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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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 11 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach and its headquarters in West Palm Beach. With more than 170 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 350 largest law firms. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.

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