Same, Similar, and Everything in Between: Appellate Courts' Review of the Same-Specialty Requirement for Presuit Experts in Medical Malpractice Cases.

• Author: Lahlou-Amine, Sarah
• Position: Appellate Practice

The primary objective of Florida's medical malpractice presuit process is to keep unsupported lawsuits from proceeding into litigation. (1) To complete a statutorily mandated presuit investigation, a plaintiff must retain an expert to provide an opinion supporting the plaintiff's medical malpractice claim. (2) Compliance with this and all other presuit requirements is a condition precedent to filing suit. (3)

Whether a plaintiff's presuit expert opinion complies with the statutory requirements is a common point of attack in defendants' motions to dismiss medical malpractice lawsuits. Often, the challenge pertains to whether the expert is of the necessary specialty --a matter that has been the subject of judicial interpretation, legislative change, and vigorous debate over the years. This article tracks the evolving law on this issue, provides recommendations for counsel handling these matters in Florida's trial and appellate courts, and proposes a procedure that may better serve the parties and the policy behind the presuit statutory scheme.

Origins of the Presuit Process

Since the mid-1980s, the law has responded to an ever-shifting tide of public opinion regarding medical malpractice claims with efforts to balance a number of often competing interests: a plaintiff's ability to access justice, a defendant's ability to avoid spurious claims and excessive judgments, insurers' ability to offer reasonable premiums for professional liability insurance, and the public's ability to rely on a quality and cost effective health-care system. Ongoing struggles in these and other respects, individually and collectively, came to be referred to as Florida's "medical malpractice crisis." (4)

In 1988, in an effort to address various aspects of the perceived crisis, (5) the Florida Legislature passed laws providing for mandatory presuit investigation and voluntary arbitration in medical malpractice cases. (6) As the legislature described in its findings, the resulting statutory scheme was intended to facilitate the prompt resolution of medical malpractice claims and to prevent unsupported claims from going forward. (7)

As part of a plaintiff's presuit investigation, the plaintiff must review his or her claim against each potential defendant, consult with a qualifying medical expert, and obtain an opinion from such an expert supporting the claim. (8) The opinion must be provided in an affidavit with the plaintiff's presuit notice. (9) These requirements are "more than mere technicalities," as they serve to demonstrate the threshold legitimacy of a plaintiff's claim and to place the prospective defendant on notice. (10)

Evolving Requirements for Presuit Experts

When originally enacted, the presuit statutory scheme provided little guidance regarding the type of expert upon which a plaintiff could rely. (11) This lack of guidance and the resulting potential for a broad spectrum of rulings conflicted with Florida courts' longstanding recognition that a plaintiff's expert should be experienced in the defendant's specialty and knowledgeable in the corresponding day-to-day obligations. (12)

In 2003, the legislature "eliminated the distinction between an expert for presuit purposes and for [those] testifying at trial," holding experts at both stages to the same standard. (13) It amended F.S. [section]766.102 to require that such experts "[s]pecialize in the same specialty ... or ... a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients," among other requirements. (14)

This "same or similar specialty" requirement was both narrow enough to cause consternation among plaintiffs and broad enough to concern defendants. As courts grappled with its application, one of the issues that frequently arose was whether the requirement left room for an issue-based approach, whereby the applicable specialty could be defined as the type of procedure or medical care at issue. (15) While courts considered such an interpretation on a case-by-case basis, the underlying expectation that the plaintiff's expert be familiar with the defendant's day-to-day obligations remained largely intact. (16)

In 2013, in response to a perceived need to further tighten the specialty requirement, the legislature amended F.S. [section]766.102 to remove the "similar specialty" option. (17) The amendment also removed a provision that allowed "the trial court to disqualify or qualify an expert witness on grounds other than the qualifications [listed in the statute]," (18) ostensibly turning the vast majority of courts' decisions on these issues into matters of statutory compliance.

Availability of Review

When a plaintiff's presuit...