134 So. 3d 1056
Fla. Dist. Ct. App.2013Background
- Plaintiff underwent lower eyelid (blepharoplasty) surgery and alleged a rare postoperative bacterial (Nocardia) infection causing further surgery and disfigurement.
- Plaintiff served a pre-suit Notice of Intent with a verified affidavit from an infectious disease (ID) physician attributing the infection to improper sterilization during the ophthalmic surgery.
- Defendant ophthalmologist responded that the ID physician did not meet the statutory “specialty” requirement for a medical expert under Fla. Stat. § 766.102, and later pleaded noncompliance with chapter 766 as an affirmative defense.
- Trial court held an unrecorded hearing and dismissed the ophthalmologist, finding the ID physician’s affidavit insufficient under the specialization requirement of § 766.102.
- The appellate court reviewed de novo and affirmed dismissal, concluding an ophthalmic specialist generally requires an expert in the same or a similar specialty that specifically includes evaluation/management of the claimed condition; an ID specialist was not a similar specialty for ocular surgery complications in this case.
- Judge Levine dissented, arguing the ID expert’s experience in infection control and epidemiology satisfied the pre-2013 statute’s “similar specialty” language and urging liberal construction to preserve access to courts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the infectious disease expert’s affidavit satisfied § 766.102’s specialization requirement for pre-suit medical expert opinions | The ID physician’s expertise in infectious disease, epidemiology, and infection control qualifies as a “similar specialty” that includes evaluation/diagnosis/treatment of the infection alleged to result from the ophthalmic surgery | A specialist defendant (ophthalmologist) requires an expert in the same or a similar specialty that specifically covers the ophthalmic condition; an ID physician is not a similar specialty for eye surgery malpractice | Affirmed: ID physician did not meet the specialization requirement; dismissal of ophthalmologist upheld |
| Whether defendant waived the chapter 766 pre-suit compliance defense by not pleading it precisely | Waiver argued by plaintiff because defendant’s Answer lacked a more specific pleading | Defendant asserted noncompliance in the Answer and previously challenged sufficiency in writing, providing adequate notice | Held: No waiver — pleadings and prior correspondence sufficed to preserve the defense |
| Proper interpretive approach to the term “similar specialty” in § 766.102 | Plaintiff/dissent: interpret liberally to allow experts with relevant experience to satisfy statute and preserve access to courts | Majority: require same or truly similar specialty tied to evaluation/management of the precise medical condition; otherwise specialization is vitiated | Held: Court applied a narrower view—specialist claims ordinarily require identical or closely similar specialist expertise; liberal approach rejected in this case |
| Relevance of subsequent legislative amendment (2013) narrowing experts to same specialty | Plaintiff/dissent: post-enactment change supports that prior language allowed broader interpretation and that the ID expert complied with pre-amendment law | Defendant: (implicit) case decided under pre-2013 statute; majority focused on statutory text as applied to facts | Held: Majority decided under pre-amendment statute but adopted a narrower construction; dissent relied on amendment to support broader pre-amendment reading |
Key Cases Cited
- Oliveros v. Adventist Health Sys./Sunbelt, Inc., 45 So.3d 873 (Fla. 2d DCA) (standard of de novo review for statutory expert-qualification determinations)
- Weiss v. Pratt, 53 So.3d 395 (Fla. 4th DCA) (permitting non‑specialist expert for limited, non‑specialized testimony; cautioning limits where specialized knowledge is required)
- Barrio v. Wilson, 779 So.2d 413 (Fla. 2d DCA) (example where pulmonologist was not qualified to testify against an ER physician)
- Patry v. Capps, 633 So.2d 9 (Fla.) (presuit notice and screening statutes should be construed to favor access to courts)
- Kukral v. Mekras, 679 So.2d 278 (Fla.) (statutory scheme interpreted liberally but balanced against screening frivolous suits)
- Gay v. Can. Dry Bottling Co. of Fla., 59 So.2d 788 (Fla.) (courts may consider subsequent legislation in interpreting prior statutes)
- Capella v. City of Gainesville, 377 So.2d 658 (Fla.) (legislative omission in amendment indicates intended change in meaning)