Surgeon motion to dismiss malpractice suit denied.

Florida appeals court holds an evidentiary hearing not always required when ruling on the motion to dismiss for failure to comply with malpractice pre suit screening requirements found in Chapter 766, Florida Statutes. The estate of a patient who died four days after an orthopedic surgery sued the surgeon for wrongful death, alleging that his negligent failure to monitor the patient after her release from the postanesthesia care unit led to her death.

Along with her pre-suit notice of intent to initiate litigation, the plaintiff sent a verified written medical expert opinion from a doctor specializing in internal medicine and pulmonology. The orthopedic surgeon later filed a motion to dismiss the complaint, arguing that the verified written opinion was deficient “on its face” because the expert did not meet the “same or similar specialty” requirement for pre-suit experts under §766.102(5)(a)1, Florida Statutes (2012). [Note: The words “or similar” were removed from the statute in 2013.]

Neither party ever asked for an evidentiary hearing, but after the trial court denied the defendant’s motion to dismiss, the defendant filed a petition for writ of certiorari based on the trial court’s failure to hold one. The Third District Court of Appeal denied the petition, holding that, although the question of pre-suit compliance is often determined through an evidentiary hearing, there is no firm requirement that one be conducted, especially when it was never requested. Therefore, the defendant failed to show a departure from the essential requirements of law.
Nieves v. Viera, __ So. 3d __, 39 Fla. L. Weekly D 2421 (3d DCA 11-19-14).