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Florida Second DCA rules that podiatrist could not offer pre-suit expert opinion concerning negligence of orthopedic surgeon

On June 21, 2017, in Clare v. Lynch, No, 2D16-4052, the Florida Second DCA quashed a trial court’s order which had allowed the plaintiff’s medical negligence complaint to proceed forward notwithstanding the defendant’s objection that the plaintiff had improperly relied on a podiatrist’s pre-suit affidavit for a claim against an orthopedic surgeon. The Second DCA concluded that the podiatrist’s pre-suit affidavit did not meet the requirements of F.S. 766.102(5) because the podiatrist did not specialize in the same specialty as the orthopedic surgeon, notwithstanding the fact that they both specialized in surgery involving the foot and ankle. The Court suggested that while the affidavit might have passed muster under the pre-2013 version of the statute, which required only that that the affiant specialize in the same or “similar” specialty and contained a safety valve allowing a trial court discretion in making the decision, no such discretion exists in the post-2012 version of the statute. The Court noted that Florida Supreme Court recently declined to adopt the “same specialty” amendment to Section 766.102(5) “to the extent it is procedural,” but the Second DCA considered itself still bound by the statute until a determination is made that it is unconstitutional, citing Bivins v. Rogers, 207 F. Supp. 3d 1321, 1326 (S.D. Fla. 20160 (noting that a Florida Supreme Court rules decision declining to adopt a statutory amendment to the extent it is procedural does "not vitiate or overturn the statute" and "the statute remains the law in Florida").