267 So. 3d 551
Fla. Dist. Ct. App.2019Background
- Rhodes alleged malpractice by Dr. Riggenbach (orthopedic surgeon) after wrist surgery left an anchoring device lost in his wrist, causing additional surgery and permanent injury.
- Rhodes served a presuit notice including a verified expert affidavit from Dr. Drew Kreegel, a board-certified plastic surgeon who also performs hand/reconstructive surgery.
- Petitioners (Riggenbach and Orlando Orthopaedic Center) moved to dismiss for failure to comply with Chapter 766 presuit expert requirements because Kreegel was not a specialist in the same specialty as Riggenbach.
- After an evidentiary hearing and conflicting rulings, a successor judge denied the motion to dismiss, finding Kreegel’s experience placed him in the “same specialty.” Petitioners sought certiorari review.
- The court granted certiorari, concluded the 2013 statutory amendment requires an expert in the same specialty literally, found Kreegel’s affidavit statutorily insufficient, quashed the denial, and remanded for the trial court to first resolve whether Rhodes preserved a constitutional challenge to the statute and then rule on that challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether presuit expert must be in the defendant’s same specialty under § 766.102(5) | Kreegel’s practice and hand-surgery experience qualify him as same-specialty for purposes of expert affidavit | Statute requires an expert who literally practices in the same specialty as defendant; Kreegel (plastic surgery) is not an orthopedic specialist | The court held the statute’s “same specialty” requirement is clear and literal; Kreegel did not meet it, so presuit affidavit was insufficient |
| Whether trial court may qualify an expert on other grounds (experience) despite statutory language | Rhodes: trial court has inherent authority to consider experience and practice to deem expert qualified | Petitioners: 2013 amendments removed court discretion to qualify experts on other grounds | Court held legislative amendments removed the “similar specialty” and discretionary qualification; prior cases permitting broader qualification were effectively overruled by statute |
| Availability of certiorari review of order denying dismissal for presuit noncompliance | Rhodes implicitly: order denying dismissal should stand | Petitioners: noncompliant presuit affidavit causes material, irreparable injury; certiorari is available | Court found certiorari review appropriate where presuit statutes are at issue and quashed the trial court’s order |
| Next-step procedures on remand (constitutional challenge) | Rhodes: raised constitutional challenge to 2013 amendments; court should resolve it | Petitioners: trial court should dismiss if statute is valid; require preservation of constitutional challenge | Court remanded directing trial court first to determine whether Rhodes properly preserved his constitutional challenge and, if preserved, decide the constitutionality; if statute upheld, dismiss complaint with prejudice |
Key Cases Cited
- Holmes Reg'l Med. Ctr., Inc. v. Dumigan, 151 So.3d 1282 (Fla. 5th DCA 2014) (certiorari appropriate when presuit requirements are at issue)
- Rell v. McCulla, 101 So.3d 878 (Fla. 2d DCA 2012) (presuit compliance supports certiorari review)
- Oken v. Williams, 23 So.3d 140 (Fla. 1st DCA 2009) (uniform recognition of certiorari where presuit notice requirements not met)
- Williams v. Oken, 62 So.3d 1129 (Fla. 2011) (quashing Oken on other grounds)
- Cent. Fla. Reg'l Hosp. v. Hill, 721 So.2d 404 (Fla. 5th DCA 1998) (denial of dismissal for presuit noncompliance causes unrecoverable injury)
- Oliveros v. Adventist Health Sys./Sunbelt, Inc., 45 So.3d 873 (Fla. 2d DCA 2010) (prior precedent allowing qualification based on related experience)
- Clare v. Lynch, 220 So.3d 1258 (Fla. 2d DCA 2017) (same-specialty means literal specialty; podiatrist not same as orthopedist)
- Myers v. Pasco Cty. Sch. Bd., 246 So.3d 1278 (Fla. 1st DCA 2018) (same vs. similar specialty distinction reinforced)
- Davis v. Karr, 264 So.3d 279 (Fla. 5th DCA 2019) (affirmed dismissal where experts were not same-specialty)
- Kephart v. Hadi, 932 So.2d 1086 (Fla. 2006) (statutory interpretation is de novo)
- Borden v. E.-European Ins. Co., 921 So.2d 587 (Fla. 2006) (court seeks to effectuate legislative intent in statutory construction)
- Daniels v. Fla. Dep't of Health, 898 So.2d 61 (Fla. 2005) (when statute is clear, courts apply plain meaning)