of the occurrence that is the basis for the action to:
1. The active clinical practice or consultation as a general practitioner;
2. The instruction of students in an accredited health professional school or accredited residency program in the general practice of medicine; or
3. A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the general practice of medicine.
(c) If the health care provider against whom or on whose behalf the testimony is offered is a health care provider other than a specialist or a general practitioner, the expert witness must have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:
1. The active clinical practice of, or consulting with respect to, the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered;
2. The instruction of students in an accredited health professional school or accredited residency program in the same or similar health profession in which the health care provider against whom or on whose behalf the testimony is offered; or
3. A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered.
(6) A physician licensed under chapter 458 or chapter 459 who qualifies as an expert witness under subsection (5) and who, by reason of active clinical practice or instruction of students, has knowledge of the applicable standard of care for nurses, nurse practitioners, certified registered nurse anesthetists, certified registered nurse midwives, physician assistants, or other medical support staff may give expert testimony in a medical negligence action with respect to the standard of care of such medical support staff.
(7) Notwithstanding subsection (5), in a medical negligence action against a hospital, a health care facility, or medical facility, a person may give expert testimony on the appropriate standard of care as to administrative and other nonclinical issues if the person has substantial knowledge, by virtue of his or her training and experience, concerning the standard of care among hospitals, health care facilities, or medical facilities of the same type as the hospital, health care facility, or medical facility whose acts or omissions are the subject of the testimony and which are located in the same or similar communities at the time of the alleged act giving rise to the cause of action.
(8) If a health care provider described in subsection (5), subsection (6), or subsection (7) is providing evaluation, treatment, or diagnosis for a condition that is not within his or her specialty, a specialist trained in the evaluation, treatment, or diagnosis for that condition shall be considered a similar health care provider.
(9)(a) In any action for damages involving a claim of negligence against a physician licensed under chapter 458, osteopathic physician licensed under chapter 459, podiatric physician licensed under chapter 461, or chiropractic physician licensed under chapter 460 providing emergency medical services in a hospital emergency department, the court shall admit expert medical testimony only from physicians, osteopathic physicians, podiatric physicians, and chiropractic physicians who have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department.
(b) For the purposes of this subsection:
1. The term “emergency medical services” means those medical services required for the immediate diagnosis and treatment of medical conditions which, if not immediately diagnosed and treated, could lead to serious physical or mental disability or death.
2. “Substantial professional experience” shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in hospital emergency departments in the same or similar localities where the alleged negligence occurred.
(10) In any action alleging medical negligence, an expert witness may not testify on a contingency fee basis.
(11) Any attorney who proffers a person as an expert witness pursuant to this section must certify that such person has not been found guilty of fraud or perjury in any jurisdiction.