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: The Science of Happiness (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 (561) 684-2500. PBCBA BAR BULLETIN 13 Learn the Science of Happiness with Dr. Alan Schlechter, clinical assistant professor at NYU Langone Medical Center and the director of Child and Adolescent Psychiatry Outpatient Services at Bellevue Hospital Center. This program includes tips to a better well-being. 1.0 CLER; 1.0 Mental Health (ethics) credit. Order online at: https://cle. palmbeachbar.org.