A bill is making its way through the Florida House of Representatives that could change the medical malpractice landscape in the state. The bill, HB 479, proposes changes to expert witness rules, rules of evidence, liability of hospitals for the acts of physicians and the plaintiff’s burden of proof, among other things. While proponents say each of these measures is important to keeping insurance premiums low and curbing health care costs, opponents say the bill is clearly designed to make it more difficult for individuals harmed by surgical errors and medical mistakes to pursue their claims in court.
The legislative analysis of the bill provides an excellent summary of the current law and the changes proposed. We’re using analysis as the basis for our discussion here.
Burden of proof. You’re probably familiar with this term. The burden of proof for criminal cases comes up on television all the time, especially when prison time is involved: beyond a reasonable doubt. For civil cases, there are two less stringent levels of proof: preponderance of the evidence and clear and convincing evidence. A preponderance of the evidence is generally described as “51 percent sure” — more likely than not — and is the standard in most civil trials, including medical malpractice actions.
Clear and convincing evidence is the “reasonably certain” standard. The jury or judge must believe that it’s highly probable, for example, that leaving a surgical instrument in a patient falls outside of the standard of care and was the cause of the patient’s injury.
This bill does not propose to change the overall burden of proof for a medical malpractice action. Rather, it wants to change the burden of proof for cases involving supplemental diagnostic tests. In the past, an injured party would have to prove by a preponderance of the evidence (51 percent) that the physician’s failure to order, to administer or to perform additional diagnostic tests such as an MRI was outside of the standard of care. Under this bill, that standard would change to clear and convincing evidence, the “highly probable” standard.
We’ll continue this discussion in our next post.
Source: Florida House of Representatives Bill 479, Staff Analysis, Health & Human Services Access Subcommittee, 04/06/11