By: Esther E. Galicia
As published in the Daily Business Review
Plaintiff’s service of the statutorily-required written corroborating affidavit of an expert in the “same specialty” as the defendant healthcare provider prior to the expiration of the statute of limitations precludes dismissal with prejudice of plaintiff’s medical malpractice complaint even though the affidavit was not contemporaneously served with plaintiff’s presuit notices of intent to initial litigation. In Martinez v. Ortiz, No. 2D21-653, 2022 WL 4389891 (Fla. 2d DCA Sept. 23, 2022), the Second District therefore reversed the trial court’s dismissal order predicated on the fact that plaintiff’s notices of intent were not accompanied by the required written corroborating medical expert opinion and that plaintiff’s expert did not practice in the “same specialty” as the defendant doctor.
With regard to the timeliness of the corroborating medical expert affidavit, the Martinez court explained that while Section 766.203(2) requires a verified written medical to be provided when the notice of intent is served, “the plaintiff can cure this deficiency by providing the affidavit before the expiration of the statute of limitations.” In Martinez, it was undisputed that the plaintiff provided an expert corroborating affidavit to the defendant ophthalmologist and his eye center before the statute of limitations expired. The appellate court accordingly concluded that plaintiff cured any deficiency.
The Second District also rejected the defense’s argument that plaintiff’s presuit expert – who was board-certified in ophthalmology and had additional training and experience in neuro-ophthalmology – was not an expert in the “same specialty” as the defendant general ophthalmologist. The Martinez court recognized that while the term “same specialty” is not defined, the language of Section 766.102 “is clear and requires the patient to provide a presuit affidavit from a specialist in the same field as the prospective healthcare defendant.” In the court’s view, the defendants “split hairs by arguing that [plaintiff’s expert] does not practice in the same specialty where, after he finished his ophthalmology residency, he completed a one-year fellowship in neuro-ophthalmology.” The district court found that plaintiff’s presuit expert, a board-certified ophthalmologist, “clearly qualified to testify as an expert in ophthalmology.” Stated differently, both the defendant doctor and plaintiff’s expert specialized in the “same specialty,” as required by Section 766.102(5). The fact that plaintiff’s expert had additional training in neuro-ophthalmology did “not undermine the fact that he remains a board-certified ophthalmologist — just like [the defendant].” The Martinez court thus held that plaintiff fulfilled her presuit obligation of providing the written opinion of a medical expert in the “same specialty” as the defendant physician.
Esther E. Galicia is a shareholder in Fowler White’s appellate practice group where she focuses her practice in civil appeals at all levels and provides litigation and trial support. She received her J.D., cum laude, from the University of Miami School of Law.
Reprinted with permission from the October 21, 2022 online edition of the Daily Business Review© 2022 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com.