CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 1897, 2011 WL 519896
...inst him in a medical malpractice action. On appeal, the doctor raises several issues. We have reviewed them all and find no basis for reversal. We also find no basis for reversal on the issues raised in the cross-appeal. We write however to discuss section 768.135(2), Florida Statutes (2008), in the context of requiring an expert witness to have the same specialty as the doctor against whom testimony is given, and why the legislature may want to review this statute to determine what, if any, immunity it provides in its current form....
...He further argues that the immunity statute for volunteer doctors prevents an expert in another area of specialty from testifying. We disagree. Two statutes are in play within this issue, the volunteer team physician immunity statute and the medical malpractice expert witness statute. Section 768.135, Florida Statutes, titled “Volunteer team physicians; immunity,” provides: Any person licensed to practice medicine pursuant to chapter 458, chapter 459, chapter 460, chapter 461, or chapter 466: (1) Who is acting in the capacity...
...ompared to a “similarly licensed” person. Relying on this statute, the doctor argues that the plaintiffs emergency room expert’s testimony was inadmissible against him because he was not a “similar *399 health care provider” as required by section 768.135. The plaintiff responds that the statute is inapplicable because the doctor did not gratuitously render services and because section 768.135 does not limit the expert’s specialty to the same specialty as the doctor. First, we disagree with the plaintiffs argument that the bill sent by the doctor for services rendered at the emergency room exempts him from the immunity provided by section 768.135....
...Even though the expert witness had never served as a volunteer team physician, never treated an athlete on the field, never practiced orthopedic surgery, and was not board certified, he was “similarly licensed” because both the doctor and the expert were medical doctors. Section 768.135 requires no more than that....
...The statute as written allows for sufficient expertise to ensure fairness. It does that by requiring either the same specialty or an expert with sufficient experience to testify. Having resolved the appeal, a question still remains begging an answer. If section 768.135 provides immunity for a volunteer physician, how does its protection differ from basic tort law? Before a physician can be held liable for medical negligence, the plaintiff must prove that the physician fell below the standard of care of a reasonable physician under similar circumstances. See Fla. Std. Jury Instr. (Civ.) 402.4a. 4 Section 768.135 appears to provide no more protection (save the “similarly licensed” requirement) than general tort law....
