Oken v. Williams

• Decision Date: 30 September 2009
• Docket Number: No. 1D08-3398.,1D08-3398.
• Parties: Keith Robinson OKEN, M.D. and Mayo Clinic of Florida, a Florida corporation, Petitioners, v. Ted WILLIAMS, Respondent.
• Court: Florida District Court of Appeals

23 So.3d 140

Keith Robinson OKEN, M.D. and Mayo Clinic of Florida, a Florida corporation, Petitioners, v. Ted WILLIAMS, Respondent.

No. 1D08-3398.

District Court of Appeal of Florida, First District.

September 30, 2009.

Rehearing Denied December 15, 2009.

Earle E. Googe, Jr. and Megan B. Ryan of Smith Hulsey & Busey, Jacksonville; and Marjorie C. Allen, In-House Legal Counsel, Mayo Clinic Jacksonville, Jacksonville, for Petitioners.

Bruce S. Bullock of Bullock & Bullock, P.A., Jacksonville, for Respondent.

WOLF, J.

We review a Petition for Writ of Certiorari claiming error in the trial court's Order Denying Motion of Defendants to Dismiss Pursuant to Section 766.206, Fla. Stat. The issue is whether the trial court departed from the essential requirements of law in denying petitioners' (defendants, Keith Robert Oken, M.D., and Mayo Clinic of Florida) motion to dismiss respondent's (plaintiff, Ted Williams) malpractice action for failing to timely comply with the statutory presuit requirements by failing to attach a corroborating affidavit of a "medical expert" as defined by section 766.202(6), Florida Statutes. We find merit in petitioners' claim in that the affidavit, on its face, fails to comply with the statute. We, therefore, grant the petition.

Respondent sent a notice of his intent to initiate litigation to Dr. Oken and the Mayo Clinic of Florida. The notice alleged that on February 4, 2005, respondent went to the emergency room at St. Luke's Hospital complaining of chest pain. The notice further alleged that while at the hospital, respondent was assessed by Catherine Northrop, M.D., who ordered, among other things, a consultation with Dr. Oken, a board certified cardiologist. In addition the notice alleged that Dr. Oken was negligent in "misrepresenting the EKG's, failing to admit respondent to conduct a full cardiac work-up, and later recommending that respondent take Maalox when respondent called in with worsening cardiac symptoms." The notice asserted that respondent suffered a compensable injury as a result of Dr. Oken's negligence: an acute myocardial infarction.

Attached to the notice was what purported to be a statutorily required corroborating affidavit from medical expert, John D. Foster, M.D. According to the affidavit and his curriculum vitae (CV), Dr. Foster is a family physician who is board certified as both a family and emergency physician and who has:

become familiar with the appropriate work up and treatment of suspected cardiac patients in the emergency room, and the consequences of failure to timely provide appropriate work up and treatment under such circumstances.

Dr. Foster's CV shows that he was previously employed at several hospitals as an emergency room physician. Upon receipt of the notice, petitioners state they sent respondent a letter requesting respondent provide any other corroboration of the claim.

Respondent filed a formal complaint basically alleging the same facts contained in the notice. Petitioners filed a Motion of the Defendants to Dismiss Pursuant to Section 766.206, Fla. Stat., alleging that Dr. Foster's corroborating affidavit was legally insufficient to satisfy the presuit requirement outlined in section 766.102, Florida Statutes (2007). Specifically, petitioners alleged Dr. Foster was not a medical expert in the field of cardiology and, thus, was not a qualified "medical expert."

Respondent filed a supplemental affidavit by Dr. Foster indicating that he is certified by the appropriate American boards in both Family Medicine and Emergency Medicine. In his supplemental affidavit, Dr. Foster stated he had experience in two medical specialties similar to that specialty practiced by Dr. Oken, to the extent that those are specialties that include the evaluation, diagnosis, or treatment of acute chest pain and impending myocardial infarction. Pursuant to this information, the trial judge found Dr. Foster to be a qualified medical expert within the meaning of section 766.202, Florida Statutes (2007). Outside of a conclusory statement in the affidavit, there are no facts set out demonstrating how the general practice areas of family and emergency medicine are or could be a specialty similar to cardiology.

Prior to instituting a claim based on medical negligence, a claimant must comply with the presuit requirements outlined in section 766.203(2), Florida Statutes. One of these requirements is the filing of a corroborating affidavit of reasonable grounds to initiate medical negligence from a medical expert as defined in section 766.202(6), Florida Statutes.

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.

The question before this court is whether Dr. Foster meets the qualifications as an expert witness pursuant to section 766.102. Specifically, petitioners assert that the trial court erred when it denied their motion to dismiss and concluded that respondent's expert was qualified as a medical expert under section 766.102(5), Florida Statutes, to corroborate respondent's claim.

We must first determine whether this case is one that is appropriate for certiorari review.

A non-final order for which no appeal is provided by Rule 9.130 is reviewable by petition for certiorari only in limited circumstances. The order must depart from the essential requirements of law and thus cause material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal. Brooks v. Owens, 97 So.2d 693 (Fla. 1957); Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942).

Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098-99 (Fla.1987) (footnotes omitted) (emphasis added). However, where a party can show the denial of an interlocutory order effectively leaves no adequate remedy on appeal, the supreme court has approved the grant of certiorari relief. See Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So.2d 1244 (Fla.2008) (reviewing and reversing a lower court's denial of a petition for writ of certiorari which held the circuit court retained subject matter jurisdiction over a tenant landlord dispute even where the dispute was properly raised before a county court); Belair v. Drew, 770 So.2d 1164 (Fla.2000) (allowing certiorari review of a trial courts denial of a motion to dismiss alleging the grandparent visitation statute unconstitutionally infringed on parents right to privacy, finding the harm sought to be prevented could not be remedied after visitation was granted, even if temporarily); Amente v. Newman, 653 So.2d 1030 (Fla.1995) (reviewing and reversing the Fifth Districts quashing of a discovery order raised on a petition for writ of certiorari); Tucker v. Resha, 648 So.2d 1187 (Fla.1994) (holding certiorari is appropriate for interlocutory review of an order denying qualified immunity protections where harm sought to be prevented cannot be undone following appeal).

Furthermore, the supreme court has recognized the granting of certiorari relief is appropriate to implement legislatively adopted policy concerning prerequisites which must be followed prior to proceeding with certain claims.¹ See, e.g., Globe Newspaper Co. v. King, 658 So.2d 518 (Fla.1995). Specifically, the supreme court approved of the grant of certiorari relief to review an order denying a petitioners request to add punitive damages pursuant to section 768.72 in some instances, stating:

In Kraft General Foods, Inc. v. Rosenblum, 635 So.2d 106 (Fla. 4th DCA), review denied, 642 So.2d 1363 (Fla.1994) (punitive damages claim), Henn v. Sandler, 589 So.2d 1334 (Fla. 4th DCA 1991) (financial worth discovery), and Sports Products, Inc. v. Estate of Inalien, 658 So.2d 1010, (Fla. 4th DCA 1994), review dismissed, 659 So.2d 1088 (Fla.1995), the district court ruled that the procedure mandated by section 768.72 must be followed, and failure to adhere to that procedure departs from the essential requirements of the law. The plain meaning of section 768.72 now requires a plaintiff to provide the court with a reasonable evidentiary basis for punitive damages before the court may allow a claim for punitive damages to be included in a plaintiff's complaint. To allow punitive damages claims to proceed as before would render section 768.72 meaningless. Furthermore, a plenary appeal cannot restore a defendant's statutory right under section 768.72 to be free of punitive damages allegations in a complaint until there is a reasonable showing by evidence in the record or proffered by the claimant. We therefore agree with the district court in Henn and Kraft and hold that appellate courts should grant certiorari in instances in which there is a demonstration by a petitioner that the procedures of section 768.72 have not been followed. We do not believe that this holding is in conflict with our decision in the Martin-Johnson case but rather is a recognition of the express requirements mandated by the statute.

Globe Newspaper Co., 658 So.2d at 519-520.

Likewise, 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.

Certiorari jurisdiction may lie when chapter 766 presuit requirements are at issue. Pearlstein v. Malunney, 500 So.2d 585 (Fla. 2d DCA 1986); St. Mary's Hosp. v. Bell, 785 So.2d 1261, 1262 (Fla. 4th DCA 2001); Okaloosa County v. Custer, 697 So.2d 1297, 1297 (Fla. 1st DCA 1997). The statutes requiring presuit notice and screening "cannot be meaningfully enforced postjudgment because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance." Parkway Bank, 658 So.2d at 649. In addition, interlocutory review may be necessary to promote the Medical Malpractice Reform Act...