The Supreme Court of Florida (“Florida Supreme Court”) held in its 4-to-3 opinion filed on September 6, 2018 that (1) where the facts regarding the presuit expert’s qualifications are unrefuted, the proper standard of review of a trial court’s dismissal of a medical malpractice action based on its determination that the plaintiff’s presuit expert witness was not qualified is de novo, and (2) before a medical malpractice action can be dismissed based on a trial court’s finding that the plaintiff or plaintiff’s counsel failed to comply with the informal presuit discovery process for medical malpractice actions, the trial court must find that such noncompliance prejudiced the defendant (“To hold otherwise would not only deprive plaintiffs of their constitutional right to access the courts but would also frustrate the Legislature’s intent in enacting the medical malpractice statutory scheme.”).
The Florida Supreme Court held: “because the record demonstrates that [the plaintiff’s] presuit expert was qualified, and because the record does not establish that the Defendants suffered any prejudice for the alleged noncompliance with discovery, we conclude that the trial court erred in dismissing [the plaintiff’s] action.”
The Underlying Facts
A 21-year-old woman delivered a stillborn baby at the hospital. After delivery, the woman had a dilation and curettage procedure. Hours after the surgery, the woman was discharged from the hospital and advised to return for a follow-up appointment in three weeks.
Three days later, the woman collapsed at home. She was transported to a nearby hospital where she died. An autopsy revealed that the decedent’s cause of death was “Klebsiella Pneumoniae Septicemia along with contributing causes [of] recent Intrauterine fetal demise and Severe Acute Diarrhea.”
Prior to filing the Florida wrongful death medical malpractice lawsuit, the plaintiff provided the defendants with a notice of intent to initiate medical malpractice litigation and a verified written medical expert opinion, as required by section 766.203(2), Florida Statutes (2011). The defendants subsequently requested detailed information from the plaintiff regarding the qualifications of the plaintiff’s expert.
Thereafter, the plaintiff filed the lawsuit, alleging that the defendants were negligent in, among other things, failing to recognize the severity of the decedent’s complaints and failing to correctly diagnose and treat the decedent’s condition. The defendants moved to dismiss, arguing first, that the plaintiff’s expert was not a qualified expert under section 766.102(5)(a)2, Florida Statutes (2011)—which requires that an expert in a medical malpractice case devote professional time during the three years immediately preceding the date of the occurrence that is the basis for the action—because she “was enrolled in law school and graduate school during the three years prior to the time of the subject incident,” and the defendants further argued that the plaintiff’s expert did not have knowledge of the standard of care applicable to such medical support staff.
The trial court ultimately dismissed the Florida wrongful death medical malpractice case, finding that the plaintiff had not complied with the statutory presuit requirements, or allowed reasonable discovery into the expert’s devoted professional time 3 to 5 years immediately preceding the occurrence. Because the applicable statute of limitations had long since expired, and the plaintiff could not remedy this issue with another expert, the trial court determined that dismissal was a proper remedy pursuant to sections 766.205(2) and 766.206(2).
The plaintiff appealed to the First District Court of Appeal, which, in a two-to-one decision, concluded that the trial court did not abuse its discretion, and affirmed.
Florida Supreme Court Opinion
The Florida Supreme Court stated that the presuit process was created to facilitate the expedient, and preferably amicable, resolution of medical malpractice claims. Regardless, because the presuit process restricts the plaintiff’s ability to bring medical malpractice claims, the Florida Supreme Court stated that the requirements of the presuit process must be interpreted liberally so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts.
The Florida Supreme Court stated that nowhere in section 766.202(6) does it state that the expert must be duly and regularly engaged at the time the opinion is offered, when the role of the medical expert is to provide an opinion regarding the prevailing professional standard of care, or the professional standard of care existing at the time of the occurrence that is the basis for the action.
De Novo Review
The Florida Supreme Court stated: “we conclude that, where the facts regarding a presuit expert’s qualifications are unrefuted, the proper standard of appellate review of a trial court’s dismissal of a medical malpractice action based on its conclusion that the plaintiff’s presuit medical expert is not qualified is de novo. Even if the proper review standard were competent, substantial evidence, we would conclude that nothing in the record supports the trial court’s conclusion that [the plaintiff’s] expert was not qualified.” (“Determining whether a presuit expert witness is qualified under the statute involves reviewing the expert’s stated qualifications and comparing those with what is required under the statute. The trial court is in no better position than the appellate court to conduct this analysis.”)
In the present case, the Florida Supreme Court noted that the plaintiff’s expert stated in her sworn affidavit that she was a board-certified obstetrician, who, over her thirty-year career had been chief of the OB-GYN department at a large medical center, chief of staff at a small women’s specialty hospital, and member of hospital-wide peer review committees. Her affidavit also stated that she was engaged in full-time patient care until March 2008, which was several months before the incidents alleged in the complaint began, she was currently licensed to practice medicine, and she was recertified as a board-certified obstetrician in 2007 and 2009. The defendants presented no evidence to suggest that the expert’s claims were false (the defendants merely challenged the sufficiency of the expert’s stated qualifications and her ability to devote “professional time to” or be “regularly engaged” in the practice of medicine while in law school).
The Florida Supreme Court concluded that the plaintiff’s expert’s affidavit clearly established that she met the statutory requirements, and the defendants presented no evidence to refute her sworn statements. The Florida Supreme Court held: “Because [the expert’s] affidavit clearly complies with the statutory requirements, the trial court erred in finding that [the plaintiff’s expert] was not qualified. §§ 766.202(6); 766.102(5)(a)2., Fla. Stat. (2011).”
The Florida Supreme Court concluded: “At the time the presuit medical expert in this case executed her affidavit corroborating [the plaintiff’s] claims of medical malpractice, she had enjoyed a thirty-year career as an OB-GYN, graduating from medical school in 1978 and becoming board-certified in obstetrics and gynecology in 1984. Her long career included serving as chief of the OB-GYN department at a large medical center and chief of staff at a small women’s hospital. In short, [the plaintiff’s expert] is just the type of expert that the Legislature would consider is qualified. Accordingly, because [the plaintiff’s expert] was clearly qualified under the statutory requirements, under any standard of review, we conclude that the trial court erred in dismissing [the plaintiff’s] action under section 766.206(2), Florida Statutes (2011).”
With regard to the presuit discovery issue, the Florida Supreme Court stated if the defendant presents evidence that the expert’s stated qualifications are false, presuit discovery on the discrete issue should be allowed. On the other hand, if the affidavit suggests a technical deficiency in the affidavit, there would be no reason to allow open-ended discovery. The Florida Supreme Court concluded that section 766.203(4) does not allow a deposition of a presuit expert where, as in this case, the presuit expert’s affidavit clearly establishes that the expert is qualified under the statute and the defendant fails to present any evidence to refute those qualifications (“nothing in the medical malpractice statutory scheme indicates that the Legislature intended the presuit process to include a deposition of a presuit expert regarding her qualifications, where the expert demonstrates in a sworn affidavit that he or she meets the statutory qualifications … [t]his conclusion is consistent with our previous pronouncements that, when reviewing matters involving chapter 766, this Court must construe the provisions ‘in a manner that favors access to courts'”).
The Florida Supreme Court further stated: “While section 766.205(2) permits dismissal for a plaintiff’s failure to comply with discovery, this Court has repeatedly held that it is improper to dismiss an action for a plaintiff’s failure to comply with discovery where the defendant suffers no prejudice … [p]articularly where the two-year statute of limitations for medical malpractice actions has expired and the defendant has suffered no prejudice, courts have consistently recognized that dismissal is a drastic sanction.”
The Florida Supreme Court concluded: “Thus, consistent with our precedent, we hold that the trial court must make a finding of prejudice to the defendant before a medical malpractice action can be dismissed under section 766.205(2) for a plaintiff’s failure to comply with the informal presuit discovery process … because dismissal is the ultimate sanction in the adversarial system, particularly in the medical malpractice realm after the statute of limitations has expired, we remind trial courts that it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result.”
Source Morris v. Muniz, No. SC16-931.
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