Senate med mal measure advances.

The type of expert who could testify in medical malpractice cases would be limited and med mal defendants and their insurers would be able to conduct ex parte interviews with the plaintiff's treating health care providers, under a bill approved by the Senate Judiciary Committee on March 18.

The bill also specifies that treating physicians have the right to consult with an attorney, addressing concerns raised by the Supreme Court in Hassan v. Garvar, Case No. 10-1361, decided last December.

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SB 7030 arose out of hearings the committee had on tort issues. Chair Sen. Tom Lee, R-Brandon, said out of several issues discussed in those earlier meetings he decided the bill should focus on three.

The measure raised the ire of Sen. Armenia Joyner, D-Tampa.

"This is just a continuum of this Legislature to impede citizens' right to access the courts for injuries that have been perpetrated by the medical profession," she said.

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Noting a study that estimated 98,000 people die annually from preventable medical errors, Joyner added, "Florida has continuously eroded the right of people to access their rights in court for the injuries they have received."

On expert witnesses, the bill specifies that the expert must come from the same specialty as that practiced by the defendant. Current law provides that the expert must come from the same or "similar" specialty.

Lee said that has led to ambiguities and inconsistent applications. For example, he said the emergency room doctors had been allowed to testify as experts in some types of med mal cases, but not others. (The staff analysis of the bill provided to the committee noted a case where an emergency room doctor was not allowed to testify when the defendant was a cardiologist, but another emergency room doctor was allowed in a case where the defendant was an orthopedic surgeon.)

"The bill essentially attempts to narrow down what is an acceptable witness in a medical malpractice case to make sure it is the same specialty," Lee said.

As for ex parte communications, current law allows those as part of the presuit investigations required before a medical malpractice action is filed. However, defense lawyers must provide notice and a reasonable opportunity to appear for the plaintiff attorneys when an interview is set for the plaintiff's health care providers. The proposed bill would remove the notice requirement.

Lee said the bill aims to make it easier for the defense...