DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
MARIA MARTINEZ,
Appellant,
v.
DON JOHN PEREZ ORTIZ, M.D. and
PEREZ EYE CENTER, P.L.,
Appellees.
No. 2D21-653
September 23, 2022
Appeal from the Circuit Court for Hillsborough County; Emily A.
Peacock, Judge.
Joel R. Epperson of Epperson & Rich, PLLC, Tampa; and Aida M.
Rodriguez of Law Office of Aida M. Rodriguez, Tampa, for Appellant.
Gabrielle S. Osborne, Mindy McLaughlin, and Kaitlin V. Rosenthal
of Beytin, McLaughlin, McLaughlin, O'Hara & Bocchino, Tampa, for
Appellees Don John Perez Ortiz, M.D., and Perez Eye Center, P.L.
SMITH, Judge.
Maria Martinez appeals from an order dismissing with
prejudice her medical malpractice complaint against Don John
Perez Ortiz, M.D., and Perez Eye Center, P.L., for failing to comply
with the presuit requirements of sections 766.102(5), .106, .202(6),
and .203(2), Florida Statutes (2015). Because Ms. Martinez's expert
affidavit satisfies the "same specialty" requirement and because she
provided the expert affidavit prior to the expiration of the statute of
limitations period, the trial court erred in dismissing her complaint
with prejudice. Accordingly, we reverse the order of dismissal.1
After undergoing nasal surgery to remove nasal polyps, Ms.
Martinez presented to her doctor with swelling and pressure behind
and around her left eye. Her doctor referred her to Dr. Perez Ortiz,
a board certified ophthalmologist working at Perez Eye Center. Ms.
Martinez alleges that Dr. Perez Ortiz negligently misdiagnosed the
condition affecting her left eye and that the treatment he provided
was inadequate for her condition. She further alleges that as a
result of Dr. Perez Ortiz's failure to properly diagnose and treat her
1 Because we hold that Ms. Martinez properly delivered the
affidavit before the statute of limitations period ran, thereby curing
any deficiency, we need not reach the issue of whether Ms. Martinez
was excused from providing a written corroborating expert affidavit
because Dr. Perez Ortiz and Perez Eye Center allegedly failed to
provide her medical records within ten days of her request, as
required by section 766.204(2).
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condition, she suffered permanent damage to her eye. In her
complaint, she also seeks to hold Dr. Perez Ortiz's medical practice,
Perez Eye Center, vicariously liable for the alleged negligence of Dr.
Perez Ortiz, as well as for the negligent hiring, training, and
retention of Dr. Perez Ortiz.
Prior to the filing of the complaint, Ms. Martinez served her
notices of intent to initiate litigation for medical malpractice on Dr.
Perez Ortiz and Perez Eye Center on July 27, 2017. See
§ 766.106(2)(a). Neither of the notices of intent were served with
the required sworn written medical corroboration. See
§ 766.203(2). However, during the extended presuit investigation
period, Ms. Martinez did provide Dr. Perez Ortiz and Perez Eye
Center with an affidavit from expert Dr. Harry Hamburger, M.D.
prior to the expiration of the statute of limitations.2 See
2 Dr. Perez Ortiz and Perez Eye Center allege that the trigger
date for the statute of limitations is May 11, 2015, the day Ms.
Martinez was discharged from the hospital. Assuming, arguendo,
that this was the triggering date for statute of limitations purposes,
Ms. Martinez had two years from that date, or until May 11, 2017,
to serve her notices of intent to initiate litigation on Dr. Perez Ortiz
and Perez Eye Center. See § 95.11(4)(b), Fla. Stat. (2015); see also
§ 766.106(4). Prior to that time, Ms. Martinez obtained an
automatic ninety-day extension of the statute of limitations
pursuant to section 766.104(2), giving Ms. Martinez until August 8,
3
§§ 95.11(4)(b), 766.106(4), Fla. Stat. (2015). Dr. Perez Ortiz and
Perez Eye Center ultimately denied Ms. Martinez's medical
malpractice claim during the investigatory period, and Ms. Martinez
filed her complaint against Dr. Perez Ortiz, Perez Eye Center, and
others not subject to this appeal.
Dr. Perez Ortiz and Perez Eye Center responded to the
complaint by filing a "Motion to Dismiss for Failure to Comply with
the Presuit Expert Requirement by Failing to Consult an Expert in
the Same Specialty or, in the Alternative, Motion to Determine
Whether [Ms. Martinez's] PreSuit Investigation Rests Upon a
Reasonable Basis." Dr. Perez Ortiz and Perez Eye Center argued
2017, to serve her notice of intent on Dr. Perez Ortiz and Perez Eye
Center. Ms. Martinez served her notices of intent on Dr. Perez Ortiz
and Perez Eye Center on July 27, 2017, triggering the ninety-day
tolling of the statute of limitations under section 766.106(4). The
parties agreed to further extend the presuit investigation period on
three separate occasions. Dr. Perez Ortiz and Perez Eye Center
ultimately denied Ms. Martinez's claims on November 22, 2017.
Accordingly, the statute of limitations was set to expire on January
22, 2018. See § 766.106(4) ("Upon receiving notice of termination of
negotiations in an extended period, the claimant shall have 60 days
or the remainder of the period of the statute of limitations,
whichever is greater, within which to file suit."). Ms. Martinez
provided Dr. Perez Ortiz and Perez Eye Center with the affidavit of
Dr. Hamburger on October 10, 2017—well before the expiration of
the statute of limitations.
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that Ms. Martinez failed to comply with the statutory presuit
requirements in three ways: (1) the notices of intent, dated July 27,
2017, were not accompanied by an affidavit from a medical expert;
(2) the expert affidavit of Dr. Hamburger does not satisfy the presuit
requirements because Dr. Hamburger does not practice in the
"same specialty" as Dr. Perez Ortiz, pursuant to section
766.102(5)(a)1; and (3) because Dr. Hamburger's affidavit cannot
satisfy the requirements of sections 766.102(5)(a)1, .202(6), and
.203(2), Ms. Martinez failed to cure the presuit deficiency within the
statute of limitations, which thus required the complaint to be
dismissed with prejudice.
After a hearing on the motion to dismiss, the trial court found
that the notices of intent were not accompanied by the required
written corroborating medical expert opinion. See § 766.203(2).
The trial court determined that while Ms. Martinez provided Dr.
Perez Ortiz and Perez Eye Center with an affidavit from Dr.
Hamburger, Dr. Hamburger does not practice in the "same
specialty" as Dr. Perez Ortiz, as required by section 766.102(5)(a)1.
Specifically, the trial court found
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Dr. Perez-Ortiz is a General Ophthalmologist; Dr.
Hamburger is board[-]certified in ophthalmology, but is
also a Neuro-Ophthalmologist, as established by the
Court's review of several instances of Dr. Hamburger's
testimony which demonstrated to the Court that Dr.
Hamburger has additional neurologic training, practices
in the field of neuro-ophthalmology, and therefore has
additional training, practice experience and expertise
than Dr. Perez-Ortiz as Neuro-Ophthalmology is a
different specialty than Ophthalmology.
Based upon this reasoning, the trial court granted the motion to
dismiss, dismissing the complaint with prejudice.
We review the trial court's dismissal of Ms. Martinez's medical
malpractice suit de novo. Morris v. Muniz, 252 So. 3d 1143, 1155
(Fla. 2018) ("[W]here the facts regarding a presuit expert's
qualifications are unrefuted, the proper standard of appellate review
of a trial court's dismissal of a medical malpractice action based on
its conclusion that the plaintiff's presuit medical expert is not
qualified is de novo.").
Chapter 766 requires that certain actions must be taken
before a plaintiff can file a medical malpractice suit. See Williams v.
Oken, 62 So. 3d 1129, 1131 n.1 (Fla. 2011). "While these presuit
requirements are conditions precedent to a malpractice suit, the
provisions of the statute were not intended to deny access to the
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courts on the basis of technicalities." Rodriguez v. Nicolitz, 246 So.
3d 550, 553 (Fla. 1st DCA 2018) (citing Fort Walton Beach Med. Ctr.,
Inc. v. Dingler, 697 So. 2d 575, 579 (Fla. 1st DCA 1997)).
Pursuant to section 766.106(2)(a) a potential plaintiff must
serve on any potential defendant a presuit notice of intent to initiate
litigation for medical negligence (notice of intent) after the potential
plaintiff completes a presuit investigation pursuant to section
766.203(2). The potential plaintiff must also provide any potential
defendant with a "verified written medical expert opinion from a
medical expert as defined in s. 766.202(6)," which serves as
corroboration of "reasonable grounds to support the claim" for
medical negligence litigation. § 766.203(2).
Before we consider the statutory "same specialty"
requirements and the trial court's related findings, we must first
address the technical challenge raised by Dr. Perez Ortiz and Perez
Eye Center as to the timeliness of Dr. Hamburger's affidavit when
Ms. Martinez did not provide the required sworn, written medical
expert opinion contemporaneously with her notice of intent to
initiate litigation.
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Section 766.203(2) states that the verified written medical
expert opinion "shall be provided . . . at the time the notice of intent
to initial litigation is mailed." However, if the corroborating affidavit
is not provided contemporaneously with the notice of intent to
initiate litigation, the plaintiff can cure this deficiency by providing
the affidavit before the expiration of the statute of limitations. See
Dial 4 Care, Inc. v. Brinson, 319 So. 3d 111, 114 (Fla. 3d DCA 2021)
("Plaintiff provided a written corroborating medical expert opinion
within the period of the statute of limitations, and then verified that
opinion within the limitations period; he complied with the presuit
notice requirements and should not be subject to the ultimate
sanction—dismissal of his claim." (quoting Kukral v. Mekras, 679
So. 2d 278, 280 (Fla. 1996))).
In the instant case, while Dr. Hamburger's affidavit was not
served upon Dr. Perez Ortiz and Perez Eye Center
contemporaneously with the notice of intent, it is undisputed that it
was provided to them prior to the expiration of the statute of
limitations, and thus, any deficiency was cured.
We next consider the more substantive argument—whether
Dr. Hamburger satisfies the "medical expert" presuit requirement.
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We look first to the plain language of the statute. Borden v. E.-Eur.
Ins. Co., 921 So. 2d 587, 595 (Fla. 2006). Under the clear language
of section 766.202(6), "medical expert" is defined as "a person duly
and regularly engaged in the practice of his or her profession who
holds a health care professional degree from a university or college
and who meets the requirements of an expert witness as set forth in
s. 766.102."
Section 766.102(5), in turn, provides in relevant part:
(5) A person may not give expert testimony
concerning the prevailing professional standard of care
unless the person is a health care provider who holds an
active and valid license and conducts a complete review
of the pertinent medical records and meets the following
criteria:
(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 . . . .3
3 The previous version of section 766.102(5)(a)1 provided that
to offer testimony against a specialist, the expert witness must
"[s]pecialize in the same specialty as the health care provider
against whom . . . the testimony is offered; or specialize in 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." § 766.102(5)(a)1, Fla. Stat.
(2011) (emphasis added). However, in 2013, the legislature
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In this case, the trial court found that Ms. Martinez failed to
comply with the presuit requirements because Dr. Hamburger is
not engaged in the "same specialty" as Dr. Perez Ortiz.
The term "same specialty" is not defined in the statute, but the
language of the statute is clear and requires the patient to provide a
presuit affidavit from a specialist in the same field as the
prospective healthcare defendant. Riggenbach v. Rhodes, 267 So.
3d 551, 555–56 (Fla. 5th DCA 2019) ("Florida courts have
previously decided that 'same specialty' is to be taken literally and
is not synonymous with physicians with different specialties
providing similar treatment to the same areas of the body."). But
see Kukral, 679 So. 2d at 284 ("[T]he medical malpractice statutory
scheme must be interpreted liberally so as not to unduly restrict a
Florida citizen's constitutionally guaranteed access to the courts,
while at the same time carrying out the legislative policy of
screening out frivolous lawsuits and defenses."); Patry v. Capps, 633
amended section 766.102(5)(a)1 to remove the "similar specialty"
language. Ch. 2013-108, § 2, Laws of Fla. Accordingly, the statute
now requires that the expert must "[s]pecialize in the same specialty
as the health care provider against whom . . . the testimony is
offered." § 766.102(5)(a)1, Fla. Stat. (2013) (emphasis added).
10
So. 2d 9, 13 (Fla. 1994) ("[W]hen possible the presuit notice and
screening statute should be construed in a manner that favors
access to courts.").
In Riggenbach, Dr. Riggenbach, board-certified in orthopedic
surgery, filed a motion to dismiss, objecting to the affidavit of the
plaintiff's expert who was a board-certified plastic surgeon and
otolaryngologist—practicing in plastic reconstructive and hand
surgery. 267 So. 3d at 553. The plaintiff suffered permanent
damage to his wrist and required additional surgeries when the
anchoring mechanism that Dr. Riggenbach placed became lost in
his wrist. Id. The trial court ultimately denied the motion to
dismiss finding that both doctors were engaged in the same
specialty. Id. On petition for certiorari, the appellate court granted
the petition and quashed the order denying dismissal holding that
the plaintiff "failed to comply with the requirement of providing a
written medical expert opinion from a specialist in the same
specialty as [Dr. Riggenbach]." Id. at 556; see also Davis v. Karr,
264 So. 3d 279 (Fla. 5th DCA 2019) (holding affidavits from an
emergency room physician, radiologist, and nurse did not satisfy
the "same specialty" requirement where prospective defendant was
11
an orthopedic surgeon); Edwards v. Sunrise Ophthalmology Asc,
LLC, 134 So. 3d 1056, 1059 (Fla. 4th DCA 2013) (holding infectious
disease doctor was not "similar specialty" to ophthalmologist where
infectious disease doctor was not an eye surgeon and
ophthalmologist was not an infectious disease doctor).
We similarly addressed the "same specialty" requirement in
Clare v. Lynch, 220 So. 3d 1258, 1261-62 (Fla. 2d DCA 2017).
There, the plaintiff submitted the expert affidavit of a board-certified
podiatrist with her notice of intent to litigate, alleging that Dr. Clare
negligently performed surgery on her foot after she broke her toe.
Id. at 1259. Dr. Clare filed a petition for writ of certiorari
challenging the trial court's reinstatement of the plaintiff's
complaint arguing that a board-certified podiatrist is not in the
same specialty as a board-certified orthopedic surgeon. Id. And we
agreed. We held that the plaintiff's expert affidavit failed to "meet
the requirements of the plain language of section 766.102(5),"
where it was undisputed that Dr. Clare was a board-certified
orthopedic surgeon, and the other expert was not. Id. at 1260-61.
Here, it is undisputed that Dr. Perez Ortiz is a board-certified
ophthalmologist. It is also undisputed that Dr. Hamburger is a
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board-certified ophthalmologist. Dr. Perez Ortiz and Perez Eye
Center split hairs by arguing that Dr. Hamburger does not practice
in the same specialty where, after he finished his ophthalmology
residency, he completed a one-year fellowship in neuro-
ophthalmology. According to Dr. Hamburger's curriculum vitae, he
is currently the director of the Kendall Eye Institute and serves as
an ophthalmology consultant to the United States Coast Guard in
Miami Beach. He has held a number of teaching positions and is
presently a clinical instructor at the Miami Dade Optician School.
In addition, Dr. Hamburger has done extensive research and
published more than twenty articles related to the field of
ophthalmology.
As a board-certified ophthalmologist, Dr. Hamburger is clearly
qualified to testify as an expert in ophthalmology. The fact that he
completed an additional fellowship in neuro-ophthalmology does
not undermine the fact that he remains a board-certified
ophthalmologist—just like Dr. Perez Ortiz. Therefore, both Dr.
Perez Ortiz and Dr. Hamburger specialize in the "same specialty" as
required by the statute. Accordingly, Dr. Hamburger's affidavit
fulfilled the presuit requirement of providing a written medical
13
expert opinion from a specialist in the "same specialty" as the
defendant healthcare provider.
Because Dr. Hamburger practices in the "same specialty" as
Dr. Perez Ortiz, his affidavit met the statutory requirement for
medical experts under section 766.202(6). Further, because this
affidavit was provided to Dr. Perez Ortiz and Perez Eye Center prior
to the expiration of the statute of limitations, Ms. Martinez complied
with the statutory presuit requirements, and it follows that the trial
court erred in dismissing Ms. Martinez's action with prejudice.
Accordingly, we reverse the trial court's order of dismissal and
remand with directions that the trial court reinstate Ms. Martinez's
medical malpractice action.
Reversed and remanded with instructions.
CASANUEVA and SILBERMAN, JJ., Concur.
Opinion subject to revision prior to official publication.
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