The District Court of Appeal of Florida Second District (“Florida Appellate Court”) stated in its September 23, 2022 opinion: “Because Ms. Martinez’s expert affidavit satisfies the “same specialty” requirement and because she provided the expert affidavit prior to the expiration of the statute of limitations period, the trial court erred in dismissing her complaint with prejudice. Accordingly, we reverse the order of dismissal.”
The Underlying Claim
After undergoing nasal surgery to remove nasal polyps, Ms. Martinez presented to her doctor with swelling and pressure behind and around her left eye. Her doctor referred her to Dr. Perez Ortiz, a board certified ophthalmologist working at Perez Eye Center. Ms. Martinez alleged that Dr. Perez Ortiz negligently misdiagnosed the condition affecting her left eye and that the treatment he provided was inadequate for her condition. She further alleged that as a result of Dr. Perez Ortiz’s failure to properly diagnose and treat her condition, she suffered permanent damage to her eye.
Pursuant to section 766.106(2)(a), a potential plaintiff must serve on any potential defendant a presuit notice of intent to initiate litigation for medical negligence (notice of intent) after the potential plaintiff completes a presuit investigation pursuant to section 766.203(2). The potential plaintiff must also provide any potential defendant with a “verified written medical expert opinion from a medical expert as defined in s. 766.202(6),” which serves as corroboration of “reasonable grounds to support the claim” for medical negligence litigation. § 766.203(2).
Section 766.102(5) provides in relevant part:
(5) A person may not give expert testimony concerning the prevailing professional standard of care unless the person is a health care provider who holds an active and valid license and conducts a complete review of the pertinent medical records and meets the following criteria:
(a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:
1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered . . . .
In the case the Florida Appellate Court was deciding, the trial court found that Ms. Martinez failed to comply with the presuit requirements because her expert, Dr. Hamburger, is not engaged in the “same specialty” as Dr. Perez Ortiz. The Florida Appellate Court stated: “Here, it is undisputed that Dr. Perez Ortiz is a board-certified ophthalmologist. It is also undisputed that Dr. Hamburger is a board-certified ophthalmologist. Dr. Perez Ortiz and Perez Eye Center split hairs by arguing that Dr. Hamburger does not practice in the same specialty where, after he finished his ophthalmology residency, he completed a one-year fellowship in neuroophthalmology … As a board-certified ophthalmologist, Dr. Hamburger is clearly qualified to testify as an expert in ophthalmology. The fact that he completed an additional fellowship in neuro-ophthalmology does not undermine the fact that he remains a board-certified ophthalmologist—just like Dr. Perez Ortiz. Therefore, both Dr. Perez Ortiz and Dr. Hamburger specialize in the “same specialty” as required by the statute. Accordingly, Dr. Hamburger’s affidavit fulfilled the presuit requirement of providing a written medical expert opinion from a specialist in the “same specialty” as the defendant healthcare provider.”
The Florida Appellate Court held: “Because Dr. Hamburger practices in the “same specialty” as Dr. Perez Ortiz, his affidavit met the statutory requirement for medical experts under section 766.202(6). Further, because this affidavit was provided to Dr. Perez Ortiz and Perez Eye Center prior to the expiration of the statute of limitations, Ms. Martinez complied with the statutory presuit requirements, and it follows that the trial court erred in dismissing Ms. Martinez’s action with prejudice.”
Source Martinez v. Ortiz, No. 2D21-653.
If you or a loved one have suffered serious harm (or worse) as a result of medical negligence in Florida or in another U.S. state, you should promptly find a Florida medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your U.S. state who may assist you.
Turn to us when you don’t know where to turn.