Martinez v. Ortiz

• Decision Date: 23 September 2022
• Docket Number: 2D21-653
• Parties: Maria MARTINEZ, Appellant, v. Don John PEREZ ORTIZ, M.D. and Perez Eye Center, P.L., Appellees.
• Court: Florida District Court of Appeals

346 So.3d 744

Maria MARTINEZ, Appellant,

v.Don John PEREZ ORTIZ, M.D. and Perez Eye Center, P.L., Appellees.

No. 2D21-653

District Court of Appeal of Florida, Second District.

September 23, 2022

Joel R. Epperson of Epperson & Rich, PLLC, Tampa; and Aida M. Rodriguez of Law Office of Aida M. Rodriguez, Tampa, for Appellant.

Gabrielle S. Osborne, Mindy McLaughlin, and Kaitlin V. Rosenthal of Beytin, McLaughlin, McLaughlin, O'Hara & Bocchino, Tampa, for Appellees Don John Perez Ortiz, M.D., and Perez Eye Center, P.L.

SMITH, Judge.

Maria Martinez appeals from an order dismissing with prejudice her medical malpractice complaint against Don John Perez Ortiz, M.D., and Perez Eye Center, P.L., for failing to comply with the presuit requirements of sections 766.102(5), .106, .202(6), and .203(2), Florida Statutes (2015). Because Ms. Martinez's expert affidavit satisfies the "same specialty" requirement and because she provided the expert affidavit prior to the expiration of the statute of limitations period, the trial court erred in dismissing her complaint with prejudice. Accordingly, we reverse the order of dismissal.¹

After undergoing nasal surgery

to remove nasal polyps, Ms. Martinez presented to her doctor with swelling and pressure behind and around her left eye. Her doctor referred her to Dr. Perez Ortiz, a board certified ophthalmologist working at Perez Eye Center. Ms. Martinez alleges that Dr. Perez Ortiz negligently misdiagnosed the condition affecting her left eye and that the treatment he provided was inadequate for her condition. She further alleges that as a result of Dr. Perez Ortiz's failure to properly diagnose and treat her condition, she suffered permanent damage to her eye. In her complaint, she also seeks to hold Dr. Perez Ortiz's medical practice, Perez Eye Center, vicariously liable for the alleged negligence of Dr. Perez Ortiz, as well as for the negligent hiring, training, and retention of Dr. Perez Ortiz.

Prior to the filing of the complaint, Ms. Martinez served her notices of intent to initiate litigation for medical malpractice on Dr. Perez Ortiz and Perez Eye Center on July 27, 2017. See § 766.106(2)(a). Neither of the notices of intent were served with the required sworn written medical corroboration. See § 766.203(2). However, during the extended presuit investigation period, Ms. Martinez did provide Dr. Perez Ortiz and Perez Eye Center with an affidavit from expert Dr. Harry Hamburger, M.D. prior to the expiration of the statute of limitations.² See §§ 95.11(4)(b), 766.106(4), Fla. Stat. (2015). Dr. Perez Ortiz and Perez Eye Center ultimately denied Ms. Martinez's medical malpractice claim during the investigatory period, and Ms. Martinez filed her complaint against Dr. Perez Ortiz, Perez Eye Center, and others not subject to this appeal.

Dr. Perez Ortiz and Perez Eye Center responded to the complaint by filing a "Motion to Dismiss for Failure to Comply with the Presuit Expert Requirement by Failing to Consult an Expert in the Same Specialty or, in the Alternative, Motion to Determine Whether [Ms. Martinez's] PreSuit Investigation Rests Upon a Reasonable Basis." Dr. Perez Ortiz and Perez Eye Center argued that Ms. Martinez failed to comply with the statutory presuit requirements in three ways: (1) the notices of intent, dated July 27, 2017, were not accompanied by an affidavit from a medical expert; (2) the expert affidavit of Dr. Hamburger does not satisfy the presuit requirements because Dr. Hamburger does not practice in the "same specialty" as Dr. Perez Ortiz, pursuant to section 766.102(5)(a)1; and (3) because Dr. Hamburger's affidavit cannot satisfy the requirements of sections 766.102(5)(a)1, .202(6), and .203(2), Ms. Martinez failed to cure the presuit deficiency within the statute of limitations, which thus required the complaint to be dismissed with prejudice.

After a hearing on the motion to dismiss, the trial court found that the notices of intent were not accompanied by the required written corroborating medical expert opinion. See § 766.203(2). The trial court determined that while Ms. Martinez provided Dr. Perez Ortiz and Perez Eye Center with an affidavit from Dr. Hamburger, Dr. Hamburger does not practice in the "same specialty" as Dr. Perez Ortiz, as required by section 766.102(5)(a)1. Specifically, the trial court found

Dr. Perez-Ortiz is a General Ophthalmologist; Dr. Hamburger is board[-]certified in ophthalmology, but is also a Neuro-Ophthalmologist, as established by the Court's review of several instances of Dr. Hamburger's testimony which demonstrated to the Court that Dr. Hamburger has additional neurologic training, practices in the field of neuro-ophthalmology, and therefore has additional training, practice experience and expertise than Dr. Perez-Ortiz as Neuro-Ophthalmology is a different specialty than Ophthalmology.

Based upon this reasoning, the trial court granted the motion to dismiss, dismissing the complaint with prejudice.

We review the trial court's dismissal of Ms. Martinez's medical malpractice suit de novo. Morris v. Muniz , 252 So. 3d 1143, 1155 (Fla. 2018) ("[W]here the facts regarding a presuit expert's qualifications are unrefuted, the proper standard of appellate review of a trial court's dismissal of a medical malpractice action based on its conclusion that the plaintiff's presuit medical expert is not qualified is de novo.").

Chapter 766 requires that certain actions must be taken before a plaintiff can file a medical malpractice suit. See Williams v. Oken , 62 So. 3d 1129, 1131 n.1 (Fla. 2011). "While these presuit requirements are conditions precedent to a malpractice suit, the provisions of the statute were not intended to deny access to the courts on the basis of technicalities." Rodriguez v. Nicolitz , 246 So. 3d 550, 553 (Fla. 1st DCA 2018) (citing Fort Walton Beach Med. Ctr., Inc. v. Dingler , 697 So. 2d 575, 579 (Fla. 1st DCA 1997) ).

Pursuant to section 766.106(2)(a) a potential plaintiff must serve on any potential defendant a presuit notice of intent to initiate litigation for medical negligence (notice of intent) after the potential plaintiff completes a presuit investigation pursuant to section 766.203(2). The potential plaintiff must also provide any potential defendant with a "verified written medical expert opinion from a medical expert as defined in s. 766.202(6)," which serves as corroboration of "reasonable grounds to support the claim" for medical negligence litigation. § 766.203(2).

Before we consider the statutory "same specialty" requirements and the trial court's related findings, we must first address the technical challenge raised by Dr. Perez Ortiz and Perez Eye Center as to the timeliness of Dr. Hamburger's affidavit when Ms. Martinez did not provide the required sworn, written medical expert opinion contemporaneously with her notice of intent to initiate litigation.

Section 766.203(2) states that the verified written medical expert opinion "shall be provided ... at the time the notice of intent to initial litigation is mailed." However, if the corroborating affidavit is not provided contemporaneously with the notice of intent to initiate litigation, the plaintiff can cure this deficiency by providing the affidavit before the expiration of the statute of limitations. See Dial 4 Care, Inc. v. Brinson , 319 So. 3d 111, 114 (Fla. 3d DCA 2021) ("Plaintiff provided a written corroborating medical expert opinion within the period of the statute of limitations, and then verified that opinion within the limitations period; he complied with the presuit notice requirements and should not be subject to the ultimate sanction—dismissal of his claim." (quoting Kukral v. Mekras , 679 So. 2d 278, 280 (Fla. 1996) )).

In the instant case, while Dr. Hamburger's affidavit was not served upon Dr. Perez Ortiz and Perez Eye Center contemporaneously with the notice of intent, it is undisputed that it was provided to them prior to the expiration of the statute of limitations, and thus, any deficiency was cured.

We next consider the more substantive argument—whether Dr. Hamburger satisfies the "medical expert" presuit requirement. We look first to the plain language of the statute. Borden v. E.-Eur. Ins. Co. , 921 So. 2d 587, 595 (Fla. 2006).

Under the clear language of section 766.202(6), "medical expert" is defined 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), in turn, provides in relevant part:

(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 ....³

In this case, the trial court found that Ms. Martinez failed to comply with the presuit requirements because Dr. Hamburger is not engaged in the "same specialty" as Dr. Perez Ortiz.

The term "same specialty" is not defined in the statute, but the language of the statute is clear and requires the patient to provide a presuit affidavit from a specialist in the same field as the prospective healthcare defendant. Riggenbach v. Rhodes , 267 So. 3d 551, 555–56 (Fla. 5th DCA 2019) ("Florida courts have previously decided that ‘same specialty’ is to be taken literally and is not synonymous with physicians with different specialties providing similar treatment to the same areas of the body."). But see Kukral , 679 So. 2d at 284 ("[T]he medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict...