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Florida First DCA rules that infectious disease expert did not practice in "similar" specialty to defendant ophthalmologist treating patient for eye infection

On May 18, 2018, in Rodriguez v. Nicolitz, No. 1D16-4604, the Florida First DCA affirmed a trial court’s dismissal of a medical negligence plaintiff’s amended complaint on the basis that Florida’s statutory pre-suit requirements had not been met with respect to the defendant added in the amended complaint. Florida law requires that a potential plaintiff in a medical negligence case submit a Notice of Intent to Initiate Litigation (“NIIL”) to a prospective defendant prior to filing any lawsuit. The service of the NIIL commences a 90-day pre-suit discovery period which must be completed before a complaint may be filed.

Along with the NIIL, a prospective plaintiff is required to submit a verified written medical expert opinion which supports the claim of medical negligence. In a case involving a potential defendant who is a medical specialist, the current version of the statute requires that the expert must specialize in the same specialty as the potential defendant. See Fla. Stat. § 766.102(5)(a)1. However, the version of the statute in effect when this cause of action accrued allowed for expert testimony if the health care provider specialized in either the same specialty or a “similar” specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim.

The trial court dismissed the plaintiff’s amended complaint because the medical specialist who provided the expert opinion in the pre-suit against the defendant was an infectious disease specialist, whereas the defendant was an ophthalmologist. The First DCA rejected the argument that the infectious disease specialty was a similar specialty, relying heavily on a previous Fourth DCA decision, Edwards v. Sunrise Ophthalmology Assoc., 134 So. 3d 1056 (Fla. 4th DCA 2013), which had likewise concluded that an ophthalmologist and an infectious disease specialist did not engage in similar specialties.

The First DCA’s decision is questionable in one basic respect. The Court focused on the fact that the infectious disease expert had no expertise in the standard of care applicable to physicians performing blepharoplasty (an eyelid procedure), but essentially ignored the fact that the defendant was not being sued for his performance of the procedure (the defendant was not involved in the procedure), but for his allegedly negligent post-operative treatment of the plaintiff for the infection she allegedly acquired during the procedure. Consequently, the specialist arguably should have qualified under either Fla. Stat. § 766.102(5)(a)1 or under Fla. Stat. § 766.102(8), which allows a specialist to testify against a health care provider in another specialty if the treatment under review falls within the former’s specialty rather than the latter’s specialty.

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