In Chirillo v. Granicz, — So.3d —- (Fla. 2016), 2016 WL 4493536, the Florida Supreme Court formulated an important rule for psychiatric malpractice cases. Back in 2001, the First District Court of Appeal decided that psychiatrists assume no liability for an outpatient’s suicide because it is generally unforeseeable. Tort liability, it held, can properly be imposed on a psychiatrist only for a custodial psychiatric malpractice. According to the First District, an inpatient’s suicide is foreseeable and psychiatrists can effectively prevent it by restraining the patient. Lawlor v. Orlando, 795 So.2d 147 (Fla. 1st DCA 2001).
Medical malpractice suits reach federal courts through two channels: diversity and the Federal Tort Claims Act (FTCA). The FTCA framework was set up (inter alia) for suits against doctors working at veterans hospitals or another facility operated by the federal government. The diversity framework was designed for parties residing in different states. Under both frameworks, duty of care, negligence and all other substantive issues are determined by applicable state law. Federal law, on the other hand, controls every procedural and evidentiary issue. For FTCA, this rule was established in 28 U.S.C. § 2674; see, e.g., Gil v. Reed, 535 F.3d 551, 558 n.2 (7th Cir. 2008) (citing Arpin v. United States, 521 F.3d 769, 776 (7th Cir. 2008)). For diversity litigation, this rule was established by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
This rule is very clear. Far less clear, however, are the lines separating “substance” from “procedure.”
Many states have established the “same specialty” requirement for expert witnesses testifying about medical malpractice. Under this requirement, an expert witness must practice medicine in the same specialty as the defendant doctor. Failure to satisfy this requirement disqualifies the witness. Her testimony about the duty of care owed by the defendant to his patient becomes inadmissible. This requirement has led to fierce controversies that state courts have resolved in different ways: see here, here, here, here, and here.