Court Changes Rule Regarding Interlocutory Appeals: In its unusual opinion dated July 6, 2023, the Supreme Court of Florida stated: “We agree with the First District that, while Florida courts “have recognized exceptions” to the general rule that “certiorari review is an inappropriate means of challenging a trial court’s denial of a motion to dismiss,” this is not one of them … And yet we acknowledge that the Medical Malpractice Act changed the law such that an interlocutory remedy for parties facing claims that fail to satisfy its presuit requirements is warranted. Accordingly, in a concurrent opinion, we amend Florida Rule of Appellate Procedure 9.130(a)(3) to provide for interlocutory review of nonfinal orders that deny a motion to dismiss on the basis of the qualifications of a corroborating witness under subsections 766.102(5)-(9), Florida Statutes.”
Generally, certiorari review is unavailable to review an order denying a motion to dismiss, and appellate review of such nonfinal orders is limited to those specified under rule 9.130. In the case being decided, the order denying the motion to dismiss does not fall within any of the classes of orders enumerated in Florida Rule of Appellate Procedure 9.130.
As for the availability of certiorari review, Florida courts have created an exception when the presuit requirements of a medical malpractice statute are at issue since the purpose of the Medical Malpractice Act is to avoid meritless claims and to encourage settlement for meritorious claims. For a district court to determine whether the circumstances constitute one of the rare cases in which certiorari review is appropriate, the district court must answer “yes” to the following questions: Has there been (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? The last two prongs together are referred to as “irreparable harm.” They are also jurisdictional and must be analyzed before the court may even consider the first prong.
The Supreme Court of Florida stated in the case it was deciding: “While the burden of defending against litigation under ordinary circumstances does not constitute irreparable harm, in enacting the presuit requirements of the Medical Malpractice Act, the Legislature elected to treat differently the burden of defending against meritless medical negligence claims … [a]nd it is within our constitutional authority to ensure that Florida’s procedural rules of court manifest the substantive legal enactments of the Legislature.”
“We cannot say that, in its current form, Florida Rule of Appellate Procedure 9.130 adequately identifies all nonfinal orders appropriate for interlocutory review. Therefore today, on our own motion, we have also amended Florida Rule of Appellate Procedure 9.130(a)(3) to provide for interlocutory review of nonfinal orders that deny a motion to dismiss on the basis of the qualifications of a corroborating witness under section 766.102(5)-(9), Florida Statutes.”
A dissenting opinion stated: “I believe that an amendment of this significance should receive the appropriate rules committee referral and consideration beforehand. Consequently, I dissent to this portion of the majority’s analysis, consistent with my dissenting opinion in the separate opinion amending rule 9.130(a)(3).”
Source University of Florida Board of Trustees v. Carmody, No. SC2022-0068.
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