In Florida medical malpractice cases, a plaintiff must conduct an investigation among experts to see if there are reasonable grounds to believe a particular medical professional was negligent and that the negligence led to his or her injury. If so, the plaintiff must notify each defendant of the intent to file suit against them for medical negligence, and include a written “medical expert opinion” from a medical expert.
If the defendant is a specialist, the medical expert chosen by the plaintiff must be one who is in the same specialty as the provider and has experience treating similar types of patients. The concept of “similar specialty” has been contentious in Florida medical malpractice law. For example, is an ER physician qualified to testify against an orthopedic surgeon? May a pulmonologist testify against an ER doctor?
In a recent case, a plaintiff filed a lawsuit against her ophthalmologist and surgical center after getting a lower eyelid surgery. She claimed that she’d gotten a bacterial infection during the surgery, which led to her needing more surgery, in spite of which her eye was disfigured.
The plaintiff served the ophthalmologist with a Notice of Intent to Initiate Litigation for Medical Malpractice. She also submitted an affidavit from an infectious disease doctor who opined that she had gotten infected because the ophthalmologist had failed to sterilize his equipment for the surgery.
The ophthalmologist told the plaintiff’s lawyer that he didn’t think the notice was sufficient because the infectious disease doctor was not an ophthalmologist. He then filed an answer asserting that the plaintiff was not compliant with Florida’s statutory requirements for medical malpractice suits and asked the court to determine whether the infectious disease doctor was an expert.
The trial court granted the ophthalmologist’s motion, ruling that the affidavit from the infectious disease doctor did not meet the requirement of an affidavit from a specialist. The plaintiff appealed, arguing that the ophthalmologist had waived compliance with the statutory requirement by failing to specify it in his answer.
The appellate court disagreed, explaining that the answer pled that the plaintiff didn’t serve the appropriate, requisite medical opinion. This, plus the letter sent by the ophthalmologist to the plaintiff’s lawyer, was enough to give the plaintiff notice of what the ophthalmologist was arguing.
The appellate court explained that in this case the complaint alleged that the ophthalmologist held himself out as a specialist in ophthalmic plastic and reconstructive surgery, but breached the standard of care for sterile technique and proper sterilization.
The appellate court reasoned that the medical condition at issue was ophthalmic. The infectious disease doctor was not an eye surgeon–he didn’t specialize in the same thing. The court pointed out that the ophthalmologist had referred the plaintiff to an infectious disease specialist once he learned of the infection, precisely because he did not qualify as that type of specialist (or vice versa).
The appellate court noted that there are cases in which the allegations involve common medical knowledge that is shared between doctors of different specialties. But more often, Florida law requires plaintiffs to consult with the same type of specialist as the one against whom they intend to bring a malpractice suit.
If you are injured while in a doctor’s care or because of a healthcare professional’s negligence, you should be aware that medical malpractice is an area in which you cannot afford to make a mistake or represent yourself. Call the experienced South Florida medical malpractice attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.
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