Medical malpractice cases are among the more complicated types of personal injury claims in Florida. One reason for this is that state law imposes a number of hurdles that medical malpractice victims must clear before their case can even be heard in court. Among these hurdles is what is known as the expert witness requirement.
Essentially, you cannot sue a doctor for malpractice without first conducting a pre-suit “investigation” to determine you have reasonable grounds for bringing such a claim. This investigation requires the victim to obtain a “verified written medical expert opinion.” The expert must be an active and licensed healthcare provider who is in the same specialty as the provider who is being sued. An expert is considered “active” if they have been engaged in clinical practice, instruction, or clinical research within the three years prior to the alleged act of malpractice.
The purpose of the expert opinion is to establish that the defendant healthcare provider deviated from the applicable “standard of care” for people in that profession or specialty. This expert opinion is mandatory. If the judge determines the expert is not qualified under the law, the court can strike the opinion and dismiss the medical malpractice lawsuit if the plaintiff does not have another qualifying expert opinion available.
University of Florida, Teaching Hospital Allege Doctor Not Qualified to Testify on Nurse-Practitioner’s Conduct During Neurosurgery
A recent decision from the Florida Supreme Court has added yet another wrinkle to the expert opinion requirement. The Court decided to rewrite the rules governing appeals in medical malpractice cases. This rewrite allows malpractice defendants to immediately appeal a trial court’s decision not to dismiss a lawsuit due to an unqualified expert witness.
The case that prompted the Supreme Court’s action, University of Florida Board of Trustees v. Carmody, involved an alleged act of medical malpractice by a neurosurgeon at the University of Florida College of Medicine. The defendant performed spinal fusion surgery on the plaintiff. This is a procedure designed to connect two or more bones in part of the spine, which can help to stabilize the spine and reduce pain. Unfortunately, in this case the plaintiff’s pain started to worsen after the procedure.
Eventually, the plaintiff was paralyzed. Emergency room doctors determined that the plaintiff had developed an abscess on her spine. This required two additional surgeries. But even after these procedures, the plaintiff was not restored to her previous condition.
The plaintiff subsequently filed a medical malpractice lawsuit against the neurosurgeon, the University of Florida, and Shands Teaching Hospital, where the spinal fusion surgery took place. In addition to the surgeon, the plaintiff alleged that a nurse-practitioner employed by Shands was also negligent in providing care. As part of the pre-suit requirements of Florida law, the plaintiff submitted the expert opinion of a licensed medical doctor who specialized in internal medicine, hospital medicine, and cardiology.
Before a Florida Circuit Court judge, the neurosurgeon argued the expert was not qualified to testify as to the standard of care for neurosurgery. The judge agreed and dismissed the neurosurgeon as a defendant. But the judge declined to dismiss the University and the teaching hospital as the issue of the nurse-practitioner’s alleged malpractice was still in play. And the judge found the plaintiff’s expert was qualified to testify as to the standard of care for a nurse-practitioner.
The defendants immediately appealed that decision to the Florida First District Court of Appeal. Normally, appellate courts in Florida will not hear appeals from non-final decisions. Here, the judge’s ruling that the expert was qualified to testify was not a final order. And the First District said as much in dismissing the appeal.
The Florida Supreme Court also agreed that under the current rules governing medical malpractice lawsuits, the defendants could not appeal the trial judge’s order at this time. But then the Court decided, on its own initiative, to change the rules. The Court reasoned that since one of the purposes of Florida’s Medical Malpractice Act was to protect healthcare providers from the “burden of defending against meritless medical negligence claims,” it made sense to allow defendants to immediately appeal a denial of a motion to dismiss a malpractice lawsuit based on the qualifications of the plaintiff’s expert witness.
Speak with Our South Florida Medical Malpractice Lawyers Today
As you can see, when it comes to medical malpractice cases in Florida, plaintiffs have to play by a different set of rules than other personal injury victims. This is why it is crucial to work with an experienced Miami medical malpractice attorney who understands this area of the law intimately and can put that knowledge to work for you. So if you have been the victim of medical negligence, contact Dolan Dobrinsky Rosenblum, LLP, at 305-371-2692 today to schedule a free consultation.