by Robert C. Buschel, Sean Gelb
Florida’s evidentiary rules grant broad discretion to a trial judge when certifying a medical expert in a given field. Variation in admissibility is seen between criminal and civil courts, and even from personal injury to medical malpractice trials. Recent legislative changes and case rulings in the Florida Supreme Court demonstrate a shift toward a greater exclusion among specialty practitioners, but variation still exists.
Expert testimony is intended to validate and verify a litigant’s claim in both civil and criminal proceedings. However, experts often obfuscate rather than illuminate scientific issues for the jury. Confusion may arise from either counsel’s or the expert witness’ ambition to present opinions outside the scope of a witness’ expertise. Difficulties proving or excluding an expert will cause problems for trial practitioners who overextend an expert’s opinion into a related expertise, unaware of where courts draw the line. This happens when an expert in one particular field offers opinions overlapping into another specialist’s similar or related field of expertise. In Florida’s state court system, challenging the testimonial range of an expert’s knowledge could be made under the Frye standard;1 in federal courts, the Daubert standard is applied.²
Qualifying an Expert
Clarifying when an expert practicing one medical discipline may offer testimony in a different field of medical expertise is necessary in order to avoid misleading a jury or confusing the courts. The American Board of Medical Specialties recognizes 24 areas of specialized medicine.³ A specialty is defined as an "aspect of medicine to which physicians confine their practice after certification of special knowledge by examination."4 Similarly, a specialist is a physician "devoted to a particular branch of study or research, . . . limiting his practice to a specified field."5
Fla. R. Evid. §90.702 permits an expert to testify: "If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial."6 A "qualified expert" is required to have "such skill, knowledge or experience in that field or calling" so that "his opinion or inference will . . . aid the trier of facts."7
Florida Medical Malpractice Standard
In certain jurisdictions, experts who render a scientific opinion in a medical malpractice case in support of, and contrary to, an opposing party’s expert must speak from the same specialty.8 In Florida, a lawyer proffering an expert must establish the expert as being a "similar health care provider."9
Unless the medical procedure is common or routine practice, an expert not specialized in the same area of practice lacks the foundation to voice an opinion.10 It is not enough to be a medical doctor; one must "to the satisfaction of the court, possess sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience, or knowledge must be as a result of the active involvement in the practice or teaching of medicine" within a statutory period before the incident giving rise to the claim.11 The expert must be "conversant" with the relevant science within the particular specialty.12 In personal injury and criminal litigation, the qualifying standard is F.S. §90.702.
A potential template for development of a uniform evidentiary standard for medical or scientific experts is found in recently amended medical malpractice legislation, F.S. §766.102 (effective September 15, 2003). Subsection (5) states:
A person may not give expert testimony concerning the prevailing professional standard of care unless that person is a licensed health care provider and meets the following criteria:
(a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:
1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; or specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients; and
2. Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:
a. The active clinical practice of, or consulting with respect to, the same or similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients;
b. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same or similar specialty; or
c. A clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same or similar specialty.
If the expert testimony is offered against a general practitioner, similar standard requirements are applicable; however, the preceding practice period is extended to five years.13 When an opinion is against other than a specialist or general practitioner, the time devoted to professional practice is measured for three years preceding the occurrence giving rise to the cause of action.14
The standard referenced in F.S. §766.102 is not dramatically different from that contained in F.S. §90.702, which references an expert qualified by "knowledge, skill, experience, training or education."15 However, the malpractice statutes are more explicit and create concise guidelines for expert qualifications. Still, expert qualifications are not limited by the legislation, as trial courts are granted broad discretion to qualify or disqualify on other grounds, not identified in the statute.16
Reviewing the case precedents for permissible expert testimony from other states further defines and clarifies what constitutes a qualified professional opinion. Utah, Michigan, Colorado, and Texas have each adopted a version of Rule 702 that is nearly identical to the comparable Florida rule.
Michigan prohibits testimony unless the party offering testimony is board certified in the same specialty as the party the opinion is offered against.17 Witness qualification requires evaluation of educational and professional training, specialty, and time engaged in clinical practice.18 Thus, it would likely be insufficient for a trained physician to simply read a textbook or take a weekend course.
The courts in Colorado mandate that the proponent for the expert witness bear the burden of proving the similarities between experts in opposition. Knowledge of a "foreign" medical specialty must be more than mere "casual familiarity."19
The Supreme Court of Utah held that an expert must possess "significant depth and breadth of knowledge on a given subject," ultimately refusing to "allow a doctor in one specialty . . . to become an ‘expert’ on the standards of a different specialty by ‘merely reading and studying’" because it "invites confusion, error and . . . unreliable testimony."20
Texas Rule of Evidence 702 preliminarily requires the party offering an expert’s testimony to first prove the witness’ qualifications.21
In deciding whether an expert is qualified, the trial court "must ensure that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion." General experience in a specialized field is insufficient to qualify a witness as an expert. What is required is that the offering party establish that the expert has "knowledge, skill, experience, training or education" regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.22
The "offering party must demonstrate that expert witness possesses special knowledge on the precise matter about which he is called to testify."23 Still, a Texas trial court has broad discretion in the admission or exclusion of a witness’ testimony.24 As a result, a board certified emergency room physician with relevant publications, and an equally credentialed neurologist, both with extensive experience in the most current methods of treating acute stroke patients, were denied permission to topically testify.25 Each had been called to render opinions on whether a hospital’s standards for treating stroke patients fell below a universal standard. The trial court was found not to have abused its discretion, because neither physician, despite extensive training and practice, had requisite knowledge or experience to opine what ordinary prudence would have been for a treating hospital.26
Specialty boards certify a medical professional within a sphere of their expertise after meeting baseline training requirements and parameters.27 For example, the experience necessary to meet the minimum standard for pathology and its forensic sub-specialty vary, and differ greatly from the requisites of the board of plastic and reconstructive surgery.28
There are clear examples when experts from another specialty, however, could be allowed to offer an opinion about subject matter that is on the fringe of their expertise. Numerous specialties and disciplines overlap in limited areas of specialized knowledge. Some examples are: a neurologist and a neurosurgeon, a neurosurgeon and an orthopedic surgeon, a trauma surgeon and an emergency physician, an otorhinolaryngologist and a head and neck surgeon, even a psychologist and a psychiatrist. What should unequivocally be precluded is a proffered expert merely reviewing a few unfamiliar case reports at the eleventh hour before trial, and being allowed to testify as an expert. Florida’s courts have vacillated, confusing trial practitioners with unclear definitions as to what qualifications their experts must have. Beginning in 1985, psychologists were denied the right to render opinions delving into territory exclusive to medical doctors.29 Then, in 2000, the Fourth District Court of Appeal explicitly receded from earlier holdings.30 The court interpreted new legislative definitions of psychologist, to permit neuropsychologists, untrained in medical causes of brain injury, to offer their "expert" opinion on brain damage, a topic far within specialized fields of non-psychologic medical or surgical study.31 In late 2003, a different case involving similar question as to how far a neuropsychologist may extend an opinion reached the Florida Supreme Court.32 The Supreme Court drew a bright line, declining to reverse the Fourth DCA’s interpretation because it was valid appellate law at the time the court handed down its opinion,33 but abrogated the rule that a neuropsychologist met the requisites to testify on non- psychologic brain injuries.34 Thus, a psychologist, who is not a medical doctor, is not qualified to render an opinion as to the cause of "organic brain damage."35 The court corrected the misinterpreted Florida statutes to hold that only the "diagnosis and treatment of psychologic aspects of physical illness, accident, injury or disability, including neuropsychological evaluation, diagnosis, prognosis, etiology, and treatment" were within the scope of a psychologist’s training, practice, or licensure.36 Any proffered testimony by a psychologist on nonpsychological or medical aspects of organic brain injury is by logic, excluded.37
What Problems Are on the Horizon?
Unanswered questions remain: If different areas of expertise overlap, will a court prohibit the number of similar experts that can testify in a case for one side? Meaning, will a judge now convinced that neuropsychology is a similar enough discipline to psychology, deny a litigant’s second expert permission to testify at trial, because of redundancy?38 In the battle to win a jury by tipping the scales of the quantity of medical expert opinion in a party’s favor, will courts limit a litigant to one expert who overlaps two fields of study? Conversely, will multiple expert witnesses be permitted to testify because restrictions require a different expert to render an opinion in an area not wholly alien to a particular expert witness?
Interestingly, the move toward a nationalized legal standard of care and expertise may be reduced to what is minimally acceptable within a small community, as specific local context may be dramatically different from standards applied elsewhere. That would be a particularly elevated standard in areas demographically served by a disproportionately high number of exceptionally qualified physicians. It is no longer enough to be a "like professional," a witness must now be a "like expert." Mere knowledge or familiarity is not enough to testify on a specialty science. One must have exquisite and particular understanding and experience in the field at issue and its direct factual application to a matter before the court.
Evidentiary rules are written with sufficient flexibility to leave the door open for courts to exercise discretion. Without a clear demarcation between qualified expertise and specialization, however, trial courts remain the ultimate arbiters of when testimony is offered by a sufficiently similar expert, so as not to prejudice a party or mislead a juror. It is not an imaginative stretch to recognize that the outcome of any litigation requiring medical evidence hinges on the admission or exclusion of an expert in a Frye hearing.
1Ramirez v. State, 810 So. 2d 836, 843 (Fla. 2001).
2Id. at 843 n.8.
3Ga. Soc. of Plastic Surgeons, Inc. v. Anderson, 363 S.E. 2d 140 (Ga. 1987).
4Catron v. Bohn, 580 So. 2d 814 (Fla. 2d D.C.A. 1991).
5Id. at 817.
6Meyer v. Caruso, 730 So. 2d 118 (Fla. 4th D.C.A. 1999).
7Horowitz v. American Motorist Ins. Co., 343 So. 2d 1305 (Fla. 2d D.C.A. 1977).
8Vazquez v. Ceballos, 36 Va. Cir. 181, 182 (Va. Cir. Ct. 1995).
9Lake v. Clark, 533 So. 2d 797 (Fla. 5th D.C.A. 1988); see also Catron, 580 So. 2d at 817.
10Dikeou v. Osborn, 881 P.2d 943 (Utah 1994) (Utah shares a very similar rule of evidence on the admission of scientific testimony as Florida).
11Id. at 798-799; see also Cross v. Lakeview Center, 529 So. 2d 309 (Fla. 1st D.C.A. 1988).
12Foster v. Thornton, 160 So. 490 (Fla. 1934).
13Fla. Stat. §766.102(5)(b).
14Fla. Stat. §766.102(5)(c).
15Clair v. Glades County Board of Commissioners, 635 So. 2d 84 (Fla. 1st D.C.A. 1994).
16Fla. Stat. §766.102(12).
17Tate v. Detroit Receiving Hospital, 242 N.W. 2d 346 (Mich. App. 2002).
19Connelly v. Kortz, 689 P.2d 728 (Colo. App. Div. 3 1984).
20Dikeou, 881 P.2d at 948.
21Reed v. Granbury Hospital Corp., 2003 WL 22026543*4 (Tex. App. Fort Worth Aug. 29, 2003).
23Id. at *5.
24Id. at *4.
25Id. at *7.
26Id. at *7.
27Anderson, 363 S.E.2d at 710.
29Grenitz v. Tomlian, 858 So. 2d 999, 1001 (Fla. 2003) (citing Executive Car & Truck Leasing, Inc. v. DeSerio, 468 So. 2d 1027 (Fla. 4th D.C.A. 1985)).
30Broward County School Board v. Cruz, 761 So. 2d 388, 395 (Fla. 4th D.C.A. 2000).
31Grenitz, 858 So. 2d at 1002.
32Grenitz v. Tomlian, 858 So. 2d 999 (Fla. 2003).
33Id. at 1001.
34Id. at 1002.
36Id. at 1002 (citing Fla. Stat. §490.003(4).
38Fla. Stat. §90.612; Fed. R. Evid. 611(a).
Robert C. Buschel graduated from Nova Southeastern University Shepard Broad Law Center in 1995 and is a founding partner in the Ft. Lauderdale law firm of Buschel Carter Schwartzreich & Yates. He practices in both the civil and criminal defense arenas.
Sean Gelb holds Florida licenses to practice both medicine and law. His medical training and experiences include surgery, critical care, burns, and plastic and reconstructive surgery. Dr. Gelb graduated from Nova Southeastern University Shepard Broad Law Center in May of 2003, and is associated with the Ft. Lauderdale law firm of Buschel Carter Schwartzreich & Yates, practicing civil and criminal litigation.
This column is submitted on behalf of the Trial Lawyers Section, Thomas D. Masterson, chair, and Thomas P. Barber, editor.