The Florida Supreme Court on Thursday refused to adopt rules of evidence to reflect a new law requiring executive branch certification of out-of-state expert witnesses in medical malpractice cases.

It was one of three proposed rules recommended by The Florida Bar code and rules of evidence committee. The court declined to adopt two because of constitutional concerns and one “because we question the need.”

On the expert witness rule, the decision indicates the court anticipates a constitutional challenge on the substance of the law.

The Legislature passed a requirement that medical experts from outside Florida must obtain a $50 certificate from the state Health Department swearing they are licensed to practice medicine in their home state if they intend to testify in Florida medical malpractice cases.

The court noted the committee’s recommendation was a narrow 14-13 split supporting the proposal but The Bar’s board of governors voted 34-5 against it “on the grounds that the provision is unconstitutional, will have a chilling effect on the ability to obtain expert witnesses and is prejudicial to the administration of justice.”

“Numerous comments were filed with respect to this proposal, all in opposition to its adoption,” the unsigned 6-1 opinion said. IN dissent, Justice Charles Canady said he would adopt all three rule amendments.

Sean Domnick of Domnick & Shevin in Palm Beach Gardens, one of two attorneys who spoke against the rule during summer oral argument, said of Thursday’s decision: “I think the court understood perfectly well the problem with the Legislature encroaching into this area. The rules of the court should be determined by the court, not the Legislature.”

Now that trial judges are not obligated to require certificates, Domnick said the most likely next step is for a plaintiffs attorney to seek a declaratory judgment to strike down the law as unconstitutional, “much like what is happening now with the Legislature’s authorization of ex parte communications.”

In September, a Tallahassee federal judge stopped enforcement of a change in medical malpractice law that allowed communications by the defense with doctors as a prerequisite to filing a lawsuit. The law permitted defense attorneys and their investigators to talk to a victim’s doctors outside the presence of the victim’s attorney.

Sausage Making

The out-of-state expert witness issue was argued before the Supreme Court on June 3.

David M. Buckner of plaintiffs firm Grossman Roth in Coral Gables opposed it, arguing that forcing trial judges to demand certificates does not increase the quality of evidence but threatens to decrease it by creating a new obstacle to attracting the best witnesses.

“To the extent that it is simply to confirm the status of the expert witness as a licensed physician, I don’t understand why it doesn’t serve an evidentiary purpose,” Canady said during arguments.

Buckner said at the time the existing rules give judges the authority to exclude witnesses who do not meet evidentiary criteria, but the proposal usurped court’s authority and transferred it the Health Department.

The new law also gave the department the power to rescind a doctor’s certificate if it finds fraudulent testimony was given. An executive branch agency would essentially have veto power over evidence that can come before trial courts, Buckner said.

When Domnick argued against the rule, he told the court: “I was across the street when this sausage was being made. The purpose of the statute is to make it harder for plaintiffs to pursue medical malpractice cases. That is why it is limited to medical malpractice cases.”

It’s already gotten harder for plaintiffs to get witnesses, he said. Florida doctors are reluctant to testify against their colleagues, universities forbid their teaching physicians to testify, and medical societies around the nation are biased when disciplining expert witnesses.

Thomas Shults of Kirk Pinkerton in Sarasota, then chair of the committee, defended the expert witness rule as merely a pro forma change that is less invasive than what happens to Florida doctors.

Florida doctors already risk losing their license to practice if they give false testimony, Shults noted. Out-of-state physicians would lose only their certificates to testify in Florida.

The other two proposed rules addressed use of hearsay evidence when someone keeps a witness from testifying and lawyer-client privilege for fiduciaries.