By William Rab

Like a sports league deciding to make greater use of in-game instant replay on crucial calls, the Florida Supreme Court has made it a little easier for hospitals and other medical malpractice defendants to challenge expert witnesses’ qualifications.

“This is an extremely important decision for the defense,” said Scott Mendlestein, managing shareholder with the Falk Waas law firm in Florida, which handles insurance defense and medical malpractice defense work.

Until this month, a defendant in many medical cases had to wait until the end of a trial to appeal a motion to dismiss a suit based on the plaintiff expert’s qualifications. After the Supreme Court on July 6 unilaterally changed the rules of appellate procedure, the defense can now call a time out and move for an interlocutory appeal when a lower court denies a motion to dismiss.

Mendlestein said the change is good for both sides. It could save significant litigation costs for insurers and medical organizations who won’t have to wait until the end of a case before appealing. And plaintiffs may be able to remedy the situation and find a new witness, if needed.

The rule change was prompted by Florida’s Medical Malpractice Act. The Florida Legislature in 2016 modified the statute in a number of ways to limit lawsuits and damages. It added a requirement that a plaintiff’s expert witness must be a physician in the same specialty, with at least three years of experience. A witness who is a general practitioner must have at least five years’ experience.

The case at issue began in 2016. A patient named Laurie Carmody underwent spinal disc surgery at the University of Florida’s Shands Teaching Hospital. She later developed swelling, hardness, numbness, and paralysis. She eventually sued the surgeon and the university, the court explained.

The malpractice law requires a notice of malpractice claim to be accompanied by a supporting affidavit from the expert. Carmody’s expert was experienced in internal medicine, cardiology and hospital admissions, but not necessarily in spinal surgery. The university filed a motion to dismiss the suit, arguing that the witness was not qualified to opine on the surgery. The trial court refused the motion and allowed the trial to proceed.

The university appealed, but Florida’s 1st District Court of Appeal in 2021 found that court rules did not allow it to decide on the issue, although two other state appeals courts had decided differently. UF and Shands asked the high court to step in and clarify.

The case was seen as important to medical and physician organizations. The American Medical Association, the Florida Hospital Association and the Florida Medical Associaiton filed an amicus brief.

The Supreme Court found that the district court of appeals did not have the authority to rule on the expert qualification question. At the same time, in a separate order, the court swiftly changed the rules to allow those types of appeals.

“We acknowledged that ‘the Medical Malpractice Act changed the law such that an interlocutory remedy for parties facing claims that fail to satisfy its pre-suit requirements is warranted,’” the court wrote in the rule-change order. “Accordingly, we now amend Florida Rule of Appellate Procedure 9.130(a)(3) to provide for interlocutory review of nonfinal orders that deny a motion to dismiss on the basis of the qualifications of a corroborating witness under subsections 766.102(5)-(9), Florida Statutes.”

The sudden change has met with some criticism, with some legal scholars arguing that it will mean more mid-game appeals, more delays and more litigation.

“Will this create more appellate backlog? Perhaps,” Mendlestein said in an email. “However, looking across the litigation landscape, this is a rather rare issue to come across. Most times, particularly since the change from ‘same or similar specialty’ to ‘same specialty’ under the statute, both sides have their experts in order early on.”

The court said the rule change took effect immediately but public comments on it will be accepted until Sept. 19. That move overrode the court’s normal process that weighs arguments before before making changes.

Justice Jorge Labarga dissented on the ruling: “A rule change of this magnitude should be referred to the appropriate committee for consideration and recommendations prior to its adoption,” he wrote.

This is the second significant change to Florida’s interlocutory appeal procedures in the last 18 months. In January 2022, the Supreme Court allowed mid-litigation appeals on whether lawsuits can include punitive damages. Critics have said the change will lead to delays and will have a chilling effect on requests for punitive damage amounts. Defense interests called it a “game changer” that may prevent rifts between insureds and insurers when big punitive damage awards are at stake.

Article as appeared in the Insurance Journal. Click here to read the full article.