Univ. of Fla. Bd. of Trs. v. Carmody

• Docket Number: SC2022-0068
• Decision Date: 06 July 2023
• Parties: UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, et al., Petitioners, v. LAURIE CARMODY, Respondent.
• Court: Florida Supreme Court

1

UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, et al., Petitioners, v. LAURIE CARMODY, Respondent.

No. SC2022-0068

Supreme Court of Florida

July 6, 2023

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal Certified Direct Conflict of Decisions First District - Case No. 1D21-634 (Alachua County)

Christine R. Davis of Davis Appeals, PLLC, Tallahassee Florida, for Petitioners

Kennan G. Dandar and Timothy M. Dandar of Dandar & Dandar, P.A. St. Petersburg, Florida; and Adam Richardson of Burlington & Rockenbach, P.A., West Palm Beach, Florida, for Respondent

Andrew S. Bolin of Bolin Law Group, Tampa, Florida, for Amici Curiae Florida Hospital Association, Florida Medical Association, and the Litigation Center of the American Medical Association

Kansas R. Gooden of Boyd & Jenerette, PA, Miami, Florida; and Jessica N. Cochran of Bush, Graziano, Rice & Platter, P.A., Tampa, Florida, for Amicus Curiae Florida Defense Lawyers Association

Bryan S. Gowdy and Dimitrios A. Peteves of Creed & Gowdy, P.A., Jacksonville, Florida, for Amicus Curiae the Florida Justice Association

COURIEL, J.

The Medical Malpractice Act^[1] sets requirements that anyone contemplating a medical malpractice case must meet before filing suit in Florida. One of these presuit requirements is to select an expert witness who meets certain criteria and will corroborate the basis of the plaintiff's claim. In this case, the petitioners moved to dismiss a medical malpractice action against them, asserting that the respondent's proposed expert did not meet these statutory requirements. The trial court denied the motion.

Is that trial court decision subject to certiorari review? That is, can an appellate court, exercising its authority^[2] to issue an interlocutory writ of certiorari,^[3] immediately review a trial court's ruling in this regard? No, said the First District Court of Appeal in University of Florida Board of Trustees v. Carmody, 331 So.3d 236 (Fla. 1st DCA 2021), certifying conflict with Clare v. Lynch, 220 So.3d 1258 (Fla. 2d DCA 2017), and Riggenbach v. Rhodes, 267 So.3d 551 (Fla. 5th DCA 2019).^[4] We agree with the First District that, while Florida courts "have recognized exceptions" to the general rule that "certiorari review is an inappropriate means of challenging a trial court's denial of a motion to dismiss," this is not one of them. Carmody, 331 So.3d at 237.

And yet we acknowledge that the Medical Malpractice Act changed the law such that an interlocutory remedy for parties facing claims that fail to satisfy its presuit requirements is warranted. Accordingly, in a concurrent opinion, we amend Florida Rule of Appellate Procedure 9.130(a)(3) to provide for interlocutory review of nonfinal orders that deny a motion to dismiss on the basis of the qualifications of a corroborating witness under subsections 766.102(5)-(9), Florida Statutes. In re Amend. to Fla. Rule of App. Proc. 9.130, No. SC2023-0701 (Fla. July 6, 2023).

I

William Friedman, M.D.-a neurosurgeon-performed a cervical disc fusion on Laurie Carmody at Shands Teaching Hospital and Clinics, Inc. Carmody subsequently experienced worsening pain, hardness, and redness at the incision site, as well as neurological symptoms, all of which she reported to Dr Friedman and Yolanda Gertsch-Lapcevic, A.R.N.P. When Carmody eventually became paralyzed, she sought treatment at an emergency room. The doctors there discovered that Carmody had developed an abscess on her spine that would ultimately require two additional surgeries, neither of which would fully restore her health.

Carmody decided to sue Shands and the University of Florida Board of Trustees (UF) for medical malpractice allegedly committed by Dr. Friedman and Nurse Practitioner Gertsch-Lapcevic. But first, Carmody had to satisfy the Medical Malpractice Act's presuit requirements.

While several sections of chapter 766 govern these presuit requirements, the provisions most relevant here require that

the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:

(a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and

(b) Such negligence resulted in injury to the claimant.

Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant's submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6) ....

§ 766.203(2), Fla. Stat. (2016) (emphasis added). Section 766.202(6) defines a medical expert as "a person duly and regularly engaged in the practice of his or her profession . . . and who meets the requirements of an expert witness as set forth in s. 766.102." § 766.202(6), Fla. Stat. (2016).

Section 766.102, in turn, provides that "[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 [certain] criteria ...." § 766.102(5), Fla. Stat. (2016). These certain criteria depend on the type of health care provider "against whom . . . the testimony is offered." Id. § 766.102(5)(a).

If the provider accused of malpractice is a specialist like Dr. Friedman, the corroborating expert must satisfy subsection (5) and:

1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; and

2. Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:

a. The active clinical practice of, or consulting with respect to, the same specialty;

b. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same specialty; or

c. A clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same specialty.

§ 766.102(5)(a), Fla. Stat. (2016).

If the provider accused of malpractice is a health care provider other than a specialist or a general practitioner-like Gertsch-Lapcevic, a nurse practitioner-the corroborating expert must satisfy both subsections (5)(c) and (6). Under subsection (5)(c), an expert may testify if he or she has "devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action" to:

1. The active clinical practice of, or consulting with respect to, the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered;

2. The instruction of students in an accredited health professional school or accredited residency program in the same or similar health profession in which the health care provider against whom or on whose behalf the testimony is offered; or

3. A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered.

§ 766.102(5)(c), Fla. Stat. (2016). And under subsection (6), a physician "may give expert testimony in a medical negligence action with respect to the standard of care of . . . medical support staff," including "nurse practitioners," if the physician is licensed, qualifies as an expert under subsection (5), and, "by reason of active clinical practice or instruction of students, has knowledge of the applicable standard of care for . . . nurse practitioners ...." § 766.102(6), Fla. Stat. (2016).

To satisfy these requirements, Carmody included within her presuit notices the affidavit of James DeStephens, M.D. In the affidavit, Dr. DeStephens attested that he was a "licensed medical doctor specializing in the practice of Internal Medicine, Hospital Medicine, and Cardiology."

Shands and UF moved to dismiss the complaint on the grounds that Dr. DeStephens did not satisfy subsection (5)(a) concerning a neurosurgeon like Dr. Friedman or subsections (5)(c) and (6) concerning a nurse practitioner like Gertsch-Lapcevic. Carmody provided a supplementary affidavit from Dr. DeStephens- who was also deposed-and the circuit court held hearings on the subject. The upshot of this litigation was that Carmody conceded that Dr. DeStephens did not meet the subsection (5)(a) requirements pertaining to Dr. Friedman-dropping him from the suit-while maintaining that Dr. DeStephens did meet the subsection (5)(c) and (6) requirements pertaining to Nurse Practitioner Gertsch-Lapcevic.

The circuit court ultimately denied the motion to dismiss, finding that Dr. DeStephens was qualified to render standard-of-care opinions against Nurse Practitioner Gertsch-Lapcevic under both subsections (5)(c) and (6).

Shands and UF filed a certiorari petition, asking the First District to quash the circuit court's order. They asserted that the First District had jurisdiction under article V, section 4(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(b)(2)(A). To meet this Court's standard for certiorari relief, Shands and UF argued that the circuit court's order departed from the essential requirements of the law and caused them irreparable harm. See Bd. of Trs. of Internal Improvement Tr. Fund v. Am Educ. Enters., LLC, 99 So.3d 450, 454 (Fla. 2012) ("The petitioning party must demonstrate that the contested order constitutes '(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that...