Davis v. Karr

• Decision Date: 25 January 2019
• Docket Number: Case No. 5D18-149
• Citation: 264 So.3d 279
• Parties: Michelle DAVIS as Personal Representative of the Estate of Sandra Dale Essex, Appellant, v. Michael A. KARR, M.D., Karr and Kornberg Orthopaedic Associates, M.D., P.A., D/B/A Orthopaedic Associates of Osceola, William Stanton, M.D., and Osceola Regional Hospital, Inc., et al., Appellees.
• Court: Florida District Court of Appeals

264 So.3d 279

Michelle DAVIS as Personal Representative of the Estate of Sandra Dale Essex, Appellant,

v.Michael A. KARR, M.D., Karr and Kornberg Orthopaedic Associates, M.D., P.A., D/B/A Orthopaedic Associates of Osceola, William Stanton, M.D., and Osceola Regional Hospital, Inc., et al., Appellees.

Case No. 5D18-149

District Court of Appeal of Florida, Fifth District.

Opinion filed January 25, 2019

Rehearing Denied February 26, 2019

Dennis Wells, of Webb & Wells, P.A., Longwood, for Appellant.

Andrea Lozano Diederich and Bradley P. Blystone, of Marshall, Dennehey, Warner, Coleman & Goggin, P.C., Orlando, for AppelleesMichael A. Karr, M.D., and Karr and Kornberg Orthopaedic Associates, M.D., P.A. d/b/a Orthopaedic Associates of Osceola.

No Appearance for Other Appellees.

LAMBERT, J.

The primary issue that we address in this case is whether under Florida's Medical Malpractice Act a presuit affidavit submitted by a plaintiff from a health care provider who does not specialize in the same field as the defendant nevertheless meets the statutory presuit investigatory requirements for filing a medical negligence suit.For the following reasons, we hold that it does not, and we therefore affirm the final judgment.

The facts of this case pertinent to this appeal are fairly undisputed.Sandra Dale Essex¹ was a patient of the appellees, Michael A. Karr, M.D., an orthopaedic surgeon, and Karr and Kornberg Orthopaedic Associates, M.D., P.A., d/b/a Orthopaedic Associates of Osceola (hereinafter jointly "Dr. Karr").Dr. Karr performed hip replacement surgery on Essex, and it was during this procedure that Dr. Karr allegedly fractured Essex's right lower femur.Prior to filing her medical negligence complaint, Essex submitted presuit affidavits from an emergency room physician, a radiologist, and a nurse, all averring that the actions of Dr. Karr during Essex's hip surgery negligently caused the fracture of her femur.SeeWeaver v. Myers , 229 So.3d 1118, 1121(Fla.2017)("[B]efore filing a medical negligence action in Florida, a claimant must satisfy statutory requirements, which include conducting a presuit investigation process to ascertain whether there are reasonable grounds to believe that the defendant medical provider was negligent, and that the negligence resulted in injury to the claimant."(citing§ 766.203(2)(a)-(b), Fla. Stat.(2016) ) ).

Dr. Karr moved to dismiss the complaint, asserting that the three affidavits were insufficient to meet the statutory presuit requirements of section 766.102(5)(a)1., Florida Statutes(2013), because none of the affidavits was from an expert witness specializing in his field of orthopaedic surgery.Essex responded that this "same specialty" requirement only pertained to expert testimony presented at trial and that under this court's decisions in State Farm Mutual Automobile Insurance Co. v. Long , 189 So.3d 335, 339(Fla. 5th DCA2016), andApostolico v. Orlando Regional Health Care Systems, Inc. , 871 So.2d 283, 287 n.4(Fla. 5th DCA2004), her presuit affidavits, although not from orthopaedic surgeons, were nevertheless sufficient because there is "a less stringent standard for qualification of experts in the medical malpractice presuit screening process than might be required of an expert to offer testimony at trial."Apostolico , 871 So.2d at 287 n.4(citingFaber v. Wrobel , 673 So.2d 871, 872-73(Fla. 2d DCA1995) ).Essex further argued that the three presuit affidavits submitted gave her counsel sufficient grounds for a good faith belief that Dr. Karr had negligently provided orthopaedic surgical care, thus complying with counsel's statutory presuit duty to reasonably investigate the claim.See§ 766.104(1), Fla. Stat.(2013).

The trial court disagreed, specifically finding that the affidavits from the emergency room physician, radiologist, and the nurse failed to comply with the statutory presuit requirements to support a claim against an orthopaedic surgeon accused of negligence in his capacity as an orthopaedic surgeon.The court entered an order of dismissal with prejudice and thereafter entered a final judgment in favor of Dr. Karr, from which Appellant has timely appealed.Because the trial court's ruling is based on a question of law, our review is de novo.Pierrot v. Osceola Mental Health, Inc. , 106 So.3d 491, 492(Fla. 5th DCA2013)(citingExecu-Tech Bus. Sys., Inc. v. New Oji Paper Co. , 752 So.2d 582, 584(Fla.2000) ).

One of the legislative purposes of Florida's Medical Malpractice Act, codified inChapter 766, Florida Statutes, is to provide a "mechanism for the prompt resolution of medical malpractice claims through mandatory presuit investigation,"Walker v. Va. Ins. Reciprocal , 842 So.2d 804, 809(Fla.2003)(quotingSt. Mary's Hosp., Inc. v. Phillipe , 769 So.2d 961, 969-70(Fla.2000) ), thus allowing the parties"to avoid lengthy litigation of claims and the associated costs of such litigation,"id.(citingKukral v. Mekras , 679 So.2d 278, 280(Fla.1996) ).Section 766.203, Florida Statutes, specifically governs the presuit investigation requirements of medical negligence claims by prospective parties.Prior to filing a notice of intent to initiate a medical negligence suit, a claimant must conduct an investigation to ascertain that reasonable grounds exist that the named defendant in the litigation was negligent in the care and treatment of the claimant and that such negligence resulted in injury.Further, the existence of reasonable grounds to support a claim of medical negligence must be corroborated by the claimant's submission of a verified written medical expert opinion from a medical expert as that term is defined in section 766.202(6).This statute 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.

Applying these two statutes to the instant case, Essex was required to submit a presuit verified written medical opinion from an individual who would qualify as an expert witness under section 766.102, corroborating that reasonable grounds existed for her to bring a medical negligence suit against Dr. Karr.

In 2013, the Legislature specifically amended section 766.102(5), regarding the requirements for qualification as an expert witness.Pertinent to this case, the statute now reads:

(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 ....

Here, because Dr. Karr is an orthopaedic surgeon, the plain language of this statute required that the medical expert or experts who provided Essex with the corroborating presuit verified medical expert opinions be of the same specialty.SeeClare v. Lynch , 220 So.3d 1258, 1261(Fla. 2d DCA2017).

Appellant's reliance on our decisions in Apostolico and Long for the argument that the presuit affidavits here did not have to be from a health...