Jeffrey A. Hunt, D.O., P.A. v. Huppman

• Decision Date: 12 March 2010
• Docket Number: No. 2D09-4684.,2D09-4684.
• Parties: JEFFREY A. HUNT, D.O., P.A. d/b/a The Vein Center of Tampa Bay, Petitioner, v. Katrina HUPPMAN, Respondent.
• Court: Florida District Court of Appeals

28 So.3d 989

JEFFREY A. HUNT, D.O., P.A. d/b/a The Vein Center of Tampa Bay, Petitioner, v. Katrina HUPPMAN, Respondent.

No. 2D09-4684.

District Court of Appeal of Florida, Second District.

March 12, 2010.

Ronald Bush and Angela Cabassa of Bush Graziano & Rice, P.A., Tampa, for Petitioner.

Matthew S. Mudano of Ogden & Sullivan, P.A., Tampa, for Respondent.

SILBERMAN, Judge.

Jeffrey A. Hunt, D.O., P.A. d/b/a The Vein Center of Tampa Bay ("Vein Center") seeks certiorari review of the circuit court's order denying Vein Center's motion to dismiss and determining that Katrina Huppman complied with medical negligence presuit notice requirements. Because Huppman did not provide a corroborating affidavit by a qualified medical expert in compliance with section 766.203(2), Florida Statutes (2007), the circuit court departed from the essential requirements of the law in denying Vein Center's motion to dismiss. Accordingly, we grant certiorari and quash the circuit court's order.

Vein Center is the defendant in a pending medical negligence case in which Huppman alleged she sustained injuries when a technician at Vein Center treated her on December 18, 2006. In June 2008, Huppman served her notice of intent to initiate litigation ("NOI") pursuant to section 766.203(2).¹ In the NOI, Huppman alleged that she was injured after undergoing a treatment known as Lumenis One, which involved the use of intense pulsed light ("IPL") equipment to improve the appearance of age spots on her body.

Huppman did not serve a corroborating medical expert opinion with the NOI as required by section 766.203 because Huppman believed Vein Center had waived its right to medical corroboration by failing to provide Huppman with medical records. Vein Center served a written denial of the allegations in Huppman's NOI and a corroborating medical expert opinion. In the written denial, Vein Center asserted that Huppman failed to comply with the presuit notice requirements by failing to attach a medical expert opinion. Vein Center denied that it had failed to provide Huppman with medical records.

Huppman subsequently filed a complaint alleging medical negligence against Vein Center.² Vein Center filed a motion to dismiss in which it argued, among other things, that the complaint should be dismissed based on Huppman's failure to attach a medical expert opinion to the NOI. In response, Huppman maintained that Vein Center waived the medical expert opinion requirement by failing to produce requested medical records. However, Huppman also served Vein Center with the affidavit of Terri Boyert as a corroborating medical expert opinion.

According to Boyert's curriculum vitae ("CV"), Boyert is a certified medical assistant with training at the Eton Medical Institute in Washington. Boyert has trained doctors, nurses, and other staff members on various types of IPL and laser equipment, including Lumenis IPL equipment, for approximately ten years. Aside from her training at Eton, Boyert's CV bears the following notation: "Surgical Assistant, TCC College, Tacoma, Washington, 1987." Boyert's CV does not reflect that she is licensed to provide health care.

Vein Center subsequently filed a second motion to dismiss in which it argued that Huppman failed to comply with the presuit notice requirements because Boyert was not qualified to render a medical expert opinion under chapter 766.³ The circuit court entered an order denying Vein Center's motion to dismiss and determining that Huppman complied with medical negligence presuit notice requirements. The court explained that Boyert trained people on how to use the same Lumenis IPL equipment that was the subject of Huppman's lawsuit. The court concluded that Boyert was "adequately licensed, adequately trained, and comparable, in terms of her substantive knowledge about this area of medicine to render a presuit opinion" and that Boyert met the statutory criteria for a presuit witness under chapter 766.

Vein Center then filed the petition for writ of certiorari that is currently before this court. Vein Center argues that the circuit court departed from the essential requirements of the law in failing to dismiss the complaint based on Huppman's failure to provide a corroborating affidavit by a qualified medical expert in compliance with section 766.203(2). Preliminarily, we note that "the courts of this state have uniformly recognized the availability of certiorari review in cases where the presuit notice requirements of chapter 766 have not been met." Oken v. Williams, 23 So.3d 140, 144 (Fla. 1st DCA 2009). We review the sufficiency of the corroborating affidavit in order to comply with our duty to enforce the policy behind the presuit notice requirements. Id. at 145.

Section 766.203(2) requires "[c]orroboration of reasonable grounds to initiate medical negligence litigation" in the form of "a verified written medical expert opinion from a medical expert as defined in s. 766.202(6)." Section 766.202(6) defines 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." Section 766.102(5) provides, "A person may not give expert testimony concerning the prevailing professional standard of care unless that person is a licensed health care provider and meets the following criteria." Subsections (a)—(c) set forth differing criteria for expert witnesses depending upon the status of the person against whom or on whose behalf the testimony is being presented.

Thus, under sections 766.203(2), 766.202(6), and 766.102(5), the written expert opinion that accompanies a claimant's notice of intent must be rendered by a person who (1) is "duly and regularly engaged in the practice of his or her profession," (2) has a degree in health care from a college or university, (3) is a licensed health care provider, and (4) satisfies the expert witness requirements set forth in section 766.102(5).

Boyert's CV does not reflect, nor has Huppman ever asserted, that Boyert has a degree in health care from a college or university. Boyert's CV contains only these vague references to any college education: "Surgical Assistant, TCC College, Tacoma, Washington, 1987" and training at the Eton Medical Institute. Additionally, Boyert's CV does not reflect that Boyert is a licensed health care provider, and Huppman has conceded that Boyert is not licensed. Because Boyert does not meet these...