Faber v. WrobelFaber v. Wrobel
- Reporters:
- ,
- Before:
- Blue Judge., Frank A.C.J., Whatley
Antoinette and Robert Faber appeal the final judgment dismissing their medical malpractice complaint for failure to comply with the presuit screening requirements. The dismissal occurred after the circuit court ruled that the Fabers’ medical expert was not qualified to render the opinion that accompanied their notice of intent to initiate medical malpractice litigation. Because the expert was qualified under the relevant statutory provision, we reverse.
Antoinette Faber fractured her left heel and received medical treatment from the defendant doctors. She eventually consulted an attorney for assistance in determining whether a malpractice suit existed. Her attorney obtained a verified written medical expert opinion from Dr. Richard Gardner stating that the treating physicians were negligent in their care of Mrs. Faber. Pursuant to
The defendants filed separate motions to dismiss the complaint, alleging, among other
This appeal examines the standard applicable to the disqualification of the corroborating expert‘s opinion in the medical malpractice presuit screening process. “A trial court‘s decision on the qualifications of an expert is ordinarily conclusive, and entitled to great weight on appeal, unless it is shown that the trial court applied erroneous legal principles in arriving at its decision.” Mathieu v. Schnitzer, 559 So.2d 1244, 1245 (Fla. 4th DCA 1990) (quoting Lake Hospital and Clinic, Inc. v. Silversmith, 551 So.2d 538, 545 (Fla. 4th DCA 1989)). Accordingly, this court‘s review is limited to whether the trial court applied the correct legal principles in determining that Dr. Gardner was not a qualified medical expert as defined in
[a] person duly and regularly engaged in the practice of his profession who holds a health care professional degree from a university or college and has had special professional training and experience or one possessed of special health care knowledge or skill about the subject upon which he is called to testify or provide an opinion.
The record shows that Dr. Gardner meets this standard. Although the trial court‘s order states that Dr. Gardner is not regularly engaged in the practice of his profession, the record on appeal does not contain competent and substantial evidence to support this finding. He is a board certified orthopedic surgeon, with a university medical degree and has professional training and experience in the treatment of orthopedic injuries. Dr. Gardner is the director of an orthopedic and sports clinic and holds a license to practice medicine from the State of Florida, as well as five other states. The record also contains numerous facts that might support Dr. Gardner‘s disqualification as an expert at trial, including his lack of hospital privileges and his nine previous disqualifications from testifying at trial.2 However, the factors that might support Dr. Gardner‘s disqualification as a trial expert are not within the purview of
In Maldonado v. EMSA Limited Partnership, 645 So.2d 86 (Fla. 3d DCA 1994), the Third District reviewed the trial court‘s ruling that the claimant‘s presuit expert was unqualified to render an opinion pertaining to emergency medical services. The Third District determined that:
[s]ection 766.202(5), which defines medical expert as expressly applicable to section 766.203, provides a less stringent standard than the section delineating the standard for admission of expert testimony in an action involving emergency medical services. The less stringent standard of section 766.202(5) is in keeping with the legislative aim of preventing frivolous lawsuits without denying a claimant‘s access to court.
We agree that
Accordingly, we reverse the order of dismissal and remand for further proceedings.
FRANK, A.C.J., and WHATLEY, J., concur.