HCBA Lawyer Magazine No. 34, Issue 1 | страница 21

some­nonfinAL­orders­in­mediCAL­negLigenCe­CAses­now­APPeALABLe

Appellate Practice Section

Continued­from­page­18

While the Court applied its existing precedent in Carmody , it concluded a change in nonfinal jurisdiction was merited . It pointed to provisions in the Medical Malpractice Act stating that “[ n ] o action shall be filed ” for medical malpractice unless certain requirements are met and that a court “ shall dismiss ” claims when certain requirements are not met . 8 Recognizing that only the Court could amend the rules regarding the scope of interlocutory appeals , the Court explained that it was within its constitutional authority to ensure those rules “ manifest the substantive legal enactments of the Legislature .” 9

Justice Labarga dissented in part in Carmody and in the

opinion amending the rule . 10 He urged that any amendment should issue through the rules committee process before enactment , rather than in a Court ’ s opinion followed by comment .

The comment period is open as of this writing . While comments may result in some refinement of the amended rule , they are not likely to result in the withdrawal of the amendment . And in the interim , nonfinal appeals of orders denying dismissal based on the qualifications of a medical malpractice presuit expert may be taken . n

1

Garrett A . Tozier , Some Punitive Damages Orders Now Immediately Appealable , HCBA Lawyer magazine , Mar . -Apr . 2022 at 19 .

2

In Re : Amendment to Florida Rule of Appellate Procedure 9.130 , No . SC2023-0701 , 2023 WL 4359489 ( Fla . July 6 , 2023 ).

3

Id . at * 1 .

4

University of Florida Board of Trustees v . Carmody , No . SC2022-0068 , 2023 WL 4359498 , * 3 ( Fla . July 6 , 2023 ).

5

Id . at * 8 .

6

Id . at * 14-15 .

7

Id .

8

Id . at * 19 ( quoting § 766.104 ( 1 ), Fla . Stat . ( 2023 ), and § 766.206 ( 2 ), Fla . Stat . ( 2023 )).

9

Id . at * 20 .

10

Carmody , No . SC2022-0068 , 2023 WL 4359489 at * 22 ; In Re : Amendment to Florida Rule of Appellate Procedure 9.130 , No . SC2023-0701 , 2023 WL

4359489 at * 1 .

11

Id .

Author : Kristin A . Norse – Kynes , Markman & Felman , P . A .

R EG I ST E R N OW

Hillsborough County Bar Association YLD Golf Tournament Friday , October 27 , 2023

PLATINUM SPONSOR

Held each fall , the YLD Golf Tournament is a long-standing tradition with the Young Lawyers Division . The event is attended by lawyers , judges , business professionals , and anyone interested in supporting the HCBA Young Lawyers Division in its efforts to better serve the community . The tournament itself is a scramble format with sponsorship opportunities , followed by a casual lunch with giveaways and prizes .

For more information , go to www . hillsbar . com .

S E P - O C T 2 0 2 3 | H C B A L A W Y E R

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