Plaintiff’s Medical Malpractice Lawsuit Dismissed for Failing to Meet Pre-Suit Requirements

Earlier this month, a state appellate court issued a written opinion in a Florida medical malpractice lawsuit discussing the potential consequences that may arise when a plaintiff fails to properly follow all of the procedural requirements. Ultimately, the court affirmed the dismissal of the plaintiff’s lawsuit against the defendant because the pre-suit notice provided by the plaintiff contained the affidavit of an infectious disease doctor, rather than that of an ophthalmologist, which was the specialty of the defendant doctors.

SurgeryThe Facts of the Case

The plaintiff underwent a surgery to repair droopy skin around her eye. The surgery was performed by one of the defendant doctors. The surgery went as planned, and another defendant doctor conducted the post-surgical examinations. Both defendant doctors were ophthalmologists.

After the surgery, the plaintiff developed an infection in her eye. The infection left her with serious visual impairments, dizziness, and a heightened risk of future infections. She filed a personal injury lawsuit, first naming the doctor who performed the surgery as the only defendant. Attached to this claim, the plaintiff included an affidavit from an ophthalmologist stating that the plaintiff’s case had merit.

Later, the plaintiff filed notice that she intended to sue the other doctor who had performed the post-operative examinations. However, attached to this complaint was an affidavit completed by an infectious disease doctor.

The doctor who conducted the post-operative exams moved to dismiss the plaintiff’s case, based on the fact that the plaintiff did not comply with Florida’s pre-suit requirements for medical malpractice cases. Specifically, the doctor claimed that the plaintiff failed to obtain an affidavit from a specialist who practices in the same field as the defendant.

The plaintiff claimed that the affidavit attached to the claim involving the other doctor – which was completed by an ophthalmologist – should apply to both doctors.

The Court’s Decision

The court concluded that the plaintiff’s affidavit regarding the second doctor was not sufficient because it did not come from a doctor who practiced in the same specialty as the defendant. The court explained that the statutory language is clear and that as a result of the affidavit being from a doctor of a different specialty, the plaintiff failed to comply with the pre-suit requirements.

The court also held that the relationship between the two doctors was not such that the affidavit attached to the surgeon’s claim applied to the claim against the doctor who performed the post-surgical exams. Thus, the plaintiff’s lawsuit failed to comply with the pre-suit requirements for Florida medical malpractice cases, and her case was dismissed.

Have You Been a Victim of Medical Malpractice?

If you or a loved one has recently been a victim of medical malpractice, you may be entitled to monetary compensation through a Florida medical malpractice lawsuit. At the law firm of Friedman, Rodman & Frank, we represent victims in all types of South Florida personal injury matters, including cases involving allegations of medical malpractice. To learn more, and to schedule a free consultation with an attorney to discuss your case, call 877-448-8585 today.

More Blog Posts:

Court Rejects Underinsured Motorist Claim Following Horse-Drawn Carriage Accident, South Florida Personal Injury Lawyers Blog, published May 19, 2017.

Court Dismisses Slip-and-Fall Case Based on Plaintiff’s Failure to Provide Specific Location of Injury, South Florida Personal Injury Lawyers Blog, published May 4, 2018.

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