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The post below was published on Monday, February 21st, 2011 at 8:41 AM.

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Hey Legislature: That MedMal Immunity Is Illusory

This decision from the Fourth District examined section 768.135, the title of which references immunity for volunteer sports team physicians.

There is a problem. As the court pointed out, the statute’s immunity applies only where the volunteer physician acts “as a reasonably prudent person similarly licensed to practice medicine would have acted under the same or similar circumstances.” This standard essentially mimics the general tort standard for liability. After all, the volunteer team physician would not be liable in the first place if he or she acted reasonably. The court thus characterized the statute’s grant of immunity as illusory and invited the legislature to revisit whether it intended this law to have any meaning.

The court also dealt with the statutory “similar specialty” requirement for expert testimony and declined to interpret it as requiring that an expert have the same precise specialization area as the defendant.

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