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Doctors redefine court experts

A bill backed by a doctors' lobby would set limits on which doctors could testify as experts in malpractice cases.

By JO BECKER

© St. Petersburg Times, published March 22, 2000


TALLAHASSEE -- Suing a doctor for medical malpractice could soon become more difficult.

The Florida Medical Association, a powerful lobbying group that represents doctors, wants to tighten the requirements for doctors who testify against other doctors in malpractice lawsuits. Under a bill the group backs, only doctors in the same field or specialty could be used as an expert witness against a doctor who was accused of making a medical mistake.

"If the person is a neurosurgeon, it just isn't right that the expert witness is a general practictioner," said Sen. Jim Sebesta, R-St. Petersburg.

But the Florida Academy of Trial Lawyers, another powerful interest group, has joined with consumer advocates to fight the measure and argues that malpractice kills at least 44,000 people a year nationally.

"This proposed legislation is not needed and is offered solely to help doctors and hospitals hide their mistakes," said Ray McEachern, president of the Association for Responsible Medicine. "It will be difficult to find an expert who qualifies under the proposed definition."

After heated debate, the measure cleared its first hurdle Tuesday when it unanimously passed the Senate Judiciary Committee. It now must be approved by the full Senate. The bill has not yet been heard in the House, where Speaker John Thrasher, a former FMA lobbyist, presides.

The measure comes at a time when some lawmakers and the FMA are pushing to give patients the right to sue HMOs when care is improperly denied.

Without a qualified medical expert, patients cannot sue a hospital or doctors. Now, the courts judge the qualifications of the experts. Sebesta's proposal sets strict guidelines for the courts to use, although under special circumstances they could choose to waive those guidelines.

Too often, said FMA president Dr. Mathis Becker, the "drama and skill of a particular expert from outside the field" of medicine in question wins over the facts.

Suing doctors is already hard enough, said Patti O'Regan, a nurse from Port Richey who testified Tuesday. She said her mother died from an overdose at a Tampa hospital last year after a doctor gave her too much pain medication. But O'Regan couldn't sue the doctor: Only children under 25 can bring a malpractice suit when their parents are involved, and parents can only bring a suit involving their children if the kids are under 25.

"My mom died, and I can't hold these people accountable," O'Regan said.

Sebesta, who talked to his aide throughout O'Regan's testimony, handed her his card when she sat down. But he opposed an effort to remove those age limits.

"This is a huge issue," said Sebesta. "I, too, was moved by Ms. O'Regan's comments."

"But you don't want to do anything about it," muttered Neal Roth, president of the Academy of Florida Trial Lawyers.

Roth said one problem with Sebesta's bill is that medical specialties overlap. For instance, an internist who specializes in heart problems couldn't testify against a general practitioner who was caring for a patient with heart problems. A gynecological surgeon couldn't testify against a gynecologist. Ditto for a neurosurgeon and a neurologist.

He said courts carefully consider an expert's qualifications before allowing testimony and do not allow doctors of vastly different backgrounds to testify against one another.

"We get these anecdotes out of doctors lounges about cases that have not actually occurred," said Roth, who promised that the issue could come back to haunt lawmakers who vote for Sebesta's bill during the November elections.

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