372 So.3d 246
Fla.2023Background
- Laurie Carmody underwent cervical disk fusion and later developed an epidural abscess and paralysis; she sued UF/Shands alleging malpractice by a neurosurgeon and a nurse practitioner.
- Presuit statutes require a verified medical expert opinion from a qualifying expert under § 766.102; Carmody submitted an affidavit from Dr. James DeStephens (internal medicine/cardiology).
- UF/Shands moved to dismiss, arguing Dr. DeStephens did not meet the statutory expert-qualification requirements for either the neurosurgeon (subsection 5(a)) or the nurse practitioner (subsections 5(c) and 6); Carmody later dropped the neurosurgeon claim.
- The circuit court denied the motion to dismiss, finding Dr. DeStephens qualified to opine against the nurse practitioner; UF/Shands filed a certiorari petition to the First DCA, which dismissed for lack of jurisdiction.
- The Florida Supreme Court held certiorari unavailable because the circuit court’s ruling was not a departure from the essential requirements of law, disapproved conflicting Second and Fifth DCA decisions, but—recognizing legislative changes and policy concerns—amended Fla. R. App. P. 9.130 to permit interlocutory review of nonfinal orders denying dismissal based on corroborating-witness qualifications under § 766.102(5)-(9).
Issues
| Issue | Carmody's Argument | UF/Shands' Argument | Held |
|---|---|---|---|
| Whether certiorari is available to review a trial court’s denial of a motion to dismiss based on expert-qualification under the Medical Malpractice Act | Carmody: presuit procedural steps were satisfied; determination of expert qualification is a merits/sufficiency inquiry not proper for certiorari | UF/Shands: certiorari appropriate because presuit expert-qualification is jurisdictional and, post-2013 amendments, determinations are mechanical; denial causes irreparable harm | Certiorari unavailable here: no departure from essential requirements of law; district court decision largely approved, but court amended rule 9.130 to allow future interlocutory review of such denials |
| Effect of the 2013 amendments to § 766.102 on certiorari review | Carmody: amendments narrowed some options but did not eliminate trial-court discretion; many qualification questions remain discretionary/sufficiency determinations | UF/Shands: amendments removed judicial discretion making qualification determinations procedural and thus certiorari-reviewable | Court: amendments limited but did not erase discretion (e.g., "same or similar" language still requires evidence-based judgments); certiorari still inappropriate for sufficiency determinations |
| Whether Dr. DeStephens was legally unqualified to corroborate the claim against the nurse practitioner | Carmody: DeStephens met subsections 5(c) and 6 to opine about nurse practitioner standard of care | UF/Shands: DeStephens lacked the required recent devotion of professional time/experience and thus was unqualified | Court declined to reach the merits via certiorari (no essential departure); trial-court factual/sufficiency finding stands for now |
Key Cases Cited
- Williams v. Oken, 62 So. 3d 1129 (Fla. 2011) (limits certiorari review of presuit expert-qualification to procedural defects, not merits sufficiency)
- Reeves v. Fleetwood Homes of Florida, Inc., 889 So. 2d 812 (Fla. 2004) (articulates three-part test for certiorari jurisdiction: departure, irreparable harm, no adequate remedy)
- Citizens Property Insurance Corp. v. San Perdido Association, Inc., 104 So. 3d 344 (Fla. 2012) (orders denying motions to dismiss generally not subject to certiorari absent rule-based jurisdiction)
- State v. Gaines, 770 So. 2d 1221 (Fla. 2000) (Supreme Court alone sets scope of interlocutory appeals and appellate jurisdiction)
- Broward County v. G.B.V. International, Ltd., 787 So. 2d 838 (Fla. 2001) (describes certiorari as an extraordinary remedy to correct miscarriages of justice)