South Florida Injury Lawyer Blog
One of the reasons Florida medical malpractice cases are so complex – and costly – is because they require at least one (and usually more) expert witness. F.S. 766.102(1) places the burden of proof in these cases on the plaintiff (person injured) to show the health care provider breached the prevailing professional standard of care, given the care provider’s care, skill and treatment in light of all relevant surrounding circumstances. The court will look carefully at what the accepted standard of care as viewed by “reasonably prudent similar health care providers.” 
The mere fact of a medical injury doesn’t create the presumption of a health provider’s negligence (except in cases where a foreign object, such as a surgical sponge, is found). The way plaintiffs prove defendant care provider breached the standard of care is to have a qualified expert witness – someone of the same or similar experience as defendant – testify as to plaintiff’s position. While our medical malpractice lawyers in Naples work on a contingency fee basis (meaning we aren’t paid unless you win), expert witness fees are something plaintiff is responsible to pay, regardless of the outcome of the case. In many instances, though, when a plaintiff wins, expert witness fees will be covered by the losing party.
However, a recent ruling by Florida’s Second District Court of Appeals held that a plaintiff who prevailed in a medical malpractice lawsuit was entitled to have the defendant pay the expert attorney fees, to the extent plaintiff is able to show the fees were both reasonable and necessary, even though one of those expert witnesses was also a treating physician. Continue reading