Williams v. Oken

• Decision Date: 05 May 2011
• Docket Number: No. SC10–92.,SC10–92.
• Parties: Ted WILLIAMS, Petitioner,v.Keith Robinson OKEN, M.D., et al., Respondents.
• Court: Florida Supreme Court

62 So.3d 1129

Ted WILLIAMS, Petitioner,

v.Keith Robinson OKEN, M.D., et al., Respondents.

No. SC10–92.

Supreme Court of Florida.

May 5, 2011.

Joel Stephen Perwin, Miami, FL, and Bruce S. Bullock, Jacksonville, FL, for Petitioner.

Katherine E. Giddings of Akerman Senterfitt, Tallahassee, FL, Earl E. Googe, Jr. and Megan R. Heiden of Smith, Hulsey and Busey, Jacksonville, FL, and Marjorie C. Allen, Mayo Clinic, Jacksonville, FL, for Respondents.Susan L. Kelsey, Tallahassee, FL, on behalf of Florida Medical Association, as Amicus Curiae.PER CURIAM.

Petitioner, Ted Williams, seeks review of the decision of the First District Court of Appeal in Oken v. Williams, 23 So.3d 140 (Fla. 1st DCA 2009), on the ground that it expressly and directly conflicts with a decision of the Fourth District Court of Appeal in St. Mary's Hospital v. Bell, 785 So.2d 1261 (Fla. 4th DCA 2001), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we quash the First District's decision in Oken, and approve the Fourth District's decision in St. Mary's. Because we find that the First District's grant of certiorari was inappropriate, we decline to address Williams' remaining issues.

Facts and Procedural History

On March 8, 2007, Ted Williams sent by certified mail, return receipt requested, a notice of intent to initiate litigation to Dr. Keith Oken and the Mayo Clinic of Jacksonville. The notice alleged that, on February 4, 2005, Williams went to the emergency room at St. Luke's Hospital complaining of chest pain. Oken, 23 So.3d at 141. There, he was evaluated by Dr. Catherine Northrop, an emergency room physician. Id. Dr. Northrop assessed Williams and then ordered a consultation with Dr. Oken, a board certified cardiologist. Id. Williams alleged that, as a result of Dr. Oken's negligence, he suffered an acute myocardial infarction. Id. at 142. Williams alleged that Dr. Oken was negligent in (1) misrepresenting EKG results, (2) failing to admit Williams to the hospital, (3) failing to conduct a full work-up, and (4) later recommending that Williams take Maalox when Williams called in with worsening symptoms. Id.

Attached to Williams' notice was the corroborating affidavit and curriculum vitae (CV) of Dr. Foster. Id. Dr. Foster's affidavit and CV revealed that he was “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,” and that he was “familiar with the standard of care of reasonably careful physicians in diagnosing and treating impending myocardial infarction under the same or similar circumstances as those presented in this case.” The affidavit and CV also revealed that Dr. Foster had been employed as an emergency room physician at multiple hospitals. See id. Dr. Oken then sent Williams a letter that requested additional corroboration of the claim. See id.

On August 6, 2007, Williams filed a formal complaint in the Fourth Judicial Circuit Court, in and for Duval County, Florida, alleging the same facts contained in the notice. Id. Pursuant to section 766.206, Florida Statutes (2005), Dr. Oken filed a motion to dismiss the complaint for Williams' alleged failure to timely comply with statutory presuit requirements of chapter 766, Florida Statutes (2005), the Medical Malpractice Reform Act. See Oken, 23 So.3d at 142. Specifically, Dr. Oken alleged that Dr. Foster was not an expert in the field of cardiology, and as a result, Williams had failed to comply with section 766.102, Florida Statutes (2005), because he failed to attach a corroborating affidavit from a qualified medical expert. See id. Williams filed a supplemental affidavit from Dr. Foster. The supplemental affidavit indicated that Dr. Foster was board certified in emergency room and family medicine. It also indicated that both of those medical fields involve the “evaluation, diagnosis, or treatment of acute chest pain and impending myocardial infarction,” and that Dr. Foster had “performed 15,000–20,000 evaluations of chest pain in an emergency room setting.” Based on the foregoing, the trial court specifically concluded that Dr. Foster was qualified as an expert and denied Dr. Oken's motion to dismiss. See id.

Dr. Oken petitioned the First District for a writ of certiorari. See Oken, 23 So.3d at 143. The First District held that (1) certiorari review was appropriate, and (2) Dr. Foster, as an emergency medicine and family physician, was not qualified to provide an expert corroborating affidavit for a cardiology-related claim. Id. at 150. Therefore, the First District granted Dr. Oken's petition for writ of certiorari and quashed the trial court's denial of the motion to dismiss. Id.

On January 13, 2010, Williams filed a notice to invoke discretionary review jurisdiction in this Court, alleging express and direct conflict between the First District's decision below and the district court decisions in Campbell v. State, 949 So.2d 1093 (Fla. 3d DCA 2007), Fassy v. Crowley, 884 So.2d 359 (Fla. 2d DCA 2004), St. Mary's, 785 So.2d 1261, Fine v. Carney Bank of Broward County, 508 So.2d 558 (Fla. 4th DCA 1987), and Finchum v. Vogel, 194 So.2d 49 (Fla. 4th DCA 1966). This Court granted review.

Williams raises the following three issues on review: (1) whether the district court erred or exceeded its constitutional authority in reviewing the trial court's order on certiorari, (2) whether the district court erred in ruling that the uncontradicted facts provided by Dr. Foster did not satisfy the statutory presuit requirements for the corroborating affidavit of a medical expert, and (3) whether the district court erred in supporting its decision by reference to internet material cited for the first time in the respondent's reply brief in the district court. Because the first issue is dispositive, we decline to address Williams' remaining issues. For the reasons expressed below, we quash the First District's decision in Oken and approve the Fourth District's decision in St. Mary's.

Analysis

A common-law writ of certiorari rests in the sound discretion of the court to which the application was made, and thus, a court's grant of certiorari is subject to an abuse of discretion standard of review. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla.1995).

Before a court may grant certiorari relief from the denial of a motion to dismiss, the petitioner must establish the following three elements: “ ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002)). In other words, certiorari relief is available when a lower court has departed from the essential requirements of the law or when a lower court has acted in excess of its jurisdiction, and no appeal or direct method of reviewing the proceeding exists. See Haines, 658 So.2d at 527. The last two elements are jurisdictional and must be analyzed before the court may even consider the first element. See id.; Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648–49 (Fla. 2d DCA 1995). In the instant case, we concern ourselves with the first element—whether the trial court departed from the essential requirements of the law.

Once the district court has granted the petition for writ of certiorari, it must determine whether the first element has been established. We have explained:

[T]he phrase “departure from the essential requirements of law” should not be narrowly construed so as to apply only to violations which effectively deny appellate review or which pertain to the regularity of procedure. In granting writs of common-law certiorari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error. Since it is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of law, the district courts must be allowed a large degree of discretion so that they may judge each case individually. The district courts should exercise this discretion only when there has been a violation of clearly established principle of law resulting in a miscarriage of justice.

It is this discretion which is the essential distinction between review by appeal and review by common-law certiorari. A district court may refuse to grant a petition for common-law certiorari even though there may have been a departure from the essential requirements of law. The district courts should use this discretion cautiously so as to avert the possibility of common-law certiorari being used as a vehicle to obtain a second appeal.

Haines, 658 So.2d at 527 (emphasis omitted) (quoting Combs v. State, 436 So.2d 93, 95–96 (Fla.1983)). Certiorari review is “intended to fill the interstices between direct appeal and the other prerogative writs” and allow a court to reach down and halt a miscarriage of justice where no other remedy exists; it “was never intended to redress mere legal error.” Broward Cnty. v. G.B.V. Int'l, Ltd., 787 So.2d 838, 842 (Fla.2001). This Court has cautioned that “certiorari review is appropriate to determine whether a court has conducted the evidentiary inquiry required by section 768.72, Florida Statutes, but not so broad as to encompass review of the sufficiency of the evidence considered in that inquiry.” Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla.1995).

In the instant case, the First District categorized their inquiry as a “review [of] the trial court's legal determination concerning the sufficiency of the corroborating affidavit.” Oken, 23 So.3d at 145. The First District attempted to justify this action...