Michael Clare, M.D. v. Lynch
220 So. 3d 1258
| Fla. Dist. Ct. App. | 2017Background
- Lynch broke her toe, underwent surgery by Dr. Michael Clare (board-certified orthopedic surgeon), and later obtained a second opinion alleging the surgery was unnecessary.
- Lynch initiated presuit proceedings and submitted a verified corroborating affidavit from Dr. Benjamin Overley (board-certified podiatrist) under § 766.203(2).
- FOI (Clare and Florida Orthopaedic Institute) objected that the affidavit failed statutory presuit requirements because Overley is a podiatrist, not an orthopedic specialist; Lynch did not rebut this during presuit.
- After presuit, FOI denied liability; Lynch sued and the trial court initially dismissed for noncompliance with presuit affidavit requirements, but on rehearing the court reinstated the complaint.
- FOI sought certiorari review arguing the trial court departed from the essential requirements of law by accepting the podiatrist’s affidavit for a specialist defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a corroborating presuit affidavit satisfies § 766.102(5)(a) when the affiant practices a different specialty (podiatry) than the intended defendant (orthopedic surgery) | Lynch: Both doctors treat foot/ankle and perform surgery; different titles/training should not defeat the affidavit | FOI: Statute requires same specialty; a podiatrist is not an orthopedic specialist so affidavit is noncompliant | Court: Affidavit insufficient. Statute’s plain language requires same specialty for specialists; trial court departed from law by reinstating complaint |
| Whether the trial court may exercise discretion to accept an expert from a "similar" specialty despite the 2013 statutory amendments | Lynch: (implicitly) trial court can consider practical similarity; presuit rules construed liberally to allow access | FOI: 2013 amendments removed "similar specialty" language and trial-court discretion, so courts cannot accept similar-specialty experts | Court: Legislature removed similar-specialty and discretionary language; courts cannot add it back; presuit affidavit must meet statutory specialty requirement |
Key Cases Cited
- Shands Teaching Hosp. & Clinics, Inc. v. Estate of Lawson ex rel. Lawson, 175 So. 3d 327 (Fla. 1st DCA 2015) (certiorari review appropriate when trial court erroneously excuses presuit requirements)
- Rell v. McCulla, 101 So. 3d 878 (Fla. 2d DCA 2012) (affirming dismissal for failure to meet presuit affidavit requirements)
- Goldfarb v. Urciuoli, 858 So. 2d 397 (Fla. 1st DCA 2003) (certiorari review available to review denial of motion to dismiss on presuit compliance grounds)
- Baptist Med. Ctr. of Beaches, Inc. v. Rhodin, 40 So. 3d 112 (Fla. 1st DCA 2010) (discussing limits of certiorari and presuit requirements)
- S. Baptist Hosp. of Fla., Inc. v. Ashe, 948 So. 2d 889 (Fla. 1st DCA 2007) (presuit requirements and certiorari jurisdiction context)
- In re Amendments to the Florida Evidence Code, 210 So. 3d 1231 (Fla. 2017) (declining to adopt the "same specialty" amendment for evidence rules; did not address statute's constitutionality)
- Kukral v. Mekras, 679 So. 2d 278 (Fla. 1996) (noting presuit requirements are to be construed liberally to allow access to courts)