Same, Similar, and Everything in Between: Appellate Courts’ Review of the Same-Specialty Requirement for Presuit Experts in Medical Malpractice Cases
The primary objective of Florida’s medical malpractice presuit process is to keep unsupported lawsuits from proceeding into litigation.1 To complete a statutorily mandated presuit investigation, a plaintiff must retain an expert to provide an opinion supporting the plaintiff’s medical malpractice claim.2 Compliance with this and all other presuit requirements is a condition precedent to filing suit.3
Whether a plaintiff’s presuit expert opinion complies with the statutory requirements is a common point of attack in defendants’ motions to dismiss medical malpractice lawsuits. Often, the challenge pertains to whether the expert is of the necessary specialty — a matter that has been the subject of judicial interpretation, legislative change, and vigorous debate over the years. This article tracks the evolving law on this issue, provides recommendations for counsel handling these matters in Florida’s trial and appellate courts, and proposes a procedure that may better serve the parties and the policy behind the presuit statutory scheme.
Origins of the Presuit Process
Since the mid-1980s, the law has responded to an ever-shifting tide of public opinion regarding medical malpractice claims with efforts to balance a number of often competing interests: a plaintiff’s ability to access justice, a defendant’s ability to avoid spurious claims and excessive judgments, insurers’ ability to offer reasonable premiums for professional liability insurance, and the public’s ability to rely on a quality and cost-effective health-care system. Ongoing struggles in these and other respects, individually and collectively, came to be referred to as Florida’s “medical malpractice crisis.”4
In 1988, in an effort to address various aspects of the perceived crisis,5 the Florida Legislature passed laws providing for mandatory presuit investigation and voluntary arbitration in medical malpractice cases.6 As the legislature described in its findings, the resulting statutory scheme was intended to facilitate the prompt resolution of medical malpractice claims and to prevent unsupported claims from going forward.7
As part of a plaintiff’s presuit investigation, the plaintiff must review his or her claim against each potential defendant, consult with a qualifying medical expert, and obtain an opinion from such an expert supporting the claim.8 The opinion must be provided in an affidavit with the plaintiff’s presuit notice.9 These requirements are “more than mere technicalities,” as they serve to demonstrate the threshold legitimacy of a plaintiff’s claim and to place the prospective defendant on notice.10
Evolving Requirements for Presuit Experts
When originally enacted, the presuit statutory scheme provided little guidance regarding the type of expert upon which a plaintiff could rely.11 This lack of guidance and the resulting potential for a broad spectrum of rulings conflicted with Florida courts’ longstanding recognition that a plaintiff’s expert should be experienced in the defendant’s specialty and knowledgeable in the corresponding day-to-day obligations.12
In 2003, the legislature “eliminated the distinction between an expert for presuit purposes and for [those] testifying at trial,” holding experts at both stages to the same standard.13 It amended F.S. §766.102 to require that such experts “[s]pecialize in the same specialty…or…a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients,” among other requirements.14
This “same or similar specialty” requirement was both narrow enough to cause consternation among plaintiffs and broad enough to concern defendants. As courts grappled with its application, one of the issues that frequently arose was whether the requirement left room for an issue-based approach, whereby the applicable specialty could be defined as the type of procedure or medical care at issue.15 While courts considered such an interpretation on a case-by-case basis, the underlying expectation that the plaintiff’s expert be familiar with the defendant’s day-to-day obligations remained largely intact.16
In 2013, in response to a perceived need to further tighten the specialty requirement, the legislature amended F.S. §766.102 to remove the “similar specialty” option.17 The amendment also removed a provision that allowed “the trial court to disqualify or qualify an expert witness on grounds other than the qualifications [listed in the statute],”18 ostensibly turning the vast majority of courts’ decisions on these issues into matters of statutory compliance.
Availability of Review
When a plaintiff’s presuit notice is challenged by a motion to dismiss, the trial court must rule on the motion, making express findings in support of its decision.19 If the motion is granted, the result is dismissal of the medical malpractice claim, although the plaintiff may perfect the notice and refile within the applicable statute of limitations.20 If the motion is denied, the defendant faces litigating a claim that might not be authorized in the first instance.
If presuit requirements are to serve their intended purpose, they must be subject to enforcement and any necessary review at the outset of litigation. For a defendant, certiorari is currently the only means of review available for the denial of a motion to dismiss based on presuit compliance;21 as such, rulings are not enumerated in Fla. R. App. P. 9.130 as permissible nonfinal appeals.
A defendant’s petition for writ of certiorari must establish “(1) a departure from the essential requirements of the law (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.”22 The very purpose of the presuit statutory scheme has been deemed to satisfy the second two jurisdictional prongs.23 This is based on the notion that presuit requirements “cannot be meaningfully enforced postjudgment because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance.”24
Demonstrating the first requirement — a departure from the essential requirements of the law — can be more challenging.25 Such a departure is defined as more than the “mere existence of legal error”; rather, it involves the “violation of [a] clearly established principle of law resulting in a miscarriage of justice.”26 The failure to enforce presuit requirements for expert affidavits may meet this standard, so long as the issue is truly one of statutory compliance.27
A departure from the essential requirements of the law cannot be established, however, when the defendant’s argument would require re-weighing evidence of the expert’s credentials.28 In Williams v. Oken, 62 So. 3d 1129 (Fla. 2011), the Florida Supreme Court held that certiorari was improper when the trial court allowed an emergency room physician to testify against a cardiologist based on a factual finding that the expert was familiar with the applicable standard of care.29 Applying the same-or-similar-specialty standard in effect at the time, the court held that the trial court had not departed from the essential requirements of the law.30 In theory, the 2013 same-specialty amendment should limit the need for fact-based inquiries like that at issue in Williams, facilitating a defendant’s ability to obtain certiorari review.31
A plaintiff’s ability to seek review is more straightforward. For a plaintiff who has suffered dismissal of a medical malpractice claim for failure to comply with presuit requirements, the plaintiff may appeal as a matter of right.32 This is because an order of dismissal is a final, appealable order.33 While an appellate court generally reviews questions of presuit compliance for abuse of discretion, the question of whether a plaintiff has offered an expert opinion that complies with the statutory requirements is typically treated as a matter of law reviewable de novo.34
If a plaintiff’s medical malpractice claim is joined with other claims, however, the ability to seek review requires more analysis. Specifically, if the medical malpractice claim is the only claim against the subject defendant, and the remaining claims are against other defendants, the ruling is considered a partial final judgment and is subject to appeal.35 The failure to appeal such a ruling within 30 days will result in the plaintiff’s waiver of appellate rights as to the subject defendant.36
The dismissal of the medical malpractice claim while other claims remain pending as to the same defendant is also considered a partial final judgment and is subject to appeal at the plaintiff’s option, provided that the claim is a “separate and distinct cause of action that is not interdependent with other pleaded claims.”37 If the ruling does not satisfy this standard, the plaintiff must wait until the case concludes to seek review.38
Time is typically of the essence in these matters, as a plaintiff must ensure that a compliant presuit notice and affidavit are provided within the applicable statute of limitations period.39 Accordingly, the most prudent course for a plaintiff is often to secure an appropriate expert affidavit, perfect the presuit notice, and refile the lawsuit. Otherwise, if the statute of limitations expires and the dismissal is affirmed, the plaintiff’s action will be time-barred.40
Defendants must be mindful of these timing considerations as well and should promptly challenge presuit compliance during the presuit investigation and at the outset of the lawsuit.41 Failing to raise the challenge promptly, particularly when the statute of limitations runs in the interim, may result in the challenge being subject to an argument of waiver or estoppel.42 In such circumstances, the defendant may be forced to proceed with the litigation notwithstanding an otherwise meritorious challenge to presuit compliance.43
Proposal for a New Procedure
In practice, both plaintiffs and defendants generally have access to proceedings to review dismissal rulings on matters of presuit compliance. However, the differences between their respective vehicles for review may have a disparate impact. For example, while a trial court is deemed to have departed from the essential requirements of the law for purposes of certiorari review when it fails to hold an expert to the statutory requirements, any gray area in such an inquiry may result in the failure to establish this element of certiorari jurisdiction.44 In this way, certiorari can never be deemed a truly comparable remedy to a plaintiff’s right of direct appeal.
In addition, appeals and certiorari proceedings follow different schedules. In certiorari proceedings, the defendant’s full petition on the merits must be filed within 30 days of the order denying the defendant’s motion to dismiss.45 Appellate review of a final order of dismissal, on the other hand, is obtained by filing a notice of appeal within 30 days of the dismissal, with the initial brief on the merits being due 70 days after the notice of appeal is filed.46 There is also a difference in the availability of oral argument, which is routinely permitted in appeals, but rarely granted in certiorari proceedings.
As the accessibility and pace of the existing review structure poses problems for both sides, rule amendments providing mechanisms for more meaningful appellate review may be advisable. To ensure a plaintiff’s ability to obtain prompt review of a dismissal, Fla. R. App. P. 9.110 could be amended to give the plaintiff the option of proceeding according to the expedited schedule for nonfinal appeals when the dismissal is based on a question of presuit compliance.47 Correspondingly, Rule 9.130 governing nonfinal appeals could be amended to permit a defendant to appeal the denial of a motion to dismiss on such grounds.48 Providing equal and expeditious access to appellate review in this manner may be the best way to preserve the legislative intent of the presuit statutory scheme.
While the same-specialty requirement appears unequivocal, nuance is certain to make its way back into this aspect of presuit compliance. Further litigation on this issue can be expected as physicians continue to become more subspecialized and with the expansion of care provided by other types of practitioners. These developments could ultimately cause the pendulum to swing back to a more issue-based or procedure-based approach. The fact-based nature of such an approach would negatively impact the availability of review by certiorari, further supporting the need for an amendment to provide a true appellate remedy under Rule 9.130.
1 See Fla. Stat. §766.201(2); see also Largie v. Gregorian, 913 So. 2d 635, 639 (Fla. 3d DCA 2005).
2 Fla. Stat. §766.201(2), 766.203(2).
3 Fla. Stat. §766.106; see also Ingersoll v. Hoffman, 589 So. 2d 223, 224 (Fla. 1991).
4 See generally Estate of McCall v. U.S., 134 So. 3d 894, 906 (Fla. 2014).
5 Part of the debate surrounding the medical malpractice crisis is the question of whether a crisis ever truly existed. Id.
6 See Cohen v. Dauphinee, 739 So. 2d 68, 70-71 (Fla. 1999). These laws expanded upon measures adopted in 1985, and enacted in 1987, which required presuit notice supported by a good faith certification. See id. A plaintiff could support such a certification by securing an expert’s written opinion, but this was not required at the time. Id.
7 Laws of Fla. Ch. 88-1, §48.
8 See Largie, 913 So. 2d at 638-39.
9 See Fla. Stat. §766.203(2).
11 Laws of Fla. Ch. 88-1, §§48-53, 164-68.
12 See Young v. Bd. of Hosp. Dirs. of Lee County, 426 So. 2d 1080, 1081 (Fla. 2d DCA 1983) (affirming the trial court’s ruling that a psychiatrist was not a “similar health care provider” for purposes of testifying against a psychiatric nurse and holding “the record supports the [trial] court’s dissatisfaction with the psychiatrist’s experience and knowledge relevant to the standard of care [at] issue, including, for example, the psychiatrist’s lack of familiarity with the day-to-day practices of a psychiatric nurse”); see also Yocom v. Wuesthoff Health Systems, Inc., 880 So. 2d 787, 789-90 (Fla. 5th DCA 2004) (observing the insufficiency of a presuit affidavit from a chiropractor where the prospective defendant was a surgeon who had performed a urological procedure, as there was no indication that the chiropractor had the “requisite experience or training” to opine on the surgeon’s performance of the procedure at issue).
13 See Paley v. Maraj, 910 So. 2d 282, 283 (Fla. 4th DCA 2005).
14 Fla. Stat. §766.102(5)(a)(1) (2003). Different expert requirements apply when the defendant is a generalist or practices in emergency care. See Fla. Stat.§766.102(5)(b)-(c), (9). The law pertaining to those requirements is outside the scope of this article.
15 See, e.g., Weiss v. Pratt, 53 So. 3d 395, 401 (Fla. 4th DCA 2011).
16 See id. (recognizing an emergency room physician’s ability to testify against an orthopedic surgeon when the plaintiff’s claim was based, in part, on the defendant’s failure to place the plaintiff on a backboard, where the emergency room physician had expertise on that specific matter, but maintaining “[h]ad the allegations concerned some aspect of orthopedic surgery requiring a specific level of specialization, the emergency room physician may not have been qualified to render an expert opinion”); see also Edwards v. Sunrise Ophthalmology ASC, LLC, 134 So. 3d 1056, 1059 (Fla. 4th DCA 2013) (“If we were to allow an infectious disease doctor to be considered a similar specialty to an ophthalmologist…[,] we would impose the infectious disease doctor’s expertise on a dissimilar eye-surgery specialist. This vitiates the very nature of a physician’s specialization.”).
17 Ch. 2013-108, §2, Laws of Fla. In In Re: Amendments to Fla. Evidence Code, 210 So. 3d 1231, 1239-41 (Fla. 2017), the Florida Supreme Court declined to adopt the 2013 amendment to the extent it is procedural, noting constitutionality concerns raised during the rulemaking process.
18 Laws of Fla. Ch. 2013-108, §2.
19 See PP Transition, LP v. Munson, 232 So. 3d 515, 516 (Fla. 2d DCA 2017).
20 Kukral v. Mekras, 679 So. 2d 278, 283-85 (Fla. 1996).
21 See Williams v. Oken, 62 So. 3d 1129, 1133-34 (Fla. 2011).
22 Bd. of Regents of State v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002).
23 See St. Joseph’s Hosp., Inc. v. Doe, 208 So. 3d 1200, 1201-02 (Fla. 2d DCA 2017).
24 Id. at 1202 (quoting Parkway Bank v. Ft. Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla. 2d DCA 1995)).
25 See Williams, 62 So. 3d at 1132-33.
26 Id. at 1133 (quoting Haines City Cmty. Dev’t v. Heggs, 658 So. 2d 523, 528 (Fla. 1995)).
27 See Clare v. Lynch, 220 So. 3d 1258, 1261 (Fla. 2d DCA 2017) (holding the trial court departed from the essential requirements of the law when it granted rehearing of its dismissal and reinstated the plaintiff’s complaint despite the plaintiff’s noncompliant presuit notice). Co-author Gabrielle Osborne’s firm handled preparation of a memorandum addressing the constitutionality and raising the waiver argument in this case.
28 See Williams, 62 So. 3d at 1135.
29 Id. at 1131-32, 1137.
30 Id. at 1135-37.
31 Cf. Clare, 220 So. 3d at 1261 (“The trial court’s ruling in this case, which effectively resurrects the prior statutory language by crediting an affidavit from a provider in a ‘similar’ specialty, constitutes a clear departure from the essential requirements of the law that cannot be countenanced.”).
32 See Fla. R. App. P. 9.110.
33 See Klein v. Pinellas County, 685 So. 2d 945, 945-46 (Fla. 2d DCA 1996).
34 Oliveros v. Adventist Health Systems/Sunbelt, Inc., 45 So. 3d 873, 876 (Fla. 2d DCA 2010); but see Morris v. Muniz, 189 So. 3d 348, 350-51 (Fla. 1st DCA 2016) (holding the trial court did not abuse its discretion in dismissing the plaintiff’s claim based on findings that the plaintiff disregarded requests and court orders to comply with discovery regarding her presuit expert’s qualifications), rev. granted, SC16-931 (Jan. 19, 2017).
35 Fla. R. App. P. 9.110(k).
38 Certiorari review would likely be unavailable in such circumstances, as the policy behind exercising certiorari jurisdiction to review the denialof a motion to dismiss arguably would not be served in reviewing an order grantingsuch a motion.
39 See Holden v. Bober, 39 So. 3d 396, 399 n.3 (Fla. 2d DCA 2010). Co-author Gabrielle Osborne handled the appeal after the court issued remand in this case.
40 See id.
41 See Oliveros, 45 So. 3d at 875-76 (holding that the trial court abused its discretion when it allowed defendants to raise a presuit compliance challenge for the first time after the statute of limitations expired, almost one year after receiving the plaintiff’s presuit notice).
42 See id.
43 See id.
44 See Williams, 62 So. 3d at 1132-37.
45 Fla. R. App. P. 9.100(b), (c)(1).
46 Fla. R. App. P. 9.110(b), (f).
47 Fla. R. App. P. 9.110(m) allows final appeals of questions of insurance coverage — matters with similar timing concerns — to proceed on the expedited schedule for nonfinal appeals pursuant to Rule 9.130.
48 Such an amendment would not have to be limited to orders denying motions to dismiss, as it could encompass nonfinal orders granting motions to dismiss as well, accounting for the limited category of such orders that do not qualify as final judgments or partial final judgments due to their joinder with related claims. See note 38 and accompanying text.
SARAH LAHLOU-AMINE is a shareholder at Banker Lopez Gassler, P.A., in Tampa. She is a board certified appellate specialist and chair-elect of The Florida Bar Appellate Practice Section. She obtained a J.D. with honors from Stetson University College of Law, and a B.A., summa cum laude, from the University of South Florida.
GABRIELLE OSBORNE is a partner at Beytin, McLaughlin, McLaughlin, O’Hara, Bocchino & Bolin, P.A., with offices in Tampa and Orlando. She has focused her career in the area of medical malpractice and serves as her firm’s appellate counsel. She obtained a J.D. with honors from Stetson University College of Law, and a B.A., summa cum laude, from Florida State University.
This column is submitted on behalf of the Appellate Practice Section, Kristin A. Norse, chair, and Brandon Christian and Thomas Seider, editors.