The Florida Supreme Court recently declined to adopt a change to a law that would've required out-of-state medical experts hold a Florida license. As a result, judges in medical negligence cases may allow out-of-state expert witnesses to testify.
Background:
In 2011, the Florida Legislature created section 766.102(12), Florida Statutes, basically requiring that expert witnesses in medical negligence cases be licensed in the state. In reaction to this legislation, the Florida Department of Health created a new category of license called “expert witness certificates,” although few have been issued.
Because the statute impacted the admissibility of evidence, The Florida Bar conducted a review of state evidence code provisions. The Bar’s Code and Rules of Evidence Committee voted 14-13 to recommend the state’s highest court adopt the newly created statutory provisions as a rule of procedure. But the Florida Bar Board of Governors voted to reject the change, saying the provision was unconstitutional, will have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice.
The Florida Supreme Court declined, in December 2013, to adopt the change as a rule of procedure. Thereafter, the Bar committee filed a motion for rehearing. On July 10, 2014, the court declined to change its opinion on rehearing.
Because administrative law judges in the Division of Administrative Hearings generally follow the Florida Rules of Evidence in professional disciplinary cases, it appears likely that out-of-state witness testimony, by qualified experts, will continue to be permitted.
For more information, contact Bruce Lamb, leader of Gunster’s health care law practice.
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