Testifying in Their Own Backyard Perilous for Florida Medical Malpractice Experts

Florida has some of the more stringent requirements for serving as a medical malpractice expert witness, and running afoul of them can lead to a bad outcome — for the expert. Just ask Dr. Dellerson, an emergency medicine expert witness who nearly lost his medical license.

An emergency medicine physician for more than forty years, Dr. Dellerson admits that he was careless in not thoroughly reading the legal requirements for testifying as an expert witness, but objects to accusations of being deceptive.

In 2013, however, the Florida Board of Medicine found that Dellerson had made "misleading, deceptive or fraudulent" statements in two separate malpractice cases by exaggerating his medical credentials. Dellerson had signed two sworn statements claiming to be board certified in emergency medicine, but his certification had expired the previous year. At the time, Dellerson was also serving as the medical director of the Hollywood and Pembroke Pines fire-rescue departments.

Initially, the Board voted to revoke Dellerson's license, something rarely done to physicians, even those found to have committed egregious malpractice multiple times. On appeal, the Board agreed to only issue a reprimand, a $7,500 fine, and bar Dellerson from testifying as an expert witness "for as long as he holds a Florida medical license."

Now, Dellerson's saga continues. He is being sued by one of the physicians he testified against. In Edward John, et. al (the Estate) vs. Scott H. Plantz, MD, and Plantz v. Richard S. Dellerson, MD, et al., 6th Cir., Pinellas County, June 20, 2017, the Estate had originally filed suit against Plantz in June 2009, alleging malpractice by Dr. Plantz. Plantz moved to have the case dismissed, alleging that Dellerson was unqualifed as an expert witness. Plantz also alleges that, between 2007 and 2010, Dellerson testified in 10 other malpractice suits in which he was unqualified.

In her June 2017 decision, Justice Patricia A. Muscarella agreed with Plantz on his case, finding that Dellerson was unqualified because he had not worked with patients in a hospital emergency room in the five years prior to testifying. Under a state law adopted in 2013, to qualify as a medical expert witness, a physician must have practiced in the same speciality as the physician who is being sued, and in some cases they must have been recently active in that same speciality.

Dellerson plans to appeal. He claims that he had been led to believe, based on the opinion of the lawyer in the case, that his work at Miami Children's Hospital was adequate to conform to the standard. His attorney, Wil Florin, argues that the judge relied on the wrong statute, and that Dellerson met the statutory requirements to be an expert witness in all of the lawsuits Dellerson testfied in.

Florin, in a Miami Herald interview, claims that it was "an inside job" by the Board of Medicine, their ruling done "to try and send a message to doctors not to testify against other doctors." Plantz claims that Dellerson "defrauded people."

Whoever is correct, it is clear that Florida has made it more difficult for physicians to testify in their own state in malpractice cases. According to the Miami Herald, in 2016 in Florida, only 10 physicians had a Florida expert witness certificate, as opposed to 1,838 out-of-state physicians who did.

While it seems Florida's tightening of expert witness requirements and other reforms have reduced the number of malpractice claims, and certainly malpractice rates have dropped, the claims that are made are more expensive to defend, thereby driving up legal expenses. Perhaps included in that increased cost is the need for out-of-state physicians.

Florida is not a unique case. It seems the trend in medical malpractice is not to testify in your own backyard.