PBCBA BAR BULLETINS pbcba_bulletin_June 2019 | Page 13

PERSONAL INJURY C o r n e r
Qualifications of Expert In Presuit
TED BABBITT
In order to file a claim for medical
malpractice, the plaintiff must comply
with the requirement of presuit screening.
There is some confusion as to the necessary
qualifications of an expert to provide an
affidavit sufficient to comply with the
presuit screening requirements. set forth in s. 766.102. . . .
The issue of what qualifications are
necessary in order to file an adequate
presuit affidavit was raised in the case
of Davis v. Karr, 264 So. 2d 279 (Fla. 5th
DCA 2019). In that case the Fifth District
addressed the question of whether under
Florida’s Medical Malpractice Act a presuit
affidavit submitted by a plaintiff of an
expert who did not specialize in the same
field as the defendant met the qualifications
necessary under the statutory presuit
requirements. In that case, the defendant
doctor performed a hip replacement
surgery on the plaintiff and during that
procedure it was alleged that the defendant
doctor had fractured the plaintiff’s right
lower femur. (5) A person may not give expert testimony
concerning the prevailing professional
standard of care unless the person is a
health care provider who holds an active
and valid license and conducts a complete
review of the pertinent medical records
and meets the following criteria:
The plaintiff submitted presuit affidavits
from an emergency room physician, a
radiologist and a nurse all of whom testified
that the defendant orthopedic surgeon
caused the fracture of the femur. The trial
court entered an order of dismissal with
prejudice, and entered a final judgment in
favor of the defendant doctor on the basis
that the qualifications of the healthcare
providers who provided affidavits were
inadequate as against the orthopedic
surgeon. In affirming the trial court, the
Fifth District held
Further, the existence of reasonable
grounds to support a claim of medical
negligence must be corroborated by the
claimant’s submission of a verified written
medical expert opinion from a medical
expert as that term is defined in section
766.202(6). This statute defines a medical
expert as:
[A] person duly and regularly engaged in
the practice of his or her profession who
holds a health care professional degree
from a university or college and who meets
the requirements of an expert witness as
CLE Spotlight
In 2013, the Legislature specifically
amended section 766.102(5), regarding the
requirements for qualification as an expert
witness. Pertinent to this case, the statute
now reads:
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(a) If the health care provider against whom
or on whose behalf the testimony is offered
is a specialist, the expert witness must:
1. Specialize in the same specialty as the
health care provider against whom or on
whose behalf the testimony is offered. . . .
In this case while the plaintiff provided
three affidavits from an emergency room
physician, a radiologist and a nurse, none
of these were qualified as an orthopedic
surgeon. As a consequence, the Fifth
District affirmed the final judgment entered
on behalf of the defendant doctor.
Any plaintiff’s lawyer handling a medical
malpractice case knows about the
requirement of filing an affidavit under
the presuit statutes. Under this case,
the amendment to Fla. Stat. 766.102(5)
requires that the affidavit must be from a
doctor with the same specialty training as
the defendant doctor. Failing to provide
such an affidavit will result in a dismissal
of the case with prejudice if the statute
of limitations has run at the time that
a motion to dismiss is filed alleging an
insufficient presuit compliance.
NOTE: BECAUSE A NUMBER OF PEOPLE
HAVE REQUESTED COPIES OF PAST
ARTICLES, A COMPILATION OF THESE
ARTICLES IS NOW AVAILABLE TO
MEMBERS OF THE PALM BEACH COUNTY
BAR ASSOCIATION, FREE OF CHARGE, BY
CALLING [phone].
PBCBA BAR BULLETIN
13
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