Florida’s “One Expert Per Specialty” Rule Explained

Medical Malpractice

The So-Called One Expert Per Specialty Rule

The “one expert per specialty” rule was addressed in Gutierrez v. Vargas, SC15-1924 (March 22, 2018) by the Florida Supreme Court.

What Happened in the Case

Gutierrez (a minor child) brought a medical malpractice case against her pediatrician alleging that her doctor negligently failed to diagnose her with a chronic kidney disease.  Gutierrez eventually suffered severe kidney damage and underwent a kidney transplant.  Dr. Vargas defended the lawsuit by saying that Gutierrez had a different kidney disease than the one alleged and that it could not have been diagnosed any sooner (in other words, she was going to lose her kidney anyway which equals a lack of causation).

After trial, the judge entered a $4.1 million judgment against Dr. Vargas and he appealed.

On appeal to the Third DCA, the case was reversed because the plaintiff violated the so-called “one expert per specialty” rule (among other issues).  This appeal to the Florida Supreme Court ensued thereafter.

Distinction Between Treating Physicians And Hired Experts

The trial judge in this case had entered a pre-trial order that limited each party to one expert per specialty.  However at trial, the plaintiff was allowed by the judge to call four pathologists while Dr. Vargas was limited to one pathologist.  It is no surprise that Dr. Vargas cried foul when he lost the trial and claimed that he was unfairly prejudiced by the trial judge’s failure to “enforce” the pre-trial order limiting experts.

Before we go further into detail, we need to remind ourselves that treating physicians are not “true” experts in the sense that “experts” (in the legal sense) are hired solely for the purpose of litigation.  Treating physicians often have no interest in litigation and are the medical professionals who are actually out in the world making a difference.

Regardless, treating physicians occupy a special role in litigation.  They act as “hybrid” witnesses who possess facts about the case as well as special or skilled knowledge.  This is why the courts have said that testimony given by treating physicians “blurs the boundary between fact testimony and expert testimony…”

Treating Physician Opinions Are Limited To Those That Existed At The Time Of Treatment

Prior cases in Florida have established that “treating physicians [unless hired later as experts] are limited to their medical opinions as they existed at the time they were treating the plaintiff” (see Tetrault v. Fairchild, 799 So. 2d 226, 227-8 (Fla. 5th DCA 2001).  Meanwhile, “an expert may form new opinions in order to help the [jury] decide the case.”  Id.

With this in mind, the one expert rule (if applied to treating physicians) has the potential to limit the evidence that a plaintiff can present at trial because a patient may have seen several treating physicians of the same specialty in the course of treatment.  In Cantore v. West Boca Medical Center, Inc., 174 So. 3d 1114 (Fla. 4th DCA 2015)(see also updated ruling from the Florida Supreme Court on Cantore), the Fourth DCA stated that the one expert rule “improperly limits the testimony of treating physicians and rebuttal experts.”  Further, the court in Cantore said that “the jury should hear from a plaintiff’s treating physicians–as in more than one, when there are more than one involved–regarding their care, recommendations, and medical decision-making.”  NoteCantore was ruled on by the Florida Supreme Court in 2018.

Despite reversing on other ground, the Florida Supreme Court recognized this fact and adopted this “corollary” to the one expert rule.

Bottom Line-Testimony Cannot Be Cumulative

So now that a plaintiff can potentially have an unlimited number of experts because the plaintiff was treated by a number of physicians with the same credentials, how can a trial ever be fair to defendant doctors?

The answer to this question lies in the evidence code (section 90.403, Fla. Stat.) where “cumulative” evidence is not allowed.  While the trial judge ultimately decides what is cumulative and what is not, good trial lawyers will not seek to introduce unnecessary or cumulative testimony anyway out of a risk of losing the jury to boredom.

“One Expert Per Specialty” Rule Applies to All Cases, Not Just Medical Malpractice

The one expert per specialty rule does not just apply in Florida medical malpractice cases-it applies to all cases even car accidents and other personal injury lawsuits.  The rule also applies to both sides rather than just to plaintiffs and it applies to all subject matters.  Likewise, it would be unfair to allow an insurance company to call four accident reconstruction experts while a plaintiff is only allowed one (although insurance companies have been known to hire several experts within the same specialty and then select the expert most favorable to testify at trial as the law is not so clear on limiting the number of experts that one side can hire in the discovery phases of litigation).

Get Help From A Law Firm Who Litigates Cases

Making the right moves on your case is critical to being successful with your case.  To reach your objective with your lawsuit, you should have an attorney by your side helping you make those right moves along the way.  Mr. Russo is a personal injury attorney in Lakeland, Florida who assists clients with a variety of personal injury and medical malpractice cases.  If you would like a free consultation to determine whether you have a meritorious case under Florida law or you have a question about your case, please feel free to call us for help.


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April 20, 2018