Pre-Suit Affidavit From Same Medical Specialty Required

Medical Malpractice

In the case of Michelle Davis as personal representative of the Estate of Sandra Dale Essex v. Michael A. Karr, M.D., et al, Case Number 5D18-149 (Fla. 5th DCA January 25, 2019), Florida’s Fifth DCA held that pre-suit affidavits from an emergency room physician, a radiologist, and a nurse were not sufficient to sue an orthopaedic surgeon accused of medical malpractice.

The same holding was also reached in Michael D. Riggenbach MD et al. v. Chad A. Rhodes, Case Nubmer 5D18-1889 (Fla. 5th DCA January 25, 2019)(presuit affidavit from a plastic surgeon is not considered the same “specialty” needed in order to sue an orthopedic surgeon for medical malpractice).

Alleged Bad Medicine

The underlying medical facts of this case are that Dr. Karr was negligent during a hip surgery on Ms. Essex and that his negligence caused a fracture to her femur (largest bone in the body). The opinion does not specifically state how that may have occurred except to say that the plaintiff’s expert witnesses stated in their pre-suit affidavits that there was reasonable grounds to believe that the medical provider was negligent and that such negligence resulted in injury to the patient.

The Lawsuit Was Dismissed For Pre-Suit Violations

After the plaintiff filed her lawsuit, Dr. Karr defended the lawsuit with a motion to dismiss alleging that the pre-suit process was defective in that the experts used to “sue” him did not specialize in the same field as is required by Chapter 766, Florida Statutes. As mentioned above, Dr. Karr is an orthopaedic surgeon while the specialties of the experts were emergency medicine, radiology, and nursing.

Section 766.102, Fla. Stat. requires

(a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must: 1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered;

Let me reiterate–Florida law requires an affidavit from a doctor with the SAME SPECIALTY as the defendant doctor in a medical malpractice case if you are suing a specialist. This is not to be confused with suing a general practitioner where Florida law allows an affidavit from a doctor with EXPERIENCE that is the same or similar to that of the defendant doctor. This is a very important distinction as it relates to “standard of care” expert witnesses in Florida medical malpractice cases.

Plaintiff’s Argument Was Confused

The plaintiff responded to Dr. Karr’s motion to dismiss by arguing that the “same specialty” requirement “only pertained to expert testimony presented at trial…” citing State Farm Mutual Automobile Ins. Co. v. Long, 189 So. 3d 335 (Fla. 5th DCA 2016) and Apostolico v. Orlando Regional Health Care Systems, Inc., 871 so. 2d 283 (Fla. 4th DCA 2004). The trial judge disagreed and granted a dismissal.

The problem with this argument is that it sidesteps the statutory pre-suit requirements in section 766.102 as quoted above for a specialist (as it relates to standard of care experts).

Lesson Learned – When In Doubt, Get An Affidavit From Someone With The Same Credentials

When it comes to standard of care experts in Florida medical malpractice cases, the plaintiff should try to find an expert with credentials as close as possible to the doctor who you are going to sue. In some cases, this can be difficult to find and the defendant doctor will argue that your affidavit was not from someone with the “same” specialty.

Regardless, if you have obtained your pre-suit affidavit from someone is actively practicing the same type of procedures as the doctor you intend to sue, then you have the argument that the expert practices in the “same” specialty as is required by Florida law.