January 12, 2015

Florida Appeals Court Allows Plaintiff to Investigate a Medical Expert’s Litigation Background

clip boardPersonal injury cases almost always involve medical testimony from health care professionals who have performed an independent examination of the injured plaintiff. Sometimes known as “doctors-for-hire,” the reputation of these professionals can depend on how often they testify in cases. In Orthopedic Care Center v. Parks, the issue of expert witnesses’ financial and trial information was examined on appeal by the Third District.

In the underlying case, the plaintiff filed a claim against another driver for injuries allegedly sustained as the result of an automobile accident between the two parties. During the course of litigation, the defendant obtained a physician to conduct a medical examination of the plaintiff. In preparation for a deposition following that examination, the plaintiff requested that the physician provide all records of the doctor’s testimony in personal injury cases in the preceding five years. While the physician provided an extensive list of patient names, he could not differentiate between individuals whom he had treated as a patient and those whom he had examined as part of litigation.

When legal counsel for the plaintiff further demanded a clarification between the two classes of individuals on the list, the physician requested that the trial court disallow the inquiry. The court declined, citing to Florida discovery rules that permit discovery into an expert’s previous trial testimony. The list of co-mingled individuals, according to the court, did not comply with the applicable discovery rules. As such, the trial court permitted the plaintiff to request information as to which individuals were involved in personal injury cases. The issue was then appealed to the Third District.

The appellate court examined the Florida discovery rules regarding a medical expert’s litigation experience, including the percentage of trial work performed respectively for plaintiffs and defendants. The discovery rules also allow a party to a lawsuit to ascertain a particular expert’s income earned by serving as a witness. The Florida Supreme Court set forth guidelines for discovering an expert witness’ financial information. A party who seeks such information may depose a medical expert, inquiring whether the expert typically performs work for plaintiffs, defendants, or both. In addition, the expert may be asked to provide an estimation of the percentage of his or her work that is devoted to acting as an expert.

The appeals court held that the medical expert in the case at bar had failed to specify the percentage of patients he had treated in his own practice, and those he had examined for trial purposes. That distinction, according to the court, could go to potential bias as an expert witness.

The appeals court also determined that discovery of the information sought by the plaintiff would not violate Florida laws prohibiting the disclosure of patient information. The physician already had provided a list of patient names, and the plaintiff did not seek any additional medical information. Instead, the plaintiff was entitled to an identification of the individuals upon whom the physician had performed an evaluation in his role as a retained expert. The appellate court affirmed the trial court’s order denying the physician’s motion for a protective order and sent the matter back to the trial court.

If you are suffering from a personal injury due to someone else’s negligence, it is vital to obtain skilled legal professionals who are experienced in the courtroom and at trial.  Serving residents in or around Fort Myers, Naples, or Cape Coral, the Southwest Florida injury attorneys at Lusk, Drasites & Tolisano utilize all their resources in order to help accident victims get the compensation they deserve. For a complementary case evaluation, contact us online or call toll-free at (800) 238-7442 today.

More Blog Posts:

A Florida Insured Driver May Sue Their Insurer for Negligent Misrepresentation Based on Alleged Misinformation, September 26, 2014

Florida's High Court Upholds Damages in Bar Fight Case, Holding One Patron Has Duty to Prevent Another Patron's Misconduct, November 3, 2014

Florida Appeals Court Addresses the Issue of Expert Testimony in Whiplash Case, October 30, 2014

Posted in: Personal Injury, Auto Accidents

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