PERSONAL INJURY CORNER
What Constitutes the Same Specialty in a Medical Malpractice Case
TED BABBITT
In Martinez v . Perez ; 2d ( case 21-653 ), Fla . 2d DCA Sept . 23 , 2022 the Appellate Court was presented with the issue of what constitutes the same specialty with reference to the required Affidavit which must be filed prior to the running of the Statute of Limitations in a medical malpractice case .
In this case , the lower court dismissed with prejudice a medical malpractice complaint against a Board Certified Ophthalmologist finding that the Plaintiff failed to comply with the presuit requirements of Florida Statute chapter 766 . The Second District found that Plaintiff ’ s expert did meet the presuit requirements and therefore did not reach the collateral issue of whether the Defendant had waived the necessity for a written corroborating expert Affidavit because the Defendant allegedly had failed to provide medical records within 10 days of Plaintiff ’ s request as required by § 766.204 ( 2 ).
It was undisputed that the Notices of Intent were served in this case without the required sworn written medical corroboration ; however , the presuit investigation was extended and during that time and just prior to the passage of the Statute of Limitations Plaintiff did serve an Affidavit by a Board Certified Ophthalmologist confirming the alleged malpractice .
The Defendant ' s contention was that the serving of the Affidavit was insufficient because it failed to accompany the notices which were served much earlier . The Defendant also contended that Plaintiff ’ s expert did not practice the same specialty because , while he was a Board Certified Ophthalmologist he had completed training in Neuro Ophthalmology and practiced as a Neuro Ophthalmologist .
The Court cited Dial 4 Care , Inc . vs .
Brinson , 319 So . 3d 111 ( Fla . 3d DCA 2021 ) which held that despite the language of Florida Statute § 766.2032 that states that a verified written medical expert opinion “ shall be provided … at the time the Notice of Intent to Initiate Litigation is mailed , that even if the corroborating Affidavit is not provided contemporaneously with the Notice of Intent to Initiate Litigation the Plaintiff can cure that deficiency by providing the Affidavit before the expiration of the Statue of Limitations .
The Court cited Florida Statute § 766.202 ( 6 ) which defines the term medical expert with the help of Florida Statute § 766.102 ( 5 ) which requires that the expert in question must “ Specialize in the same specialty as the healthcare provider against whom or on who ’ s behalf the testimony offered .” In determining the question of whether a doctor is in the same specialty even though he is more qualified than the Defendant the court cited Patry v . Capps 633 So . 2d 9 ( Fla . 1994 ) where the Supreme Court of Florida held “ The medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict a Florida citizen ’ s constitutionally guaranteed access to the courts , while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses ….” when possible the presuit notice and screening statute should be construed in a manner that favors access to the courts .”
The Court referred to a number of cases which found that the testifying doctor did not meet the presuit requirement of practicing in the same specialty including where a plastic reconstructive surgeon was found not to practice in the same specialty as an orthopedic surgeon , where an emergency room physician radiologist and nurse did not satisfy the same specialty requirement where the prospective Defendant was an Orthopedic Surgeon , where an infectious disease doctor was not in the similar specialty to an Ophthalmologist .
However , in this case the Court noted that Plaintiff ’ s expert was indeed a
Board Certified Ophthalmologist just like the Defendant and the fact that he had completed an additional fellowship in Neuro Ophthalmology did not undermine the fact that he remained a board certified Ophthalmologist just like the Defendant . The fact that he had even more qualifications than the Defendant hardly disqualified him to be an expert in this case and therefore the Court reversed the Order of Dismissal and reinstated the case .
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