Faber v. Wrobel
| Decision Date | 06 December 1995 |
| Docket Number | No. 94-02354,94-02354 |
| Citation | 673 So.2d 871 |
| Parties | 20 Fla. L. Weekly D2694 Antoinette FABER and Robert Faber, her husband, Appellants, v. Dr. Gerald C. WROBEL, M.D.; Associates In Orthopaedics, P.A., a Florida corporation; Dr. James Huddleston, M.D., Manuel M. Pena, M.D., P.A., a Florida corporation; and Manuel M. Pena, M.D., Appellees. |
| Court | Florida District Court of Appeals |
David F. Garber, Naples, for Appellants.
James G. Decker and Eugene H. Smith of Decker & Smith, Fort Myers, for Appellees Wrobel and Associates in Orthopaedics, P.A.
Diaz & Morel-Saruski, P.A., Coral Gables; and Bambi G. Blum of Anderson & Blum, P.A., Miami, for Appellee Huddleston.
Eugene L. Ciotoli and Armando T. Lauritano of Bobo, Spicer, Ciotoli, Fulford, Bocchino, Weidner, Debevois & LeClainche, P.A., West Palm Beach, for Appellees Pena, P.A., and Pena.
Antoinette and Robert Faber appeal the final judgment dismissing their medical malpractice complaint for failure to comply with the presuit screening requirements. The dismissal occurred after the circuit court ruled that the Fabers' medical expert was not qualified to render the opinion that accompanied their notice of intent to initiate medical malpractice litigation. Because the expert was qualified under the relevant statutory provision, we reverse.
Antoinette Faber fractured her left heel and received medical treatment from the defendant doctors. She eventually consulted an attorney for assistance in determining whether a malpractice suit existed. Her attorney obtained a verified written medical expert opinion from Dr. Richard Gardner stating that the treating physicians were negligent in their care of Mrs. Faber. Pursuant to section 766.106, Florida Statutes (1991), a notice of intent to initiate litigation for medical malpractice was sent to the defendants. In accordance with section 766.203(2)(b), Dr. Gardner's opinion was provided with the notice of intent. The Fabers subsequently filed their complaint.
The defendants filed separate motions to dismiss the complaint, alleging, among other grounds, that the Fabers' notice of intent failed to provide a verified written medical opinion from a medical expert qualified pursuant to section 766.202(5). The motions alleged that Dr. Gardner was not properly qualified because he had been disqualified as an expert witness a minimum of nine times. Following a hearing, the trial court determined that Dr. Gardner was not a qualified medical expert and therefore the notice of intent was not in compliance with the reasonable investigation requirements of sections 766.201-766.212. Pursuant to section 766.206(2), 1 the motions to dismiss were granted. Because the statute of limitations had expired, the dismissal was with prejudice.
This appeal examines the standard applicable to the disqualification of the corroborating expert's opinion in the medical malpractice presuit screening process. "A trial court's decision on the qualifications of an expert is ordinarily conclusive, and entitled to great weight on appeal, unless it is shown that the trial court applied erroneous legal principles in arriving at its decision." Mathieu v. Schnitzer, 559 So.2d 1244, 1245 (Fla. 4th DCA 1990) (quoting Lake Hospital and Clinic, Inc. v. Silversmith, 551 So.2d 538, 545 (Fla. 4th DCA 1989)). Accordingly, this court's review is limited to whether the trial court applied the correct legal principles in determining that Dr. Gardner was not a qualified medical expert as defined in section 766.202(5).
Section 766.202(5) defines a medical expert as:
[a] person duly and regularly engaged in the practice of his profession who holds a health care professional degree from a university or college and has had special professional training and experience or one possessed of special health care knowledge or skill about the subject upon which he is called to testify or provide an opinion.
The record shows that Dr. Gardner meets this standard. Although the trial court's order states that Dr. Gardner is not regularly engaged in the practice of his profession, the record on appeal does not contain competent and substantial evidence to support this finding. He is a board certified orthopedic surgeon, with a university medical degree and has professional training and experience in the treatment of orthopedic injuries. Dr. Gardner is the director of an orthopedic and sports clinic and holds a license to practice medicine from the State of Florida, as well as five other states. The record also contains numerous facts that might support Dr. Gardner's disqualification as an expert at...
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