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Florida Court Dismisses Medical Malpractice Case Based on Insufficient Expert Affidavit

Earlier this year, a state appellate court issued a written opinion in a Florida medical malpractice case requiring the court to determine whether the plaintiff’s three expert affidavits were sufficient to comply with the requirements of Florida Statutes 766.102 outlining the expert affidavit requirement.

Florida’s Expert Affidavit Requirement

Under Florida law, a plaintiff bringing a Florida medical malpractice claim must conduct a pre-suit investigation to “ascertain whether there are reasonable grounds to believe that the defendant medical provider was negligent, and that the negligence resulted in injury to the claimant.” In addition, a plaintiff must obtain an expert affidavit from a qualified expert stating that the expert has reviewed the plaintiff’s case, and that it has merit.

The Facts of the Case

According to the court’s opinion, the defendant orthopedic surgeon performed a hip-replacement surgery on the defendant. During the operation, the defendant fractured the plaintiff’s hip. The plaintiff filed a Florida medical malpractice claim against the orthopedic surgeon. In support of her claim, the plaintiff presented three expert witness affidavits from an emergency room physician, a radiologist, and a nurse.

In a pre-trial motion, the defendant moved to dismiss the plaintiff’s case, arguing that the three affidavits she submitted did not meet Florida’s pre-suit affidavit requirement because none of them were from an orthopedic surgeon. The plaintiff responded that the “same specialty” requirement was only applied at trial, and that there is “a less stringent standard for qualification of experts in the medical malpractice screening process.”

The Court’s Opinion

The court began by noting that the purpose of the medical malpractice pre-suit requirements is to assist in the prompt resolution of medical malpractice claims by avoiding “lengthy litigation of claims and the associated costs of such litigation.” The idea being that a pre-suit investigation will weed out frivolous claims and encourage defendants to settle those cases that present meritorious claims. To effectuate that goal, the court explained, the legislature required that an expert affidavit is completed by an expert who practices in the same specialty as the defendant.

Here, the court explained that the plaintiff’s expert affidavits did not comply with the plain language of the statute because none of the affidavits were completed by an orthopedic surgeon who practiced in the same area as the defendant.  Thus, the court dismissed the plaintiff’s case.

Are You Looking for a Florida Medical Malpractice Attorney?

If you or someone you care about has recently been injured because of the negligence of a healthcare provider, you may be entitled to financial compensation through a Florida medical malpractice case. At the law firm of Friedman Rodman & Frank, we have decades of experience handling personal injury and medical malpractice cases across the State of Florida. To learn more about how we can help you with your situation, call 877-448-8585 to schedule your free consultation today. Calling is free, and we will not bill you for our services unless we can help you recover the compensation you deserve.

More Blog Posts:

Establishing Liability in Florida Swimming Pool Accidents, South Florida Personal Injury Lawyers Blog, published January 25, 2019.

Liability in Florida Sports Injury Cases, South Florida Personal Injury Lawyers Blog, published February 14, 2019.

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