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Court order reinstating medical malpractice complaint after dismissal

Appeals court quashes trial court order reinstating medical malpractice complaint after dismissal based on failure to comply with presuit expert “same specialty” requirement.  

There is a statute in Florida that says that in a medical malpractice case, the parties can only bring in expert witnesses to testify about the appropriate standard of care who are in the exact same medical specialty as the defendant health care provider who is being sued.   So, for example, even though neurosurgeons and orthopedic surgeons may both perform an identical type of spine surgery, the law would prohibit a neurosurgeon from testifying an orthopedist did the surgery wrong or vice versa.   In this case, a former patient sued her orthopedist for medical malpractice.  During the presuit part of the case, the patient used an expert affidavit from a podiatrist instead of an orthopedist, ignoring the defendants’ assertion that the affidavit was improper.  After the patient filed suit, the defendants moved to dismiss the case based on the patient’s failure to comply with presuit requirements.  The Second District Court of Appeals found that since the defendant was a board-certified orthopedic surgeon and the patient’s expert affidavit was from a board-certified podiatrist, the affidavit was improper on its face.  The Court also noted that it was not ruling on the issue of the constitutionality of the same specialty requirement or the effect of a Florida Supreme Court action in which the Supreme Court declined to adopt the “same specialty” requirement to the extent it is procedural (see In re Amendments to the Florida Evidence Code, 210 So. 3d 1231, 1239 (Fla. 2017).  The patient apparently neglected to raise or argue those issues during the appeal.

Clare v. Lynch, __ So. 3d __, 2017 WL 2664320 (2d DCA 6-21-2017).

McMillen Law Firm Comment:  It is believed that the Florida Supreme Court’s refusal to adopt the “same specialty” statutory requirement, to the extent it is procedural, will likely mean the same specialty law will not be strictly followed in Florida Courts in the future.  On the other hand, the safest thing to do for the time being is probably to continue to use the exact same specialty as an expert if you can.

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