Published 10/1/2011
Alan S. Routman, MD

One small step for tort reform in Florida

It’s no secret that orthopaedic surgeons are passionate. But while some focus solely on their patients and their families, others take a broader view and commit significant time and resources to improve the future of medicine and, in particular, the orthopaedic profession for future generations.

Such a commitment is necessary to achieve real and measureable change. In Texas—and most recently in Florida—involvement of a passionate membership was crucial for landmark changes to the medical liability climate to occur.

In Florida, the situation was so bad that many physicians—including some orthopaedic surgeons—had abandoned medical liability insurance, simply “going bare.” The incredible cost, the limited benefit, and the ominous feeling that insurance money simply painted the physician as a target were part of the problem. An uneven playing field and a court system that seemed unfair prompted many physicians to opt out at their personal risk. Tort reform has seemed so far away for so long that achieving Texas-style reforms was likened to the pursuit of the mythical pot of gold at the end of the rainbow.

The physician problem
Part of the problem in Florida, some visionary physicians suggested about 20 years ago, was actually caused not by the lawyers, but by physicians who provided less-than-scientific testimony about the standards of care and the treatment offered by local defendant doctors. Many of these “expert witnesses” did not practice in Florida and were called in from out-of-state. Because they were licensed elsewhere, the Florida Board of Medicine had no recourse and no authority to rebuke the borderline testimony they offered.

As the idea grew that expert testimony is actually part of the practice of medicine, so did the theory that such testimony should be regulated by the Board of Medicine. But how could the Florida Board have jurisdiction on testimony from doctors licensed in other states, when those physicians were admitted to the court as experts by judges through the judicial process?

Thus began the attempt to find a way to hold out-of-state experts accountable for their testimony, specifically when it seemed that such testimony itself departed from generally accepted local standards of care. The AAOS Standards of Professionalism on Expert Witness Testimony was one attempt, but as powerful as the program is, it is still limited.

During the 2011 Florida legislative session, an opportunity arose to enact a small dose of tort reform. Physician leadership (along with the assistance of professional staff) made a commitment to passing a bill through the legislature to require out-of-state medical experts to obtain a simple, low-cost, and minimalistic certificate from the Florida Board of Medicine in order to testify within the state. The bill asked for other things as well, but the centerpiece was expert witness accountability.

If a certificate-holding out-of-state physician was found to have testified “in a fraudulent, deceptive or misleading” manner in Florida, the Board could revoke the expert’s certificate. That simple step would be a reportable action to the physician’s home state and to the National Practitioner Data Bank. It might be posted on the internet and word of the action might spread through social networking.

As members of the AAOS, orthopaedic surgeons have some protection under the Standards of Professionalism from other AAOS members. But this law would provide broad coverage to all physicians defending themselves from meritless claims from any “expert” in any field of medicine.

A successful conclusion
With the help of many physician-friendly legislators who committed to fight for this bill in both the Florida House and the Senate, and despite formidable opposition from the usual adversaries, HB 479 and SB 1590 became law and were signed by the governor at the conclusion of the 2011 session.

I wish I could insert here the names of all the physicians who contributed to this effort over the past two decades, but I can’t—there are just too many. Some contributed by supporting their state and specialty society organizations; others organized political fundraisers, got to know legislators, and helped educate them on the issue; organizational leaders spent countless hours spearheading the effort. The dedicated team of the Florida Orthopaedic Society staff and lobbyists fought battle after battle until the final votes were counted.

The bottom line is that physician dedication and effort in advocacy can work. Advocacy can be a very effective tool in improving the practice of medicine. Legislative battles may not be pretty and certainly aren’t simple. It may take a long time, but working together, we can level the playing field.

This short story had a great ending. Although Florida may not match Texas in terms of tort reform, efforts are continuing. When out-of-state expert witnesses come to testify in the Sunshine State, they’ll need to choose their words carefully and thoughtfully.

Alan S. Routman, MD, is a member of the AAOS Advocacy Resource Committee.