Before filing suit for medical malpractice in Florida, a prospective plaintiff must conduct a statutory presuit investigation. This investigation determines whether the prospective plaintiff has “reasonable grounds to believe” that a prospective defendant provided negligent care or treatment that caused injury to him or her. § 766.203(2)(a)–(b), Fla. Stat. (2021). As part of this process, a prospective plaintiff must submit a “verified written medical expert opinion from a medical expert . . ., which statement shall corroborate reasonable grounds to support the claim of medical negligence.” Id. § 766.203(2).
The Florida Legislature defines “medical expert” as “a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102.” Section 766.102(5) outlines several qualifications an expert witness must have before he can testify against a specialist about the “prevailing professional standard of care.” The qualification relevant in a recent appeal requires the expert witness to “[s]pecialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered.”
The trial court determines whether the prospective plaintiff complied with her statutory presuit requirements, and if she did not, it must dismiss her case. § 766.206(2), Fla. Stat. (2021).
In a Florida medical malpractice case decided on May 17, 2024 by the Sixth District Court of Appeals State on Florida (“Florida Appellate Court”), the defendant gynecological oncologist who is board certified in obstetrics and gynecology performed surgery on the plaintiff that the plaintiff alleged in her Florida medical malpractice lawsuit was medically unnecessary. Plaintiff’s expert is board certified in OB-GYN but is not a gynecological oncologist.
The trial court dismissed the lawsuit, reasoning that gynecological oncology and gynecology required “different education, different training, [and] different certifications,” and the term “sub-specialty” had no independent legal
significance and that the Legislature did not mean to distinguish or exclude it from the statutory reference to “specialty.”
The Florida Appellate Court stated in its May 17, 2024 opinion: “Contextually, section 766.102(5)’s reference to “the same specialty” is part of a set of qualifications necessary before an expert witness can testify about the prevailing professional standard of care in medical malpractice actions. See §§ 766.202(6), 766.203(2). Nowhere in the operative section does it state, or even suggest, that an expert witness offering this testimony have an identical educational background and work history to a prospective defendant. If the Legislature wished to require this higher qualification level, it knows how to do so … Dr. Kendrick and Dr. Gubernick specialize in the same branch of medicine, as illustrated by their identical OB-GYN board certifications. For these reasons, the trial court dismissed Pradaxay’s action prematurely. We reverse this decision and remand for further proceedings.”
Source Pradaxay. v. Kendrick, IV, M.D., Case No. 6D23-1413.
If you or a loved one have suffered serious harm (or worse) as a result of unnecessary surgery in Florida or in another U.S. state, you should promptly find a Florida medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your unnecessary surgery medical malpractice claim for you and represent you or your loved one in an unnecessary surgery malpractice case, if appropriate.
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