S. Court decides not to adopt med mal expert witness law as a procedural rule.

Stopping short of declaring unconstitutional legislative changes to the Florida Evidence Code about out-of-state expert witnesses in med mal cases, the Florida Supreme Court declined to adopt procedural rule changes to accompany the new law "due to the concerns raised."

Some of those concerns came from The Florida Bar Board of Governors. A year ago, in December 2012, board members voted 34-5 to recommend the court not adopt the law into the evidence rules. Board members said this is one of the rare instances when statutory changes to the evidence code should not also be included in the evidence rules because it is unconstitutional, has a chilling effect on the ability to obtain expert witnesses in medical cases, and is prejudicial to the administration of justice.

At issue is a law passed in 2011--section 766.102(12) "Medical negligence; standards of recovery; expert witness"--that requires out-of-state experts in medical and dental malpractice cases register with the Florida Department of Health, pay a $50 fee, and be subject to possible disciplinary review by the department, including allegations that they provided misleading testimony.

Designed to help doctors defend themselves in malpractice cases, the law was backed by the Florida Medical Association, was a priority for Senate President Don Gaetz, and was signed into law by Gov. Rick Scott.

The December 12 per curiam opinion in case No. SC13-98, In Re: Amendments to the Florida Evidence Code, noted the Board of Governors' concerns that the provision is unconstitutional, that the Bar's Code and Rules of Evidence Committee voted 14-13 to recommend the statutory provision be adopted as a rule of procedure "to the extent that it is procedural," and that numerous comments were filed, all in opposition.

"After hearing oral argument and carefully considering the committee's recommendation in light of those comments, we decline to follow this recommendation due to the concerns raised. Accordingly, the court declines to adopt the legislative changes to the Code or newly created section 766.102(12), Florida Statutes, to the extent they are procedural."

Justice Charles Canady was the lone dissenter, offering this two-sentence opinion: "I would adopt each of the rule amendments recommended by the Code and Rules of Evidence Committee. I therefore dissent from the majority's rejection of those proposals."

Jeff Scott, general counsel for the Florida Medical Association, told the News Service of...