Clare v. Lynch

• Decision Date: 21 June 2017
• Docket Number: Case No. 2D16–4052
• Citation: 220 So.3d 1258
• Parties: Michael CLARE, M.D., and Florida Orthopaedic Institute, Petitioners, v. Maria Johnson LYNCH, Respondent.
• Court: Florida District Court of Appeals

220 So.3d 1258

Michael CLARE, M.D., and Florida Orthopaedic Institute, Petitioners,

v.Maria Johnson LYNCH, Respondent.

Case No. 2D16–4052

District Court of Appeal of Florida, Second District.

Opinion filed June 21, 2017.

Nancy S. Paikoff of Macfarlane Ferguson and McMullen, Clearwater; and Stephen H. Sears of Macfarlane, Ferguson & McMullen, Tampa (withdrew after briefing); Mark E. McLaughlin of Beytin, McLaughlin, McLaughlin, O'Hara, Bocchino & Bolin, Tampa (substituted as counsel of record), for Petitioners.

Maria Johnson Lynch, pro se.

VILLANTI, Chief Judge.

PetitionersMichael Clare, M.D., and Florida Orthopaedic Institute (collectively "FOI") seek a writ of certiorari directed to the trial court's order that granted a motion for rehearing filed by respondentMaria Johnson Lynch and reinstated her medical malpractice complaint against FOI.Because the expert affidavit submitted by Lynch did not satisfy the requirements of section 766.102(5)(a), Florida Statutes(2015), we must grant the petition and quash the trial court's order reinstating the complaint.

Lynch became a patient of FOI after she broke her toe.She underwent a variety of treatments, including surgery, which failed to fully resolve the problems.Lynch subsequently obtained a second opinion, during which she was told that the surgery performed by Dr. Clare was unnecessary and not indicated for injuries such as hers.She then initiated presuit proceedings with FOI.In support of her claim, Lynch submitted, as the requisite "[c]orroboration of reasonable grounds to initiate medical negligence litigation" under section 766.203(2), the written affidavit of Dr. Benjamin Overley, D.P.M., who is a board-certified podiatrist.FOI challenged this affidavit, asserting that it did not qualify as a proper corroborating affidavit because Dr. Clare is a board-certified orthopedic surgeon—not a podiatrist.Lynch did not respond to this objection during the presuit period.

At the end of the presuit period, FOI denied liability, and Lynch filed suit.FOI then moved to dismiss, arguing that Lynch did not properly comply with the presuit investigation requirements because she did not submit an expert affidavit that complied with the statutory presuit requirements.The trial court initially agreed and dismissed the complaint; however, on rehearing, the trial court essentially changed its mind, granted rehearing, and reinstated the complaint.FOI then filed this petition for writ of certiorari.

As an initial matter, we have certiorari jurisdiction to review this type of order.As the First District has explained:

Certiorari review of the denial of a motion to dismiss is ordinarily unavailable.Baptist Med. Ctr. of Beaches, Inc. v. Rhodin , 40 So.3d 112, 114–15(Fla. 1st DCA2010)(citingMartin–Johnson, Inc. v. Savage , 509 So.2d 1097, 1099(Fla.1987) ).But an exception applies to cases, like this one, where a defendant asserts that an order erroneously excuses a plaintiff from complying with chapter 766's presuit requirements.Id.Chapter 766 requires potential plaintiffs to investigate the merits of a claim and provide notice of intent to litigate before filing suit.Id. at 115.Where disputes arise regarding compliance with chapter 766's requirements, "[c]ertiorari review is proper to review the denial of a motion to dismiss."Goldfarb v. Urciuoli , 858 So.2d 397, 398(Fla. 1st DCA2003);see alsoRhodin , 40 So.3d at 115;S. Baptist Hosp. of Fla., Inc. v. Ashe , 948 So.2d 889, 890(Fla. 1st DCA2007).

Shands Teaching Hosp. & Clinics, Inc. v. Estate of Lawson ex rel. Lawson , 175 So.3d 327, 329(Fla. 1st DCA2015)(en banc);see alsoRell v. McCulla , 101 So.3d 878, 880–81(Fla. 2d DCA2012).Here, FOI asserts that the trial court's ruling departs from the essential requirements of the law because it operates to effectively excuse Lynch from the presuit requirements of chapter 766.Therefore, we may properly review the trial court's ruling by certiorari.

Turning to the merits, we note that chapter 766 outlines an extensive presuit procedure applicable to all actions for medical malpractice.Section 766.203 requires the claimant to conduct a presuit investigation to determine whether there are reasonable grounds to initiate a medical negligence action.As part of that presuit investigation, section 766.203(2) requires that the claimant provide "[c]orroboration of reasonable grounds to initiate medical negligence litigation," including "submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6)."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 .

(Emphasis added.)In turn, section 766.102 sets forth the requirements for an expert witness as follows:

(5) A person may not give expert testimony concerning the prevailing professional standard of care unless the person is a health care provider who holds an active and valid license and conducts a complete review of the pertinent medical records and meets the following criteria:

(a)If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must :

1.Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered ; and

2.Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:

a. The active clinical practice of, or consulting with respect to, the same specialty;

b. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same specialty; or

c. A clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same specialty.

(Emphasis added.)Hence, under the plain language of the applicable statutes, if the intended medical defendant is a specialist, the corroborating affidavit must come from a provider who specializes in the same specialty.

In this case, it is undisputed that Dr. Clare is a board-certified orthopedic surgeon.It is also undisputed that Dr. Overley is a board-certified podiatrist.While both doctors' practices focus primarily on foot and ankle surgery, these two doctors have different training and practice in different specialties.Therefore, the affidavit from Dr. Overley could not meet the requirements of the plain language of section 766.102(5), and the noncomplying affidavit was insufficient on its face to constitute the required corroboration of reasonable grounds to initiate medical negligence litigation.Without such corroboration, Lynch's medical malpractice action should have been dismissed.SeeRell , 101 So.3d at 880–81;Shands Teaching Hosp. & Clinics, Inc. , 175 So.3d at 329.By granting rehearing and reinstating Lynch's action, the trial court departed from the essential requirements of the law.

In her petition, as she did in the trial court, Lynch argues that Dr. Clare and Dr. Overley do, in fact, practice in the same specialty because they both perform surgery on feet and ankles.She argues that their different training and different titles should not matter.However, this argument is based on nothing more than Lynch's opinion, which cannot supplant the legislative intent evidenced by the amendments made by the legislature to section 766.102 in 2013.

Prior to 2013, section 766.102(5) provided that if the intended defendant was a specialist, the corroborating medical expert opinion had to come from a health care provider who...