A highly contested topic within the area of the law is the idea of tort reform. Many think that the current laws in Florida are too lax and allow for frivolous and unnecessary litigation. It is also thought that Florida and the rest of the United States should adopt a more European scheme of tort law that allows for minimal recovery for Plaintiffs and no punitive damages.
Recently, the Florida legislature has taken a large step in tort reform for medical malpractice cases. The new law requires medical experts testifying in a medical malpractice trial to be of the exact same specialty as the defendant. Why is this important? This drastically limits the doctors that can testify because many are reluctant to oppose their colleagues. Further, there are doctors who carry out the same procedures but learn it in a different way. This law prohibits them from testifying and as a result, makes it more difficult for injured parties to recover against doctors who have committed negligence. This seemingly large step in the way of tort reform means greater hardship for malpractice victims, as well as for their attorneys. Medical malpractice claims are immensely time consuming and financially cumbersome, so this action by the legislature causes even more of a struggle for Plaintiffs and causes many attorneys to steer away from medical malpractice litigation.
The legislature has stated that they were concerned with the chilling effect that the previous laws had on doctors failing to administer vital tests because of the fear of being sued. This contention is flawed mainly because most doctors are not being sued because of administering tests. On the contrary, they are being sued for their failure to administer tests or for their negligent performance. It would be more advantageous for the legislature to be concerned with the chilling effect on their citizens and the impact on their constitutional right to have access to the courts.
Aside from medical malpractice tort reform, it seems that it is only a matter of time before the legislature will prevent more litigants from bringing their claims. With this umbrella protection of doctors we can only assume that eventually other tortfeasors will have this same protection. We might be so bold as to conclude that there will soon be a business owner’s protection law that no longer requires them to act as reasonable business owners or to protect the invitees that come onto their property. Perhaps the Walmart Protection Act? Or maybe the legislature will chose to do away with strict liability or the doctrine of res ipsa (allowing plaintiff to assert a breach of the duty of care because it is likely that the defendant caused the injury). When do we stop caring about the wallet and start caring about the consumer?
With any luck the legislature will note the unduly burdensome impact that this new implementation has on the citizens of Florida and will chose to abstain from further tort reform or even better, revise the new law.