Court Permits Florida Medical Malpractice Plaintiff’s Case to Proceed Despite Non-Compliant Expert Affidavit

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.”

The defense objected to the plaintiff’s expert’s opinion, claiming that the expert was not qualified because, under section 766.102(5)(a)(2), an expert must have practiced in the field at issue over the past three years. The defense claimed that, because the expert was in law school, she could not have been providing the medical care she claimed to have been engaged in.

The trial court agreed with the defendant, and allowed for limited discovery into the expert’s qualifications. Ultimately, the court precluded the plaintiff’s expert’s opinion after determining that the plaintiff’s expert was less than cooperative with the discovery order. Without an expert opinion, the plaintiff’s case did not comply with the pre-suit requirements and her case was dismissed. The plaintiff appealed.

On appeal, the court held that the lower court should not have granted the defendant permission to conduct discovery into the expert’s qualifications and ultimately should not have precluded her testimony. The court explained that the expert was clearly qualified to testify, and the defendant’s assumption that she could not practice medicine while in law school only attacked the veracity of her qualifications, but was not evidence that they were untrue. Thus, the lower court improperly allowed for the additional discovery into her qualifications.

The court also held that a plaintiff’s case should not be dismissed for failure to comply with the pre-suit discovery procedures absent a showing of prejudice. The court explained that plaintiffs have a constitutional right to access the courts, and interpreting procedural requirements in an overly burdensome manner improperly limits this right.

Are You in Need of an Attorney?

If you or a loved one has recently been injured in an incident of Florida medical malpractice, you may be entitled to compensation. At the law firm of Friedman Rodman & Frank, we represent accident victims in all types of Florida personal injury cases, and have extensive experience working with expert witnesses to prove our clients’ cases. To learn more, call 877-448-8585 to schedule a free consultation.

More Blog Posts:

Court Discusses Caterer’s Liability in Recent Food-Poisoning Case, South Florida Personal Injury Lawyers Blog, published September 19, 2018.

Florida Court Dismisses Slip-and-Fall Case, Finding the Hazard Causing the Plaintiff’s Fall Was “Open and Obvious”, South Florida Personal Injury Lawyers Blog, published September 13, 2018.


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