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In Edwards v. The Sunrise Ophthalmology Assn., LLC, 38 Fla. L. Weekly D1840a (Fla. 4th DCA August 28, 2013), the 4th DCA held that a pre-suit affidavit of an infectious disease doctor was insufficient to corroborate a medical negligence claim against an ophthalmologist that was based upon an allegation of improper sterilization during an eyelid surgery resulting in a rare eyelid infection.

The case involved the application and interpretation of the 2009 version of § 766.102(5)(a), Fla. Stat., which provided the statutory definition of a medical expert for purposes of pre-suit corroboration of Edwards' medical malpractice claim. The 2009 version of the statute, which was recently amended, provided that an expert for or against a specialist must specialize in either the same specialty as the prospective defendant or a similar specialty that includes the evaluation, diagnosis or treatment of the medical condition at issue in the case.

The case turned on a determination as to whether the infectious disease doctor specialized in a similar specialty as the ophthalmologist. This required defining the medical condition that was the subject of the claim.

The majority concluded that the medical condition at issue was eyelid surgery, which the infectious disease doctor did not perform. The absence of any experience by the infectious disease doctor in performing eyelid surgery disqualified the doctor from serving as a pre-suit expert, resulting in a ruling that Edwards had failed to comply with the medical malpractice pre-suit screening requirements.

However, the dissenting opinion defined the condition at issue as an infection and felt that an infectious disease doctor was arguably more qualified than an ophthalmologist to opine as to the requirement that any surgery, including ophthalmic surgery, must be aseptic and free of bacteria. The dissent would have reversed the order of dismissal in favor of allowing Edwards to enjoy her Florida constitutional right of access to courts.

As stated above, this case was decided under the 2009 version of § 766.102(5)(a), which was amended effective July 1, 2013. The amendment deletes the portion of the statute which allowed an expert from a "similar specialty" to testify or sign a pre-suit affidavit against a specialist.


This summary was prepared by Cliff Acord of our firm.


Cliff Acord

 

 

38 Fla. L. Weekly D1840a

 

Torts -- Medical malpractice -- Action against ophthalmologist alleging plaintiff contracted rare bacterial infection as result of lower eyelid surgery -- Presuit requirements -- Notice of intent to initiate litigation -- Affidavit of corroborating medical expert -- No error in dismissing action against ophthalmologist for failure to comply with presuit requirements where plaintiff submitted affidavit of infectious disease doctor, not an ophthalmologist

MARIANNE EDWARDS, Appellant, v. THE SUNRISE OPHTHALMOLOGY ASC, LLC, d/b/a FOUNDATION FOR ADVANCED EYE CARE; GIL A. EPSTEIN, M.D.; and FORT LAUDERDALE EYE INSTITUTE, INC., Appellees. 4th District. Case No. 4D12-143. August 28, 2013. Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Richard D. Eade, Judge; L.T. Case No. 10-40825 CACE 05. Counsel: Rodrigo L. Saavedra, Jr., of Rodrigo L. Saavedra, Jr., P.A., Fort Lauderdale, for appellant. Burt E. Redlus of Law Offices of Burt E. Redlus, P.A., Miami, for appellees Gil A. Epstein, M.D., and Fort Lauderdale Eye Institute, Inc.

(May, J.) Three words beginning with "s": similar, specialize, and specialty, and their use in our medical negligence statutes, are called into question in this appeal. The plaintiff appeals an order dismissing her medical negligence action against an ophthalmologist and his employer1 because she failed to obtain a written opinion from an expert -- as defined by section 766.102, Florida Statutes (2009) -- to support the negligence claim. She argues the court erred in dismissing the ophthalmologist from the action. We disagree and affirm.

The plaintiff filed a complaint against her ophthalmologist and the surgical center where the surgery was performed. She alleged that she contracted a rare bacterial infection as a result of lower eyelid surgery. According to the complaint, the negligence resulted in the plaintiff having to undergo additional surgery and sustaining disfigurement of her eye.

Prior to filing the complaint, the plaintiff served the ophthalmologist with a Notice of Intent to Initiate Litigation for Medical Malpractice and a verified affidavit from an infectious disease doctor. That doctor opined that the plaintiff contracted the infection because the ophthalmologist failed to use proper sterilization techniques during the eye surgery. The ophthalmologist responded to the plaintiff's lawyer, acknowledging receipt of the notice of intent and affidavit, and advising that he did not believe the notice was sufficient because the infectious disease doctor was not an expert in the same specialty -- ophthalmology. The ophthalmologist subsequently filed an Answer, asserting noncompliance with sections 766.102, 766.106, 766.202, and 766.203, Florida Statutes (2009), as an affirmative defense.

The ophthalmologist then moved for a determination of whether the infectious disease doctor qualified as an expert under section 766.102. The ophthalmologist filed a memorandum and attached the infectious disease doctor's affidavit, CV, deposition transcript, correspondence between the parties' attorneys, and the expert opinion of a board certified ophthalmologist. The plaintiff filed a response.

At an unrecorded hearing, the trial court ruled that the infectious disease doctor's affidavit was insufficient to comply with section 766.102's requirement of specialization, and dismissed the ophthalmologist.2 From this order, the plaintiff now appeals.

We have de novo review. Oliveros v. Adventist Health Sys./Sunbelt, Inc., 45 So. 3d 873, 876-77 (Fla. 2d DCA 2010).

The plaintiff argues the ophthalmologist waived compliance with the chapter 766 pre-suit requirements by failing to specifically plead it. Id. We disagree. The Answer asserted the plaintiff "failed to comply with the spirit or law embodied by Florida Statute 766.106 . . . . Specifically, these defendants claim that plaintiff failed to serve a corroborating written medical expert opinion in compliance with the requirements of F.S. 766.203(2), F.S. 766.202(6) and F.S. 766.102." This assertion was sufficiently specific to place the plaintiff on notice. In addition, the acknowledgment letter sent a year prior to filing the Answer specifically challenged the sufficiency of the infectious disease doctor's affidavit because he was not an ophthalmologist. There was no waiver.

The Florida Legislature has designed a statutory framework for filing medical negligence actions. A plaintiff must conduct an investigation to determine if "there are reasonable grounds to believe" that a defendant was negligent and that the "negligence resulted in injury" to the plaintiff. § 766.203(2), Fla. Stat. (2009). The plaintiff must then "notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence." § 766.106(2)(a), Fla. Stat. (2009). The plaintiff is required to submit "a verified written medical expert opinion from a medical expert as defined in s. 766.202(6) . . . ." § 766.203(2), Fla. Stat. (2009).

Section 766.202(6) defines a medical expert as "a person . . . engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102." § 766.202(6), Fla. Stat. (2009). Under section 766.102, if the defendant is a specialist, the medical expert must "[s]pecialize in the same specialty as the health care provider . . . or specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients." § 766.102(5)(a), Fla. Stat. (2009) (emphasis added).

The myriad of factual scenarios giving rise to medical negligence claims has caused differing outcomes in cases attempting to apply the term "similar specialty." See, e.g., Weiss v. Pratt, 53 So. 3d 395 (Fla. 4th DCA 2011) (emergency room physician qualified to testify against orthopedic surgeon); Barrio v. Wilson, 779 So. 2d 413 (Fla. 2d DCA 2000) (pulmonologist not qualified to testify against emergency room physician). As we have previously noted: "[w]hat is clear is that nothing is clear about 'similar specialty.' " Weiss, 53 So. 3d at 400.

In Weiss, we found no error in the trial court allowing an emergency room physician to testify against an orthopedic surgeon. However, the area of testimony was limited to how to move an injured football player from the field. We specifically indicated that our holding was limited to the facts of the case, and that, had the area of testimony concerned more specialized medical knowledge, the outcome may have been different. Id. at 401. We find Weiss distinguishable, and this case gives us the perfect opportunity to elucidate the distinction.

Here, the plaintiff sued her ophthalmologist for complications of eye surgery. The complaint specifically alleged the ophthalmologist:

(1) "held himself out to the public to be a specialist in the field of ophthalmology, specializing in ophthalmic plastic and reconstructive surgery"; and
(2) "breached the prevailing standard of care for proper sterile technique and/or proper sterilization technique in order to prevent the contamination of [the plaintiff's] surgical site. . . ."

The plaintiff submitted an expert affidavit from an infectious disease doctor. These doctors do not "[s]pecialize in the same specialty." § 766.102(5)(a)1. Fla. Stat. (2009). Simply put, the infectious disease doctor is not an eye surgeon nor is the ophthalmologist an infectious disease doctor.

The dissent suggests however that the infectious disease doctor satisfied the statute's requirement that the expert's specialty include "the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim."3 Id. (emphasis added). Here, the medical condition was ophthalmic in nature, a bilateral blephroplasty. The infectious disease doctor does not "specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of" a bilateral blephroplasty or any type of surgery. And, the infectious disease doctor's affidavit does not suggest otherwise.

If we were to allow an infectious disease doctor to be considered a similar specialty to an ophthalmologist or one "that includes the evaluation, diagnosis, or treatment of the medical condition" -- a bilateral blephroplasty -- we would impose the infectious disease doctor's expertise on a dissimilar eye-surgery specialist. This vitiates the very nature of a physician's specialization. Neither could we impose the eye surgeon's specialization on the infectious disease doctor. In fact, the ophthalmologist in this case referred the plaintiff to an infectious disease specialist when he discovered the infection for the very reason that another type of specialist was needed.

As we identified in Weiss, there are some cases that involve allegations of more common medical knowledge and skill that may be possessed by doctors of dissimilar specialties. More likely than not, however, the allegations against a specialist require an expert in the identical specialty with the same or similar expertise to satisfy section 766.102's specialization requirement. We therefore affirm the trial court's dismissal of the ophthalmologist.

Affirmed. (Gerber, J. concurs. Levine, J., dissents with opinion.)

__________________

1. Reference to the ophthalmologist includes his employer throughout the opinion.

2. Sunrise Ophthalmology ASC, LLC remains in the case.

3. The dissent acknowledges the Florida Legislature has now clarified the statute to require the same specialty to avoid the confusion the statute's previous language has caused.
__________________

(Levine, J., dissenting.) I respectfully dissent from the majority opinion as I would reverse the trial court's dismissal of the plaintiff's medical negligence suit. The majority agrees with the trial court's dismissal and finds that the plaintiff failed to obtain an expert opinion that satisfied the "specialization requirement" of section 766.102, Florida Statutes (2009). I would reverse the trial court and find that the plaintiff did satisfy the requirements of the applicable statute that governed expert witness pre-suit affidavits in medical malpractice actions in effect at the time of suit.
Prior to initiating a medical malpractice action, the plaintiff must conduct a presuit "investigation to ascertain that there are reasonable grounds to believe that: (a) [a]ny named defendant in the litigation was negligent in the care or treatment of the claimant; and (b) [s]uch negligence resulted in injury to the claimant." § 766.203(2), Fla. Stat. (2009). Then, the plaintiff must "notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence." § 766.106(2)(a), Fla. Stat. (2009).

"[A]t the time the notice of intent to initiate litigation is mailed," the plaintiff must submit "a verified written medical expert opinion from a medical expert as defined in s. 766.202(6) . . . which statement shall corroborate reasonable grounds to support the claim of medical negligence." § 766.203(2)(b), Fla. Stat. (2009). Section 766.202(6) defines a medical expert as "a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102." Pursuant to section 766.102, if the defendant doctor is a specialist, then the medical expert must "[s]pecialize in the same specialty as the health care provider . . . or specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients." § 766.102(5)(a)1., Fla. Stat. (2009) (emphasis added).

In this case, the trial court merely stated that "[i]t is determined that the affidavit is insufficient" without further elaboration. The majority elaborates that the affidavit is deficient because "[s]imply put, the infectious disease doctor is not an eye surgeon nor is the ophthalmologist an infectious disease doctor."

The Florida Supreme Court held in Patry v. Capps, 633 So. 2d 9, 13 (Fla. 1994), that "when possible the presuit notice and screening statute should be construed in a manner that favors access to courts." See also Kukral v. Mekras, 679 So. 2d 278, 284 (Fla. 1996) ("[T]he medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict a Florida citizen's constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses."). Further, we should be guided by this court's decision in Weiss v. Pratt, 53 So. 3d 395 (Fla. 4th DCA 2011).

In Weiss, this court found that

while the doctor's specialty was orthopedic surgery, the plaintiff based its claim in part on what the doctor failed to do on the football field, failing to place the plaintiff on a backboard. The emergency room expert was not an orthopedic surgeon, but he had the expertise of what to do in such a circumstance. Had the allegations concerned some aspect of orthopedic surgery requiring a specific level of specialization, the emergency room physician may not have been qualified to render an expert opinion.

Id. at 401.

Our court stated further,

It would certainly be easier to require the precise area of specialization, but then that requirement might devolve into sub-specialty, sub-sub-specialty until there was no one with the same sub-sub-sub-specialty. The statute as written allows for sufficient expertise to ensure fairness. It does that by requiring either the same specialty or an expert with sufficient experience to testify.

Id. (emphasis added).

In the present case, the defendant physician's specialty was ophthalmology and the plaintiff's expert was a physician engaged in the practice of medicine related to epidemiology and infectious disease. The plaintiff's expert opined that there were reasonable grounds that the defendants were medically negligent by "failing to use, in the operating room, proper sterile technique and/or proper sterilization technique in order to prevent the contamination of [the plaintiff's] surgical site with Nocardia" (the bacterial infection allegedly contracted by the plaintiff). The expert's curriculum vitae reflects that he has considerable experience in the areas of medicine upon which he opined. He went to reputable universities, earning his medical degree in 1988 and a master's degree in public health with a focus on epidemiology. He is board certified in infectious diseases, teaches medical school courses on epidemiology and population health, and is a director of infection control at several hospitals. He has also acted as an ad hoc reviewer for various journals related to infectious diseases.

Clearly, the plaintiff's expert was, as recognized in Weiss, "an expert with sufficient experience to testify" about how the plaintiff contracted the infectious disease due to the alleged failure of the defendants to use proper sterilization techniques. Id. The plaintiff's expert satisfied the statutory requirement that the expert's specialty include "the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim." § 766.102(5)(a)1., Fla. Stat. (2009). Who better than an expert in epidemiology and infectious disease could testify about the medical condition of Nocardia and how it could be contracted?

The majority states that "the medical condition is ophthalmic in nature" and therefore the doctor providing the affidavit needed to specialize in a similar specialty. In fact, one could argue that the medical condition was immunologic in nature, as the complaint involved an allegation that the surgery was not sterile. Part and parcel of any treatment "ophthalmic in nature," including ophthalmic surgery, is that the surgery be aseptic and free of bacteria. See PDR Medical Dictionary 1712 (1st ed. 1995) (defining "aseptic surgery" as "the performance of an operation with sterilized hands, instruments, etc., and utilizing precautions against the introduction of infectious microorganisms from without.").

We should also note that effective July 1, 2013, the legislature deleted the statutory language allowing that the expert's specialty include "the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim." Section 766.102(5)(a)1. now defines the specialization requirement to include only those who "[s]pecialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered." The bill analysis recognizes that "[t]he bill limits the class of individuals who may offer expert testimony against a defendant specialist in a medical negligence action. These experts must specialize in the same, rather than similar, medical specialty as the defendant." Fla. Comm. on Judiciary, SB 1792 (2013), Staff Analysis 1 (Mar. 29, 2013).

"The court has the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation." Gay v. Can. Dry Bottling Co. of Fla., 59 So. 2d 788, 790 (Fla. 1952) (citation omitted). "When the legislature amends a statute by omitting words, we presume it intends the statute to have a different meaning than that accorded it before the amendment." Capella v. City of Gainesville, 377 So. 2d 658, 660 (Fla. 1979); see also Norman J. Singer & J.D. Shambie Singer, 1A Sutherland Statutory Construction § 22:29 (7th ed. 2012) ("When a statute is amended and words are omitted, courts presume the legislature intended the statute to have a meaning different from the one it had before amendment."). "[A]n amendment indicates that [the legislature] intended to change the original act by creating a new right or withdrawing an existing one. Therefore, any material change in the language of the original act is presumed to indicate a change in legal rights." 1A Sutherland § 22:30 (footnote omitted). Thus, we can presume that the recent amendment by the legislature signifies a change in the law as it relates to who may file a medical expert affidavit. In this case, the pre-amendment statutory language supports the conclusion that the affidavit of the plaintiff's medical expert satisfied the requirements of the statute in effect at the time of suit.

In summary, I would reverse the dismissal of the trial court, and I would find the plaintiff's expert affidavit compliant with the law applicable at the time of suit.







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