Earlier this month, the state’s supreme court issued a very important opinion in a Florida medical malpractice case discussing under what circumstances a plaintiff’s case must be dismissed when she fails to comply with the expert opinion requirement contained in Florida Statutes section 766.102. Importantly, the court held that a plaintiff’s case should not be dismissed for lack of a qualifying expert opinion unless the defense can show that the plaintiff’s failure to comply caused prejudice to the defense.
The Facts of the Case
The plaintiff was the personal representative of a woman who died after having a complicated pregnancy that resulted in the stillbirth of her child. Pursuant to section 766.203(2), the plaintiff designated an expert witness, who was a board-certified OB/GYN.
The plaintiff’s selected expert had over 30 years of experience in the field, and had delivered over 14,000 babies. She had also served as chief of the OB-GYN department at a large medical center, and Chief of Staff at a small women’s specialty hospital. In 2005, the expert began law school, and obtained her Juris Doctorate in 2007. However, when asked, the expert stated that she “was engaged in full-time patient care until March 2008.”