Florida, like many other states, treats medical malpractice claims differently than other claims based on negligence. The difference comes in the form of various statutory pre-suit requirements. They place quite a burden on plaintiffs, and they shouldn’t be taken lightly, as noncompliance will result in the harshest of penalties – dismissal of the lawsuit and liability for attorney’s fees. If the stakes are so high, then each of these requirements must, at the very least, be constitutional. Right? Well, maybe…
One of these pre-suit requirements is the submission of a verified written medical expert opinion, which must be signed by an appropriate expert. Whether the expert is appropriate depends on the practice or specialty of the defendant physician. Specifically, if the defendant physician has a specialty – for instance, orthopedic surgery – then the expert must have the same specialty. As explained in our last post, if the expert opinion is offered by a physician with a specialty different from that of the defendant physician, the lawsuit will get tossed, even if it’s meritorious in all other respects.
This requirement is often referred to as the “same specialty” requirement. It was implemented through an amendment of Section 766.102, Florida Statutes, which took effect in 2013. Several years later, the Florida Supreme Court declined to adopt the requirement “to the extent that it is procedural.” It did so because it had concerns bearing upon the constitutionality of the requirement – e.g., it limited access to the courts and prejudiced the administration of justice.
What the court did not do, however, was decide whether the same specialty requirement was constitutional. That’s because such a decision can only be made in an appropriate case or controversy, which the court was not addressing at that time. But, the following year, such a case or controversy arose when the defendants in a medical malpractice case moved to dismiss the case due to the plaintiff’s noncompliance with the requirement.
Despite that the constitutionality issue was properly in front of the trial court, it didn’t have to decide the issue because it denied the defendants’ motion. However, when the defendants sought certiorari review of the denial, the Fifth District Court of Appeal quashed the denial and remanded the case back to the trial court with instructions to rule on whether the requirement was constitutional.
On remand, the plaintiff argued that the same specialty requirement was unconstitutional for a variety of reasons: it violated the separation-of-powers doctrine, the right of access to the courts, and the equal protection clause, and it was void for vagueness. The trial court rejected each of these arguments, ruled that the requirement was constitutional, and dismissed the case with prejudice. It appears that the plaintiff was precluded from appealing the ruling due to the remand instructions from the appellate court.
Although the trial court’s constitutionality ruling has no precedential effect, it could be a reliable indicator of how Florida appellate courts would rule on the issue, if properly presented with it in the future. On the other hand, the ruling seems to be at odds with the Florida Supreme Court’s feelings on the issue, as expressed through its rejection of the requirement and its reasons for the rejection.
Two things are certain: the same specialty requirement remains in full force and effect, and Global Litigation Consultants has the knowledge, time, and resources to help you locate, vet, and retain the appropriate expert to comply with it.
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