Supreme Court of Florida
____________
No. SC16-931
____________
TUYUANA L. MORRIS, etc.,
Petitioner,
vs.
ORLANDO S. MUNIZ, M.D., et al.,
Respondents.
September 6, 2018
PARIENTE, J.
Following the death of a twenty-year-old woman three days after giving
birth to a stillborn child, the trial court dismissed the personal representative’s
wrongful death medical malpractice action, determining that her presuit medical
expert was not “qualified” to provide a medical expert opinion under section
766.102, Florida Statutes (2011). The trial court also dismissed the action based
on its finding that the personal representative failed to comply with the informal
presuit discovery process for medical malpractice claims in violation of section
766.205, Florida Statutes (2011). Significantly, in dismissing under this basis, the
trial court made no finding that any perceived noncompliance with the discovery
process resulted in prejudice to the Defendants.1
Reviewing both bases for dismissal for an abuse of discretion and without
addressing the issue of prejudice, the First District Court of Appeal affirmed.
Morris v. Muniz, 189 So. 3d 348, 351 (Fla. 1st DCA 2016). Other district courts of
appeal have reviewed a trial court’s dismissal of a medical malpractice action for
failure to obtain a qualified presuit medical expert de novo. See, e.g., Edwards v.
Sunrise Ophthalmology Asc, LLC, 134 So. 3d 1056, 1057 (Fla. 4th DCA 2013);
Holden v. Bober, 39 So. 3d 396, 400 (Fla. 2d DCA 2010); Apostolico v. Orlando
Reg’l Health Care Sys., Inc., 871 So. 2d 283, 286 (Fla. 5th DCA 2004).
The first conflict issue in this case requires us to determine the proper
standard of review of a dismissal of a medical malpractice action based on the trial
court’s determination that the plaintiff’s presuit medical expert was not qualified to
provide a medical expert opinion. The second conflict issue requires us to consider
whether a finding of prejudice must be made before the trial court can dismiss a
1. The Defendants in this case include Orlando S. Muniz, M.D., Marianna
OB/GYN Associates, Inc., Jackson Hospital, Bay Hospital, Inc., d/b/a Gulf Coast
Medical Center (GCMC), and Stephen G. Smith, M.D.
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medical malpractice action as a sanction for a plaintiff’s failure to comply with the
informal presuit discovery process.2
To resolve these issues, we consider two guiding principles. First, the
purpose of the medical malpractice presuit investigation is to “facilitate evaluation
of the claim.” § 766.205(1), Fla. Stat. (2011). Indeed, as we have explained, the
presuit process was created to “facilitate the expedient, and preferably amicable,
resolution of medical malpractice claims.” Williams v. Oken, 62 So. 3d 1129, 1133
n.1 (Fla. 2011) (citation omitted); see § 766.201(2), Fla. Stat. (2011) (“It is the
intent of the Legislature to provide a plan for prompt resolution of medical
negligence claims.”). Second, this Court must construe the medical malpractice
presuit screening requirements “in a manner that favors access to courts.” Patry v.
Capps, 633 So. 2d 9, 13 (Fla. 1994) (citing Weinstock v. Groth, 629 So. 2d 835,
838 (Fla. 1993)).
For the reasons that follow, we hold that, where the facts regarding the
presuit expert’s qualifications are unrefuted, the proper standard of review of a trial
court’s dismissal of a medical malpractice action based on its determination that
the plaintiff’s presuit expert witness was not qualified is de novo. Additionally, we
hold that, before a medical malpractice action can be dismissed based on a trial
2. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
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court’s finding that the plaintiff or plaintiff’s counsel failed to comply with the
informal presuit discovery process for medical malpractice actions, the trial court
must find that such noncompliance prejudiced the defendant. This holding is
consistent with our precedent, which makes clear that before an action can be
dismissed for a plaintiff’s failure to comply with discovery, the trial court must
find that the plaintiff’s noncompliance prejudiced the defendant. See, e.g., Ham v.
Dunmire, 891 So. 2d 492, 499 (Fla. 2004); Kukral v. Mekras, 679 So. 2d 278, 279
(Fla. 1996). On appeal, the reviewing court should determine whether there was,
in fact, a discovery violation and whether that violation prejudiced the defendant.
To hold otherwise would not only deprive plaintiffs of their constitutional right to
access the courts but would also frustrate the Legislature’s intent in enacting the
medical malpractice statutory scheme.
In this case, because the record demonstrates that Morris’s presuit expert
was qualified, and because the record does not establish that the Defendants
suffered any prejudice for the alleged noncompliance with discovery, we conclude
that the trial court erred in dismissing Morris’s action. Accordingly, we quash the
First District’s decision and remand with instructions to reinstate Morris’s
complaint.
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FACTUAL BACKGROUND
This case arises out of a medical malpractice wrongful death action brought
by Tuyuana L. Morris, as Personal Representative of the Estate of Shunteria S.
McIntyre, the decedent. As this case was dismissed before the opportunity for
formal discovery, the facts set forth below, regarding the events that led to the
decedent’s death, are taken from the complaint and the affidavit of Morris’s presuit
expert.
On October 22, 2008, the decedent, who was pregnant, was accepted as a
patient at Marianna OB/GYN Associates, Inc., for prenatal (obstetric) care by Dr.
Orlando S. Muniz. Over the next three months, the decedent visited Dr. Muniz and
Jackson Hospital numerous times with complaints of nausea and vomiting. By
December 17, 2008, the decedent had lost twenty-six pounds since her October 22
visit; by December 29, the decedent had lost a total of thirty-six pounds.
On January 18, 2009, the decedent went to GCMC, complaining of, among
other things, mouth sores and blisters, vomiting, and dizziness. She could not eat,
walk, or use the restroom, was suffering hallucinations, and was unable to detect
movement of her unborn baby. On January 21, the decedent delivered a stillborn
baby at GCMC. After delivery, the decedent underwent a surgical procedure—
dilation and curettage. Hours after the surgery, the decedent was discharged from
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GCMC by Dr. Stephen G. Smith and advised to return for a follow-up appointment
in three weeks.
Three days later, on January 24, 2009, the decedent collapsed at home. She
was transported to a nearby hospital where she died. An autopsy revealed that the
decedent’s cause of death was “Klebsiella Pneumoniae Septicemia along with
contributing causes [of] recent Intrauterine fetal demise and Severe Acute
Diarrhea.”
Prior to filing the complaint, Morris provided the Defendants with a notice
of intent to initiate medical malpractice litigation and a verified written medical
expert opinion, as required by section 766.203(2), Florida Statutes (2011). The
expert opinion was provided by Dr. Margaret M. Thompson, who attested in a
sworn affidavit that she was a board-certified obstetrician and gynecologist. Dr.
Thompson first obtained board certification in 1984 and was thereafter recertified
in 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, and 2009. Over the
course of her thirty-year career, she delivered more than 14,000 babies, had been
“Chief of the OB-GYN department at a large medical center, Chief of Staff at a
small women’s specialty hospital, and member of hospital-wide peer review
committees.” According to her affidavit, Dr. Thompson received her Juris
Doctorate in 2007 and her Master’s in Public Affairs in 2008. She also swore that
she “was engaged in full-time patient care until March 2008.” Although Dr.
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Thompson stated in her affidavit that she was now retired due to arthritis in her
hands, she was currently licensed to practice medicine in Texas.
Upon receiving Morris’s notice of intent to initiate medical malpractice
litigation and Dr. Thompson’s affidavit, the Defendants requested additional
information related to Dr. Thompson’s qualifications, including a detailed
employment history for Dr. Thompson from January 2001 through the present, the
number of hours per week Dr. Thompson devoted to the active clinical practice of
the same or similar specialty field, and the number of babies Dr. Thompson
delivered each year from 2006 through 2009. Morris responded to the Defendants
by stating, “See Affidavit of Dr. Margaret Thompson; please also see medical
records as provided by Jackson Hospital as to treatment provided or the lack
thereof.”3
Thereafter, Morris filed this action, alleging that the Defendants were
negligent in, among other things, failing to recognize the severity of the decedent’s
complaints and failing to correctly diagnose and treat the decedent’s condition.
The Defendants moved to dismiss, arguing first, that Dr. Thompson was not a
qualified expert under section 766.102(5)(a)2, Florida Statutes (2011)—which
3. GCMC asserts in its answer brief to this Court that Morris never
responded to its request for additional information. Answer Br. of Resp’t GCMC
at 5. The record supports GCMC’s assertion.
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requires that an expert in a medical malpractice case devote professional time
during the three years immediately preceding the date of the occurrence that is the
basis for the action—because she “was enrolled in law school and graduate school
during the three years prior to the time of the subject incident.” GCMC and
Jackson Hospital further argued that Dr. Thompson was not qualified under section
766.102(6), Florida Statutes (2011)—which requires that an expert in a medical
malpractice case concerning the standard of care of medical support staff such as
nurses, nurse practitioners, and physician assistants have knowledge of the
standard of care applicable to such medical support staff. Thus, because Morris
failed to provide corroboration of reasonable grounds to initiate medical
malpractice litigation in a verified written medical expert opinion from a qualified
medical expert, the Defendants argued, dismissal was warranted under section
766.206(2), Florida Statutes (2011).
As a second basis for dismissal, the Defendants argued that Morris failed to
provide them with the additional information they requested during the informal
presuit discovery process, as required by statute. Thus, the Defendants argued,
Morris did not act in good faith during the statutory presuit period and dismissal
was warranted under section 766.205(2), Florida Statutes (2011).
The trial court agreed with the Defendants’ skepticism, finding that the
“general qualifications” in Dr. Thompson’s affidavit did “not state specifically the
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level of practice that she engaged in during the three years immediately preceding
the date of the occurrence . . . alleged in [Morris’s] complaint.” The trial court also
agreed with the Defendants that Morris refused to provide the additional
information regarding Dr. Thompson’s qualifications sought by the Defendants.
Relying on this Court’s opinion in Williams, 62 So. 3d 1129, the trial court
permitted the Defendants to engage in limited discovery directed solely to Dr.
Thompson’s qualifications.4
In compliance with the trial court’s order, the parties scheduled the
deposition of Dr. Thompson. Prior to the deposition, the Defendants requested
certain documents, including copies of “any and all publications” authored by Dr.
Thompson and copies of her law school and graduate school transcripts. Morris
objected to the Defendants’ request for production, arguing that the documents
requested “were beyond the scope” of the order, were not in Dr. Thompson’s
possession, and related to information that had already been produced.
4. Initially, the trial court also ordered Morris to pay “all of Dr. Thompson’s
fees and the attorneys’ fees and taxable costs incurred by the Defendants in
engaging in this discovery process” as a sanction for Morris’s failure to provide the
requested information during the presuit process. However, upon Morris’s motion
for rehearing, the trial court issued an order stating that “[u]pon further
consideration this Court concludes that an award of Defendants’ attorney’s fees
and taxable costs for conducting that discovery would be premature.”
Accordingly, the trial court “reserve[d] ruling” on that issue until it determined
whether Dr. Thompson was a qualified corroborating expert.
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At the deposition, Dr. Thompson testified that from 2006 through her
retirement from clinical practice in March 2008, she worked more than fifty hours
per week as an obstetrician-gynecologist (OB-GYN) in her office and at a hospital.
However, the Defendants continued questioning Dr. Thompson as to how she
could attend law school while continuing to engage in full-time patient care. Dr.
Thompson explained that if she “were working a hundred hours a week and 50
were devoted to [her] practice, that still le[ft] [her] 50 hours for law school.”
Additionally, prior to starting law school, Dr. Thompson met with the dean to
inform him that she was going to continue practicing medicine. Although the law
school did not have any special accommodations for part-time or alternative
students, the dean allowed Dr. Thompson to “choose the section that the hours of
classes would most accommodate [her] practice schedule.” Dr. Thompson
explained:
After the first year, then I had a lot more flexibility. For the first year,
I picked the section that classed, as I recall, from 8:30 to noon
Monday through Thursday. On some mornings I would have a
surgery or C-section prior to going to class at 7:00 or 7:30 in the
morning. I went directly from my classes at 12:00 and started my
practice in the office at 12:30 or 1:00, and worked till about 7:00 in
the evening. I went home, I studied for law school if I wasn’t on call
or did not have patients in labor. If I did, I stayed at the hospital and
always had my books ready to study there if I needed to be at the
hospital. On weekends—on Friday, when I did not have classes, I
usually did my surgeries and my deliveries that might be elective, like
inductions. On Saturdays and Sundays I took call and studied. . . . I
tell you, after the first year when I had more flexibility, I selected
classes that, when possible, met for longer periods, two days a week,
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like Tuesdays and Thursdays. So I grouped my classes together to
minimize the time that I had to be away from the office and the
hospital. And I took an extra semester to graduate. . . . And that’s
how I did it.
Following the deposition and an evidentiary hearing, the trial court granted
the Defendants’ motion to dismiss. Noting its previous determination that Dr.
Thompson’s affidavit did “not state specifically the level of practice she engaged
in during the three years immediately preceding the date of occurrence,” the trial
court wrote that it “once again querie[d] the feasibility” of Dr. Thompson’s
statement that she was engaged in full-time patient care until March 2008.
Moreover, the trial court found that the Defendants’ “reasonable inquiries”
as to Dr. Thompson’s qualifications “remain unanswered due to [Morris’s] counsel
[sic] restrictions to the limited discovery process.” Referencing Morris’s counsel’s
repeated objections during Dr. Thompson’s deposition and direction to Dr.
Thompson to not answer certain questions, the trial court found that the Defendants
were “thwarted” from learning certain information, such as whether Dr. Thompson
was aware of the American Bar Association (ABA) accreditation rules restricting
students to no more than twenty hours of work per week while attending law
school and whether she had applied for disability “during the same period of time
preceding this suit” due to her arthritis. Further, the court found that the actions of
Morris’s counsel “were purposeful and designed to deprive the Defendants’ [sic] of
the ability to meaningfully participate in pre-suit discovery of the medical
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negligence claims against them, and as such was not in good faith. Twenty three
months after the initial hearing,” the trial court wrote, “the record establishes scant
additional information about the specific qualifications of Dr. Thompson, nor her
ability to devote professional time in this arena for years preceding the occurrence
which is the gravamen of this suit.” Ultimately, the trial court concluded:
This Court is well aware the salient statutory provisions are not
intended to deny parties’ access to Courts on the basis of
technicalities. However, the actions as demonstrated in this cause rise
above mere technicalities. [Morris] has not complied with the
statutory pre suit requirements, or allowed reasonable discovery into
their expert’s devoted professional time 3 to 5 years immediately
preceding the occurrence in this cause. As the applicable statute of
limitations has long since expired, and [Morris] cannot remedy this
issue with another expert, dismissal is a proper remedy pursuant to
[sections] 766.205(2) and 766.206(2).
Morris appealed to the First District Court of Appeal, which, in a two-to-one
decision, concluded that the trial court “did not abuse its discretion” and affirmed.
See Morris, 189 So. 3d at 351. The majority reasoned:
The Legislature has made it clear that the special qualifications
required for presuit medical experts are essential to the Chapter 766
presuit investigation process. Likewise, courts have consistently
noted the significance of the presuit expert requirements in
determining a claim’s legitimacy. Here, the record contains ample
evidence to support the trial court’s conclusions that [Morris] failed to
offer sufficient proof of her proffered expert’s statutory qualifications,
and that [Morris’s] lack of cooperation with [the Defendants’]
attempts to verify the expert’s qualifications merited dismissal under
sections 766.205(2) and 766.206(2), Florida Statutes.
Id. at 350-51 (footnote omitted) (citations omitted).
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Judge Swanson dissented with opinion, arguing:
[Morris] complied with the statutory presuit requirements by
obtaining written corroboration from a qualified medical expert, Dr.
Margaret Thompson. Because Dr. Thompson’s affidavit clearly
established her qualifications, that should have been the end of the
matter. Instead, [the Defendants] filed a motion to dismiss [Morris’s]
complaint and used court-ordered limited discovery to go on a fishing
expedition in an attempt to impeach Dr. Thompson’s qualifications.
After [Morris’s] counsel refused to cooperate in this endeavor, the
trial court dismissed [her] wrongful death action, depriving [Morris]
of her constitutionally guaranteed access to the courts.
Id. at 351 (Swanson, J., dissenting). Judge Swanson stated that “Dr. Thompson’s
affidavit on its face clearly established that she met all of the statutory
requirements,” id. at 352, explaining:
Specifically, her affidavit and curriculum vitae detailed her education,
experience, and professional awards and plainly demonstrated that she
was a board-certified obstetrician/gynecologist (OB/GYN) for thirty
years and had been engaged in full-time patient care prior to her
retirement in March 2008, nine months before the decedent’s death.
Moreover, they demonstrated that she had served in several roles
requiring her to supervise OB/GYN nurses and other medical staff at a
hospital and to be familiar with the relevant standards of care.
Despite this, the trial court allowed [the Defendants] to depose Dr.
Thompson regarding her qualifications. During her deposition, Dr.
Thompson stated that she worked more than fifty hours per week as
an OB/GYN in 2006 through March 2008 and explained how she
managed to attend both graduate and law school during the same
period. Although the trial court questioned the “feasibility” of Dr.
Thompson’s statement that she was engaged in full-time patient care
while pursuing her master’s and law degrees, the trial court was not
permitted to make credibility determinations concerning an otherwise
unrebutted and facially sufficient affidavit. On a motion to dismiss
challenging a plaintiff’s compliance with the statutory presuit
requirements in a medical malpractice action, this court applies the de
novo standard of review and must consider all factual allegations in a
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light most favorable to the plaintiff. Because the trial court did not
apply the correct principles in determining that Dr. Thompson was not
a qualified medical expert, I would reverse the trial court’s order
dismissing [Morris’s] wrongful death action.
Id. at 352-53 (citations omitted). This review followed.
ANALYSIS
The first conflict issue in this case requires us to determine the proper
standard of review of a dismissal of a medical malpractice action based on the trial
court’s determination that the plaintiff’s presuit medical expert is not qualified to
provide a medical expert opinion. The second conflict issue requires us to revisit
whether a finding of prejudice must be made before the trial court can dismiss a
medical malpractice action as a sanction for a plaintiff’s failure to comply with the
informal presuit discovery process.
Our analysis begins with Florida’s medical malpractice statutory scheme
codified in chapter 766, Florida Statutes (2011), which requires that prospective
medical malpractice plaintiffs obtain the opinion of a medical expert to corroborate
the claim of medical malpractice before filing suit. From there, we turn to the trial
court’s first basis for dismissal under section 766.206(2), which states that a
medical malpractice claim shall be dismissed where the prospective medical
malpractice plaintiff does not comply “with the reasonable investigation
requirements” of chapter 766, including obtaining “a verified medical expert
opinion by an expert witness” as defined by statute. § 766.206(2), Fla. Stat.
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(2011). We address the conflict between the First District’s application of an
abuse of discretion standard of review to dismissal on this basis and the application
of a de novo standard by several other district courts. See, e.g., Edwards, 134 So.
3d at 1057; Holden, 39 So. 3d at 400; Apostolico, 871 So. 2d at 286. After
resolving the conflict, we then address whether the presuit expert in this case was
qualified under the statute. We then turn to the trial court’s second basis for
dismissal under section 766.205(2), Florida Statutes (2011), which states that, in a
medical malpractice action, a party’s failure to provide to the other party
reasonable access to information in order to facilitate evaluation of the claim
without formal discovery “shall be grounds for dismissal.” § 766.205(2), Fla. Stat.
(2011); see id. § 766.205(1).
I. Chapter 766
Florida’s medical malpractice statutory scheme, codified in chapter 766,
Florida Statutes, contains an elaborate presuit process for prospective medical
malpractice plaintiffs, including a presuit investigation component. See id.
§ 766.201(2). As we have explained, the presuit process was created to “facilitate
the expedient, and preferably amicable, resolution of medical malpractice claims.”
Williams, 62 So. 3d at 1133 n.1 (citation omitted); see § 766.201(2), Fla. Stat.
(2011) (“It is the intent of the Legislature to provide a plan for prompt resolution of
medical negligence claims.”). The Legislature’s intent notwithstanding, we have
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stated that the presuit process “restrict[s] plaintiffs’ ability to bring medical
malpractice claims.” Dockswell v. Bethesda Mem’l Hosp., Inc., 210 So. 3d 1201,
1205 (Fla. 2017). Therefore, the requirements of the presuit process must be
“interpreted liberally so as not to unduly restrict a Florida citizen’s constitutionally
guaranteed access to the courts.” Kukral, 679 So. 2d at 284.
Under section 766.203(2), prior to filing a medical malpractice action, a
prospective plaintiff “shall conduct an investigation to ascertain that there are
reasonable grounds to believe” that the defendant was negligent and that such
negligence caused the prospective plaintiff’s injury. § 766.203(2), Fla. Stat.
(2011). “Corroboration of reasonable grounds to initiate medical negligence
litigation shall be provided by the [prospective plaintiff’s] submission of a verified
written medical expert opinion from a medical expert as defined in s. 766.202(6).”
Id.
Section 766.202(6), Florida Statutes (2011), which governs the
qualifications of presuit expert witnesses, defines a medical expert 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.
§ 766.202(6), Fla. Stat. (2011). This section does not define “duly and regularly
engaged.” As the language above indicates, section 766.202(6) refers to and
incorporates the requirements of section 766.102, Florida Statutes (2011), which
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governs the qualifications of expert witnesses in all medical malpractice cases.
Section 766.102(5) states in pertinent 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; . . . and
2. Have devoted professional time during the 3 years
immediately preceding the date of the occurrence that is the basis for
the action to:
a. The active clinical practice of, or consulting with respect to,
the same or similar specialty . . . ;
b. Instruction of students in an accredited health professional
school or accredited residency or clinical research program in the
same specialty; or
c. A clinical research program that is affiliated with an
accredited health professional school or accredited residency or
clinical research program in the same specialty.
Id. § 766.102(5)(a). Section 766.102(5)(a)2. does not define “professional time.”5
5. Sections 766.202 and 766.102 were amended in 2003. Ch. 2003-416,
§ 48, Laws of Fla. Prior to 2003, a medical expert was defined as one who was
“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 has had special
professional training and experience or one possessed of special health care
knowledge or skill about the subject upon which he or she is called to testify or
provide an opinion.” § 766.202(5), Fla. Stat. (2002). There was no cross-reference
to section 766.102. Id. In fact, prior to 2003, the language in what is now section
766.102(5) and (6) did not exist; those, too, were added by the Legislature in 2003.
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Although chapter 766 does not define “professional time” or “duly and
regularly engaged,” we have explained the purpose of the presuit corroborating
expert opinion as follows:
The expert opinion to be supplied is not one which delineates how the
defendants were negligent. Section 766.104 refers to a written
medical opinion “that there appears to be evidence of medical
negligence.” Section 766.203(2) provides that the medical expert
opinion is for “corroboration of reasonable grounds to initiate medical
negligence litigation.” And [section] 766.205(1) specifically provides
that the medical opinion need only corroborate that “there exists
reasonable grounds for a claim of negligent injury.” Obviously, the
corroborative medical opinion adds nothing to the Plaintiffs’ notice of
their claim. It merely assures the Defendants, and the court, that a
medical expert has determined that there is justification for the
Plaintiffs’ claim, i.e., that it is not a frivolous medical malpractice
claim.
Kukral, 679 So. 2d at 282 (quoting Stebilla v. Mussallem, 595 So. 2d 136, 139
(Fla. 5th DCA 1992)). Stated another way, “[r]equiring a written expert opinion as
An analysis of the bill that amended sections 766.202 and 766.102 suggests
that the changes were made in an attempt to eliminate the occurrence of specialists
testifying against nonspecialists and general practitioners. The analysis observes:
A great deal of litigation has occurred as a result of attempting
to interpret and apply the provisions of s. 766.102(2), F.S. The terms
“medical specialty,” “specialty,” “specialist,” and “discipline or
school of practice” are not defined in the statutes. As a result, it is not
uncommon for trial court judges to allow specialists to testify against
non-specialists and general practitioners.
Fla. S. Comm. on Health, Aging, and Long-Term Care, CS for SB 2-D (2003),
Staff Analysis & Economic Impact Statement 18 (Aug. 12, 2003) (available at Fla.
Dep’t of State, Fla. State Archives, Tallahassee, Fla.).
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part of the presuit investigation” simply “assures the defendant that the claim was
preceded by a reasonable investigation.” Largie v. Gregorian, 913 So. 2d 635, 639
(Fla. 3d DCA 2005).
Consistent with the purpose of a reasonable investigation, the purpose of
requiring an expert witness at the presuit stage is to assure that the corroborating
opinion has been verified by a medical expert.6 There is no indication that the
Legislature, in enacting this presuit process originally, or through its 2003
amendments to sections 766.102 and 766.202, intended to make the qualifications
for a presuit expert more stringent than an expert testifying at trial.
Despite this lack of legislative intent, the dissent asserts that section
766.202(6) does impose an additional requirement on the presuit expert, requiring
that the presuit expert be duly and regularly engaged “at the time the written
medical expert opinion is offered.” Dissenting op. at 42 (emphasis added). In
advancing this interpretation, the dissent acknowledges that it has not been argued
by the parties, nor was it considered by the trial court. See dissenting op. at 46.
6. Medical malpractice is the only area of law where the Legislature has
imposed strict requirements on the testimony of experts. All other areas are
governed by section 90.702, Florida Statutes (2018), entitled “Testimony by
experts.” Thus, in creating its own requirements for expert testimony, the
Legislature has severely limited the ability of trial judges to determine whether an
expert is qualified. See Simmons v. State, 934 So. 2d 1100, 1117 (Fla. 2006) (“A
trial judge has the discretion to determine if a witness’s qualifications render him
or her an expert, and this determination will not be overturned absent clear error.”).
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Nevertheless, the dissent asserts that the statutory language “plainly” requires this
construction.
We emphasize, however, as the dissent acknowledges, that Florida courts
have expressly rejected this construction. See Baptist Med. Ctr. of Beaches, Inc. v.
Rhodin, 40 So. 3d 112, 118 (Fla. 2010); Fort Walton Beach Med. Ctr., Inc. v.
Dingler, 697 So. 2d 575 (Fla. 1st DCA 1997). Indeed, in 1997, the First District
expressly rejected the argument that the “duly and regularly engaged” language in
section 766.202 means “at the time the corroborating opinion and affidavit are
signed.” Dingler, 697 So. 2d at 580. The First District explained that it was
“logical that the legislature intended the more specific time period in” section
766.102 “to define when the proposed expert must have been ‘engaged in the
practice’ ” under section 766.202. Id. That reasoning was then appropriately
adopted in Rhodin to reject the defendant’s argument that the plaintiff’s presuit
expert was not qualified. 40 So. 3d at 118.
Additionally, while the dissent argues that the 2003 amendments to section
766.202(6) support its interpretation, the “duly and regularly engaged” language
has remained unchanged since its first appearance in the statute in 1988. See
§ 766.202, Fla. Stat. (Supp. 1988). This is especially important because the
Legislature “ ‘is presumed to know the judicial constructions of a law when
enacting a new version of that law’ and “the legislature is presumed to have
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adopted prior judicial constructions of a law unless a contrary intention is
expressed in the new version.’ ” Jones v. ETS of New Orleans, Inc., 793 So. 2d
912, 917 (Fla. 2001) (quoting City of Hollywood v. Lombardi, 770 So. 2d 1196,
1202 (Fla. 2000)). Thus, in this case, the Legislature is presumed to be aware of
the First District’s interpretation of section 766.202 in 1997 and made no changes
to it.
Further, nowhere in section 766.202(6) does it state that the expert must be
duly and regularly engaged at the time the opinion is offered, when the role of the
medical expert is to provide an opinion regarding the prevailing professional
standard of care, or the professional standard of care existing at the time of the
occurrence that is the basis for action. See §§ 766.102(1); 766.203(2). We cannot
agree with a construction that not only runs counter to the purpose of the presuit
process, which is to facilitate the resolution of medical malpractice claims, but also
has the effect of infringing on the constitutional right to access the courts.
Finally, with respect to the ability of a medical expert to provide an opinion
on the negligence of nurses and other support staff, a separate subsection in section
766.102 covers expert testimony regarding the standard of care applicable to
nurses and other medical support staff. See § 766.102(6). Section 766.102(6)
states that a person “may give expert testimony in a medical negligence action with
respect to the standard of care of such medical support staff” if he or she is
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qualified under section 766.102(5) and has “knowledge of the applicable standard
of care for nurses, nurse practitioners . . . or other medical support staff.” Id.
§ 766.102(6). This section does not specify how a person must demonstrate his or
her knowledge of the applicable standard of care for medical support staff. See id.
Having set forth the relevant statutory provisions, we now turn to address the
first basis for dismissal in this case.
II. Dismissal for Failure to Obtain a “Qualified” Expert Witness
Under section 766.206(2), if the court finds that the plaintiff’s notice of
intent to initiate medical malpractice litigation “does not comply with the
reasonable investigation requirements of ss. 766.201-766.212, including a review
of the claim and a verified written medical expert opinion by an expert witness as
defined in s. 766.202 . . . the court shall dismiss the claim.” § 766.206(2), Fla.
Stat. (2011). This provision, like all provisions governing the presuit screening
process for medical malpractice claims, must be construed “in a manner that favors
access to courts.” Patry, 633 So. 2d at 13 (citing Weinstock, 629 So. 2d at 838).
A. The Conflict
Morris argues that the proper standard of review of the dismissal of a
medical malpractice action based on the trial court’s determination that the
plaintiff’s presuit medical expert is not qualified is de novo, as other district courts
have concluded, because the determination as to whether a presuit expert meets the
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statutory qualifications is a legal one. See, e.g., Edwards, 134 So. 3d at 1057;
Holden, 39 So. 3d at 400; Apostolico, 871 So. 2d at 286. Rejecting the First
District’s application of an abuse of discretion standard, the Defendants counter
that, because the trial court held an evidentiary hearing on the issue, the correct
standard of appellate review is whether the trial court’s ruling is supported by
competent, substantial evidence. For the reasons that follow, we conclude that,
where 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. Even if the proper review standard were competent,
substantial evidence, we would conclude that nothing in the record supports the
trial court’s conclusion that Morris’s expert was not qualified.
In Holden, the plaintiff’s medical malpractice action was dismissed after the
trial court determined that the plaintiff failed to corroborate that reasonable
grounds existed for the claim because his presuit medical expert’s affidavit did not
establish that he was qualified to provide a medical expert opinion. 39 So. 3d at
398-99. The Second District Court of Appeal first correctly observed that “the
medical malpractice statutory scheme must be interpreted liberally so as not to
unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts.”
Id. at 400 (quoting Kukral, 679 So. 2d at 284). The Second District went on to
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determine that “[i]n order to adhere to the policy enunciated behind the presuit
notice requirements,” courts “must review the sufficiency of [the plaintiff’s
expert’s] qualifications and his corroborating affidavit to determine if it complies
with the statutory requirements of chapter 766.” Id. Finally, the Second District
stated that because the case involved “the trial court’s disposition of a motion to
dismiss,” the standard of review was de novo. Id.; see also Apostolico, 871 So. 2d
at 286 (“We review a trial court’s disposition of a motion to dismiss de novo.”).
We agree with the Second District’s analysis. Determining whether a
presuit expert witness is qualified under the statute involves reviewing the expert’s
stated qualifications and comparing those with what is required under the statute.
The trial court is in no better position than the appellate court to conduct this
analysis. This conclusion is also consistent with the well-established principle that
pure questions of law are reviewed de novo. See Bosem v. Musa Holdings, Inc., 46
So. 3d 42, 44 (Fla. 2010).
We are unpersuaded by the Defendants’ position that merely because the
trial court holds an evidentiary hearing on the issue of the presuit expert’s
qualifications, the appellate standard of review can only be competent, substantial
evidence. As the Second District explained in Oliveros v. Adventist Health
Systems/Sunbelt, Inc., 45 So. 3d 873 (Fla. 2d DCA 2010), where “the facts
concerning [the expert’s] background and experience are unrefuted, the question of
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his [or her] qualifications as an expert turns on the application of the relevant
statutes, which is an issue of law,” reviewed de novo. Id. at 876; see also Aills v.
Boemi, 29 So. 3d 1105, 1108 (Fla. 2010) (stating that questions of law “arising
from undisputed facts” are reviewed de novo); Kirton v. Fields, 997 So. 2d 349,
352 (Fla. 2008). Stated another way, where the facts regarding the presuit expert’s
qualifications are unrefuted, the trial court has not resolved any factual disputes
that are entitled to deference on appeal. We thus hold that, where the facts
regarding the presuit expert’s qualifications are unrefuted, the proper standard of
appellate review of the dismissal of a medical malpractice action based on the trial
court’s conclusion that the plaintiff’s presuit medical expert is not qualified is de
novo.
We recognize that there may be cases where the trial court must reconcile
factual disputes regarding a presuit expert witness’s qualifications. Indeed, section
766.203(4), Florida Statutes (2011), states that the medical expert opinion
corroborating a prospective plaintiff’s claim of medical malpractice is “subject to
discovery.” Id. That section goes on to state that the expert’s opinion “shall
specify whether any previous opinion by the same medical expert has been
disqualified and if so the name of the court and the case number in which the
ruling was issued.” Id. Thus, using this provision as an example, there could be a
case where the presuit expert swears that he or she has not been previously
- 25 -
disqualified and the defendant presents evidence to dispute that. The trial court’s
finding on that disputed fact would be entitled to deference on appeal.
However, we reiterate that a trial court’s ruling on whether an expert’s stated
qualifications satisfy the requirements of the statute is reviewed de novo, as such
an inquiry requires simply construing the statute’s requirements and determining
whether the expert’s qualifications align, which the appellate court is on equal
footing with the trial court to do. We now turn to this case.
B. This Case
In this case, Morris’s expert, Dr. Thompson, stated in her sworn affidavit
that she was a board-certified obstetrician, who, over her thirty-year career had
been chief of the OB-GYN department at a large medical center, chief of staff at a
small women’s specialty hospital, and member of hospital-wide peer review
committees. Her affidavit also stated that she was engaged in full-time patient care
until March 2008, which was several months before the incidents alleged in the
complaint began, she was currently licensed to practice medicine, and she was
recertified as a board-certified obstetrician in 2007 and 2009.
The Defendants presented no evidence to suggest that Dr. Thompson’s
claims were false. Instead, they merely challenged the sufficiency of Dr.
Thompson’s stated qualifications and her ability to devote “professional time to” or
be “regularly engaged” in the practice of medicine while in law school.
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Questioning the veracity of an expert’s sworn statements is not the same as
presenting evidence that suggests that the claims in the affidavit are false.
Nevertheless, the trial court found that Dr. Thompson was not a qualified expert
under section 766.102(5)(a)2. or section 766.102(6).7 We conclude that this was
error, as Dr. Thompson’s affidavit clearly established that she met the statutory
requirements, and the Defendants presented no evidence to refute her sworn
statements.
In concluding that Dr. Thompson was not a qualified expert, the trial court
and the dissent read far more into the statutes than what they clearly and
unambiguously require. The trial court found that Dr. Thompson failed to
establish that she was qualified because her affidavit contained only “general
qualifications” and did not “state specifically” the level of practice she was
engaged in during the relevant three-year period, but the statutes do not demand
7. The trial court also found that Dr. Thompson was not qualified under
section 766.102(9), which states that in an action for damages involving a claim
against a physician licensed under certain chapters “providing emergency medical
services in a hospital emergency department, the court shall admit expert medical
testimony only from physicians . . . who have had substantial professional
experience within the preceding 5 years while assigned to provide emergency
medical services in a hospital emergency department.” However, Morris has made
clear that Dr. Thompson never intended to assert that she was qualified to give
such testimony, stating in her response to the Defendants’ motion to dismiss in the
trial court that she “did not bring a claim against ER physicians regarding any ER
physicians’ treatment and care. Thus such argument is moot.” Morris continues to
hold that position in this Court.
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such specificity. As this Court has explained, we are “not at liberty to construe”
terms “so as to deprive plaintiffs of their causes of action.” Silva v. Sw. Fla. Blood
Bank, 601 So. 2d 1184, 1189 (Fla. 1992); see Weinstock, 629 So. 2d at 838.
Because Dr. Thompson’s affidavit clearly complies with the statutory
requirements, the trial court erred in finding that Dr. Thompson was not qualified.
§§ 766.202(6); 766.102(5)(a)2., Fla. Stat. (2011).
As to the trial court’s finding that Dr. Thompson’s affidavit failed to
establish that she was qualified to provide a medical expert opinion regarding the
standard of care for medical support staff under section 766.102(6), we conclude
that the trial court again misconstrued the statute’s requirements. As stated
previously, Dr. Thompson swore in her affidavit that she was “Chief of the OB-
GYN department at a large medical center, Chief of Staff at a small women’s
specialty hospital, and member of hospital-wide peer review committees.” We fail
to understand how Dr. Thompson could have overseen, managed, and reviewed
medical support staff in those roles without knowledge of the standard of care
applicable to that support staff.
Even if Dr. Thompson’s affidavit was insufficient to demonstrate her
qualifications under the statutes, Dr. Thompson clearly demonstrated at her
deposition that she was qualified, as she testified that she employed a nurse
practitioner and was familiar with Austin Medical Center’s policies and procedures
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for nurses, having used them on a regular basis and “probably contributed to
writing some of them.” Additionally, Dr. Thompson unequivocally testified that
she was qualified to render an opinion as to the standard of care applicable to
medical support staff treating a patient that was in her specialty. There is simply
no evidence in the record to refute Dr. Thompson’s sworn statements. Thus,
because Dr. Thompson clearly met the statutory requirements, Morris’s medical
malpractice action should not have been dismissed under section 766.206(2).
C. Conclusion as to the Expert’s Qualifications
At the time the presuit medical expert in this case executed her affidavit
corroborating Morris’s claims of medical malpractice, she had enjoyed a thirty-
year career as an OB-GYN, graduating from medical school in 1978 and becoming
board-certified in obstetrics and gynecology in 1984. Her long career included
serving as chief of the OB-GYN department at a large medical center and chief of
staff at a small women’s hospital. In short, Dr. Thompson is just the type of expert
that the Legislature would consider is qualified. Accordingly, because Dr.
Thompson was clearly qualified under the statutory requirements, under any
standard of review, we conclude that the trial court erred in dismissing Morris’s
action under section 766.206(2), Florida Statutes (2011). We now turn to address
the trial court’s second basis for dismissal in this case.
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III. Dismissal for Failure to Allow Access to Information During the Presuit
Process Without Formal Discovery
The trial court also found that dismissal was proper under section
766.205(2), Florida Statutes (2011), because Morris failed to comply with the
requirements of the informal presuit discovery process. First, Morris argues that
additional discovery into Dr. Thompson’s qualifications should not have been
permitted because Dr. Thompson’s affidavit satisfied the statutory requirements.
Even if the additional discovery was proper, Morris argues that she complied.
Notwithstanding, Morris argues that it was improper to dismiss the action in the
absence of any prejudice to the Defendants. The parties agree that the proper
standard of review of a dismissal for failure to comply with discovery is abuse of
discretion. See, e.g., Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.
2d 1271, 1273 (Fla. 1990); Robinson v. Scott, 974 So. 2d 1090, 1092 (Fla. 3d DCA
2007).
A. Section 766.205, Florida Statutes (2011)
Section 766.205(1) requires that, after the completion of the presuit
investigation, each party to a medical malpractice action “shall provide to the other
party reasonable access to information within its possession or control in order to
facilitate evaluation of the claim.” § 766.205(1), Fla. Stat. (2011). Section
766.205(2) states that “[s]uch access shall be provided without formal discovery
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. . . and failure to so provide shall be grounds for dismissal of any applicable claim
or defense ultimately asserted.” Id. § 766.205(2).
B. Scope of Permissible Discovery of a Presuit Expert’s Qualifications
Morris first argues that additional discovery should not have been permitted
because Dr. Thompson’s affidavit satisfied the statutory requirements. As stated
previously, a prospective plaintiff must corroborate their medical malpractice
claim with a “verified written medical expert opinion.” § 766.203(2), Fla. Stat.
(2011). Subsection (4) states that these medical expert opinions “are subject to
discovery” and “shall specify whether any previous opinion by the same medical
expert has been disqualified and if so the name of the court and the case number in
which the ruling was issued.” Id. § 766.203(4). The statute does not specify the
scope of this discovery.
While the statute does not specify the scope of discovery into a presuit
expert’s qualifications, certainly, if the defendant presents evidence that the
expert’s stated qualifications are false, presuit discovery on the discrete issue
should be allowed. On the other hand, if the affidavit suggests a technical
deficiency in the affidavit, there would be no reason to allow open-ended
discovery.
We have explained that, where a plaintiff’s presuit expert’s affidavit fails to
establish that he or she is qualified under the statute, the trial court should hold an
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evidentiary hearing to determine whether the expert is qualified. Williams, 62 So.
3d at 1137. In Williams, the defendant moved to dismiss the medical malpractice
complaint, arguing that the plaintiff’s expert’s affidavit did not establish that he
was an expert “in the field of cardiology,” and, thus, the plaintiff “failed to attach a
corroborating affidavit from a qualified medical expert.” Id. at 1131. Concluding
that the First District improperly granted certiorari review of the trial court’s denial
of the defendant’s motion to dismiss, we explained that the First District should
have “dismissed the petition and remanded the case to the trial court for an
evidentiary hearing on whether [the expert] was qualified.” Id. at 1137; see also
Bery v. Fahel, 88 So. 3d 236, 237-38 (Fla. 3d DCA 2011) (remanding for an
evidentiary hearing on the presuit expert’s qualifications where the presuit expert
attempted to withdraw his affidavit “because he felt he was not qualified to act as
an expert witness”); Holden, 39 So. 3d at 402-03 (reversing a dismissal order and
remanding for an evidentiary hearing on the presuit expert’s qualifications where
the expert’s affidavit did not on its face establish that his qualifications could be
considered a similar specialty to the doctor).
We conclude that neither section 766.203(4) nor our opinion in Williams
allows a deposition of a presuit expert where, as in this case, the presuit expert’s
affidavit clearly establishes that the expert is qualified under the statute and the
defendant fails to present any evidence to refute those qualifications. Indeed,
- 32 -
nothing in the medical malpractice statutory scheme indicates that the Legislature
intended the presuit process to include a deposition of a presuit expert regarding
her qualifications, where the expert demonstrates in a sworn affidavit that he or she
meets the statutory qualifications.
We thus agree with Judge Swanson that, where a presuit expert clearly
demonstrates that he or she is qualified in a sworn affidavit, and the defendant has
not presented any evidence to refute those qualifications, medical malpractice
defendants should not be permitted “to go on a fishing expedition in an attempt to
impeach” those qualifications. Morris, 189 So. 3d at 351 (Swanson, J., dissenting).
This conclusion is consistent with our previous pronouncements that, when
reviewing matters involving chapter 766, this Court must construe the provisions
“in a manner that favors access to courts.” Patry, 633 So. 2d at 13; see Kukral,
679 So. 2d at 284; Weinstock, 629 So. 2d at 838.
We now turn to the second conflict issue in this case regarding prejudice.
C. The Second Conflict Issue
Morris next argues that the First District’s decision, which recognizes that
prejudice to the other party should be considered when determining the proper
sanction for a party’s failure to comply with discovery but fails to actually address
the issue of prejudice, conflicts with this Court’s opinion in Kukral, 679 So. 2d at
284, and the Fourth District Court of Appeal’s decision in Vincent v. Kaufman, 855
- 33 -
So. 2d 1153, 1156-57 (Fla. 4th DCA 2003), both of which held that dismissal in
the absence of any prejudice to the Defendants was improper. For the reasons that
follow, we conclude, as we have many times before, that dismissing an action for a
plaintiff’s failure to comply with discovery, where the trial court fails to make a
finding of prejudice to the defendant, constitutes an abuse of discretion.
While section 766.205(2) permits dismissal for a plaintiff’s failure to comply
with discovery, this Court has repeatedly held that it is improper to dismiss an
action for a plaintiff’s failure to comply with discovery where the defendant suffers
no prejudice. See, e.g., Ham, 891 So. 2d at 499; Kukral, 679 So. 2d at 279; Patry,
633 So. 2d at 10. Indeed, in Patry, we quashed the district court’s affirmance of
the dismissal of a medical malpractice action for lack of strict compliance with the
presuit requirements where the defendant suffered no prejudice. 633 So. 2d at 10.
We explained that it could not be seriously argued that the goal of the medical
malpractice statutory scheme—“to facilitate the orderly and prompt conduct of the
screening and settlement process”—was not accomplished where the defendant
received notice “that result[ed] in no prejudice.” Id. at 12. Likewise, in Kukral,
this Court quashed the district court’s affirmance of the dismissal of a medical
malpractice action, reasoning that “any potential prejudice to the defendants . . .
had been eliminated.” 679 So. 2d at 284. We explained that this conclusion was
“consistent with our prior holdings favoring access to the courts, while still
- 34 -
carrying out the legislative policy of requiring the parties to engage in meaningful
presuit investigation, discovery and negotiations.” Id. More recently, in Ham, we
stated that “dismissal is far too extreme as a sanction in those cases where
discovery violations have absolutely no prejudice to the opposing party.” 891 So.
2d at 499.
Particularly where the two-year statute of limitations for medical malpractice
actions has expired and the defendant has suffered no prejudice, courts have
consistently recognized that dismissal is a drastic sanction. See, e.g., Vincent, 855
So. 2d at 1156-57 (concluding that the dismissal of the plaintiff’s medical
malpractice action, “the effect of which permanently barred her claim since the
statute of limitations had since run, was not warranted where there was no
prejudice to the defendant doctor”); Kukral, 679 So. 2d at 279 (“The effect of the
order of dismissal was to permanently bar the plaintiffs’ claim since the statutory
limitations period for filing claims had then expired.”); Carr v. Dean Steel Bldgs.,
Inc., 619 So. 2d 392, 394 (Fla. 1st DCA 1993) (“[D]ismissal is a drastic remedy
which should be used only in extreme situations.”).
Thus, consistent with our precedent, we hold that the trial court must make a
finding of prejudice to the defendant before a medical malpractice action can be
dismissed under section 766.205(2) for a plaintiff’s failure to comply with the
informal presuit discovery process. As we have repeatedly explained, “the purpose
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of the chapter 766 presuit requirements is to alleviate the high cost of medical
negligence litigation through early determination and prompt resolution of claims,
not to deny access to the courts to plaintiffs.” Weinstock, 629 So. 2d at 838
(emphasis added).
Moreover, “[b]ecause dismissal is the ultimate sanction in the adversarial
system,” particularly in the medical malpractice realm after the statute of
limitations has expired, we remind trial courts that “it should be reserved for those
aggravating circumstances in which a lesser sanction would fail to achieve a just
result.” Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993). “[I]n those situations
where the attorney, and not the client, is responsible for the error,” courts should
consider the factors set forth in Kozel in determining whether dismissal is
warranted. Id.
D. This Case
Here, the trial court found that, during Dr. Thompson’s deposition, Morris’s
counsel “repeatedly objected to questions,” “refused to allow” Dr. Thompson to
answer certain questions, and “thwarted” the Defendants from learning information
such as whether Dr. Thompson was aware of the ABA accreditation rules
restricting students to working no more than twenty hours a week while attending
law school and whether Dr. Thompson applied for disability during the same
period of time preceding the suit due to her arthritis. The trial court further found
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that these actions “were purposeful and designed to deprive the Defendants’ [sic]
of the ability to meaningfully participate in pre-suit discovery of the medical
negligence claims against them, and as such was not in good faith.” Without
making any finding as to whether Morris’s actions prejudiced the Defendants, the
trial court concluded that dismissal was warranted under section 766.205(2).
On review, the First District concluded that “the record contain[ed] ample
evidence” to support the trial court’s conclusion that Morris’s “lack of
cooperation” with the Defendants’ attempts to verify Dr. Thompson’s
qualifications warranted dismissal under section 766.205(2). Morris, 189 So. 3d at
351. In reaching this conclusion, the First District correctly stated that “[a] court’s
determination of the sanction to impose” for a party’s failure to comply with
discovery “depends both on the circumstances of the case and what, if any,
prejudice the opposing party has suffered.” Id. at 350. The First District did not
identify any prejudice the Defendants suffered as a result of Morris putting a halt
to what clearly was, in Judge Swanson’s words, a “fishing expedition.” Id. at 351
(Swanson, J., dissenting).
We first conclude that, because Dr. Thompson’s affidavit clearly
demonstrated that she was qualified, and the Defendants did not present any
evidence to refute those qualifications, the trial court should not have permitted a
deposition of Dr. Thompson. Dr. Thompson had been an OB-GYN for over three
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decades. While the Defendants attempted to challenge the veracity of Dr.
Thompson’s assertions that she was practicing in her field of medicine while
attending law school, an issue that would have been impeachment on a collateral
matter, they presented no evidence demonstrating that these assertions were false.
Additionally, we conclude that the trial court abused its discretion in
dismissing Morris’s medical malpractice action under section 766.205(2) without
finding that Morris’s actions prejudiced the Defendants. Indeed, had the trial court
or the First District considered the question of prejudice, they would have been
hard-pressed to identify any. Although the Defendants attempt to argue that they
were prejudiced because Morris’s actions delayed the resolution of the claim, delay
is not the type of prejudice contemplated by our case law. It was not as if Dr.
Thompson’s opinion changed from the time that her opinion was filed. Thus, the
Defendants in this case had all information they needed in order to “facilitate
evaluation of the claim.” § 766.205(1).
IV. Conclusion
It has been observed that “there is an increasingly disturbing trend of
prospective defendants attempting to use the [chapter 766] statutory requirements
as a sword against plaintiffs.” Michael v. Med. Staffing Network, Inc., 947 So. 2d
614, 619 (Fla. 3d DCA 2007). Unfortunately, it appears that this was such a case.
Despite the sworn affidavit of Morris’s presuit medical expert—which stated that
- 38 -
she had been a board-certified obstetrician and gynecologist for more than twenty
years and served as chief of the OB-GYN department at a large medical center and
chief of staff at a small women’s specialty hospital—the Defendants in this case
used the medical malpractice statutory requirements as a sword.
As a result of the Defendants’ conduct, and the trial court’s and First
District’s exceedingly restrictive reading of chapter 766, Morris has thus far been
deprived of her right to access the courts. To uphold the result in this case would
permanently deprive Morris of her right to such access to pursue her medical
malpractice claim for the wrongful death of a twenty-year old woman because the
statute of limitations has long since run. Such a result not only frustrates Morris’s
constitutional right to access to the courts, but also does nothing to advance the
Legislature’s purpose in creating the medical malpractice presuit statutory scheme.
Because Morris’s presuit medical expert clearly met the statutory
qualifications for medical experts, and because Morris complied with the necessary
discovery, the trial court erred in dismissing Morris’s action under sections
766.205(2) and 766.206(2), Florida Statutes (2011). Accordingly, we quash the
First District’s decision and remand with directions that the trial court reinstate
Morris’s medical malpractice action arising out of a death that occurred over nine
years ago.
It is so ordered.
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LEWIS, QUINCE, and LABARGA, JJ., concur.
CANADY, C.J., dissents with an opinion, in which POLSTON and LAWSON, JJ.,
concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
CANADY, C.J., dissenting.
I disagree with the majority’s decision to quash the First District’s decision
in Morris v. Muniz, 189 So. 3d 348 (Fla. 1st DCA 2016), and to reinstate Morris’s
medical malpractice complaint against the various defendants in this case. I would
instead approve the result reached by the First District. Under a proper reading of
the statutes governing the medical malpractice presuit process, Morris’s purported
presuit “medical expert”—Dr. Thompson—as a matter of law did not satisfy the
statutory requirements for such experts. Accordingly, I dissent.
This case is readily resolved on the ground that Dr. Thompson failed to meet
the threshold statutory requirement of being “duly and regularly engaged” in the
practice of the profession at the time the presuit affidavit was executed in 2011.
§ 766.202(6), Fla. Stat. (2011). The record reveals that at the time Dr. Thompson
executed the affidavit, she had been retired from her OB/GYN practice for more
than three years and by all indications had transitioned (or was transitioning) into a
new career. The fact that Dr. Thompson had a lengthy career as an OB/GYN
before retiring in March 2008 does not defeat the plain language of the relevant
statutes.
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After examining the statutory requirements for a presuit “medical expert”
and explaining why Dr. Thompson does not satisfy those requirements, I briefly
address the problematic nature of Dr. Thompson’s affidavit and the ensuing lack of
compliance by the plaintiff and plaintiff’s counsel regarding the trial court’s order
authorizing limited discovery into Dr. Thompson’s qualifications. Given this
record, I am troubled by the majority’s decision to view this case through the lens
of an “unrefuted” affidavit. The true extent of Dr. Thompson’s activities before
March 2008 are unknown. Thus, even assuming that the “duly and regularly
engaged” requirement applies to some period of time prior to March 2008, I would
approve the First District’s decision to affirm the dismissal of the lawsuit.
I. DR. THOMPSON WAS NOT A “MEDICAL EXPERT” FOR PURPOSES
OF CHAPTER 766
Prior to filing a claim for medical malpractice, a prospective plaintiff is
required to “conduct an investigation to ascertain that there are reasonable grounds
to believe that” the named defendant was negligent and that the negligence caused
the plaintiff’s injury. § 766.203(2), Fla. Stat. (2011). As part of the mandatory
presuit process, a prospective plaintiff must obtain “a verified written medical
expert opinion from a medical expert as defined in s. 766.202(6).” Id. The
purpose of the expert opinion is to “corroborate reasonable grounds to support the
claim of medical negligence.” Id. Prior to initiating litigation, the prospective
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plaintiff must first provide the defendant with a “notice of intent to initiate
litigation,” along with the medical expert’s opinion. Id.
The term “medical expert” is defined in section 766.202(6) 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.” (Emphasis added.)
There is nothing backward-looking about the present-tense requirement that the
person be “duly and regularly engaged” in the practice of the profession. In other
words, the person must be duly and regularly engaged in the practice at the time
the written medical expert opinion is offered, as opposed to having been duly and
regularly engaged in the practice during some earlier period. But this “duly and
regularly engaged” requirement, of course, is not the only statutory requirement for
being a “medical expert.” Section 766.202(6) expressly provides that the person
must also hold a certain professional degree and “meet[] the requirements of an
expert witness as set forth in s. 766.102.”
Section 766.102 sets forth requirements for testifying experts in medical
malpractice actions. In order to be an expert witness permitted to testify
concerning the prevailing professional standard of care, the witness must, at a
minimum, be a licensed health care provider. § 766.102(5), Fla. Stat. (2011). For
giving expert testimony against a specialist, the expert witness must meet certain
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additional requirements, including that the witness “[s]pecialize in the same
specialty as the health care provider against whom . . . the testimony is offered.”
§ 766.102(5)(a)1., Fla. Stat. An expert witness offering testimony against a
specialist must also meet a specific, backward-looking requirement. Namely, the
expert witness must:
2. Have devoted professional time during the 3 years
immediately preceding the date of the occurrence that is the basis for
the action to:
a. The active clinical practice of, or consulting with respect to,
the same or 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;
b. Instruction of students in an accredited health professional
school or accredited residency or clinical research program in the
same or similar specialty; or
c. A clinical research program that is affiliated with an
accredited health professional school or accredited residency or
clinical research program in the same or similar specialty.
§ 766.102(5)(a)2., Fla. Stat. (emphasis added).
When reviewing the distinct requirements of sections 766.202(6) and
766.102 together, it is clear that the Legislature focused on both the ongoing and
previous experience in practice of a presuit “medical expert.” The statutory
requirements are “clear and unambiguous” and should be given their “plain and
obvious meaning.” A.R. Douglass, Inc., v. McRainey, 137 So. 157, 159 (Fla.
1931). Thus, in this case involving a medical specialty, Dr. Thompson at the time
she executed the affidavit was required to: (1) be duly and regularly engaged in the
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practice of the profession; and (2) “[h]ave devoted professional time during the 3
years immediately preceding the” alleged malpractice to one of the three categories
of professional activities listed in section 766.102(5)(a)2.—under the facts
presented here, to “[t]he active clinical practice of” OB/GYN.8
Nothing in Dr. Thompson’s affidavit or in the rest of the record supports the
conclusion that she was “duly and regularly engaged” in the practice of the
profession at the time she executed the affidavit in 2011. Dr. Thompson’s affidavit
on its face paints the picture of someone who retired in March 2008 from a lengthy
private medical practice and who had transitioned (or was transitioning) into a new
career. That conclusion is supported by the rest of the record, including the
following interrogatory response from the plaintiff regarding Dr. Thompson’s
profession or occupation: “Retired OB/GYN, March 1, 2008, before law practice.”
Although Dr. Thompson maintained an active license to practice medicine in the
State of Texas at the time she executed the affidavit, that license merely authorized
her to engage in the practice of the profession. Indeed, having an active license is
itself a separate statutory requirement for a “medical expert.” § 766.102(5), Fla.
8. The majority concludes that “[t]here is no indication that the Legislature
. . . intended to make the qualifications for a presuit expert more stringent than an
expert testifying at trial.” Majority op. at 19. But that conclusion ignores the text
of section 766.202(6), which, by definition, provides that a presuit “medical
expert” must meet certain requirements in addition to those for an expert testifying
at trial. See § 766.202(6), Fla. Stat.
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Stat. And although Dr. Thompson mentioned during her deposition in October
2013 that she served as an expert for the Texas Board of Medicine after her
retirement from private practice, serving as an expert can hardly be said to be
“engag[ing] in the practice of” the profession. § 766.202(6), Fla. Stat.; see Winson
v. Norman, 658 So. 2d 625, 626 (Fla. 3d DCA 1995) (concluding that the alleged
presuit expert who “confined his recent professional activities to acting as a
‘litigation expert’ ” did not satisfy the requirement in chapter 766 of being duly
and regularly engaged in the practice of the profession). In any event, Dr.
Thompson described her work for the Texas Board of Medicine as “sporadic,”
which is quite the opposite of “regularly.” In short, Dr. Thompson was not a
qualified “medical expert” for purposes of chapter 766. As a result, her affidavit
was insufficient to “corroborate reasonable grounds to support the claim of medical
negligence.” § 766.203(2), Fla. Stat.9
9. The majority dismisses the notion that Dr. Thompson was required to “be
duly and regularly engaged at the time the opinion is offered” in part on the ground
that “the role of the medical expert is to provide an opinion regarding the
prevailing professional standard of care, or the professional standard of care
existing at the time of the occurrence that is the basis for action.” Majority op. at
21 (emphasis added). But even assuming that Dr. Thompson was only required to
be “duly and regularly engaged” in the practice “at the time of the occurrence,” she
still would not meet the statutory requirement. As the majority recognizes, Dr.
Thompson “retire[d] from clinical practice in March 2008,” majority op. at 10,
“which was several months before the incidents alleged in the complaint began,”
majority op. at 26.
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The majority’s repeated assertions that Dr. Thompson “clearly met” the
statutory requirements, see majority op. at 29, 39, cannot be reconciled with the
plain statutory language. And no case law supports allowing a medical malpractice
lawsuit to proceed where, as is the case here, the plaintiff fails to provide the
requisite corroborating affidavit prior to the expiration of the limitations period for
filing suit. See Kukral v. Mekras, 679 So. 2d 278, 285 (Fla. 1996) (“We hold that
plaintiffs’ compliance with the presuit investigation requirements of chapter 766
prior to filing suit and within the statutory limitations period constituted sufficient
compliance with the presuit notice and investigation requirements of the statute.”).
The trial court and the parties in this case all appear to have conflated the
present-tense “duly and regularly engaged” requirement of section 766.202(6) with
the separate requirement in section 766.102(5)(a)2. regarding whether the person
devoted professional time to the active clinical practice of the specialty during the
three years immediately preceding the alleged malpractice. Indeed, they all
seemingly understood the sole relevant inquiry to be whether Dr. Thompson was
engaged in the full-time, active practice of medicine during that three-year period
(either at some point in time or throughout that period).
This exclusive focus on a lookback period is likely attributable to the First
District’s decisions in Fort Walton Beach Medical Center, Inc. v. Dingler, 697 So.
2d 575 (Fla. 1st DCA 1997), and Baptist Medical Center of Beaches, Inc. v.
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Rhodin, 40 So. 3d 112 (Fla. 1st DCA 2010). The reasoning of these cases on this
point should be rejected.
In Dingler, the First District examined the definition of “medical expert”
found in section 766.202(5), Florida Statutes (1991), and specifically rejected the
defendants’ argument that a presuit “medical expert” was required to be duly and
regularly engaged in the practice of the profession “at the time the corroborating
opinion and affidavit are signed.” Dingler, 697 So. 2d at 580. Dingler erroneously
conflated sections 766.102 and 766.202 by concluding that the present-tense “duly
and regularly engaged” requirement in section 766.202 was satisfied “so long as
the expert’s ‘active involvement’ in the practice occurred” within the lookback
period “as provided by” section 766.102(2). Id.
More recently in Rhodin, the First District cited Dingler with approval in
rejecting the defendant’s challenge to the affidavit provided by the presuit
“medical expert,” Dr. Byrne. Rhodin, 40 So. 3d at 118. And in rejecting the
defendant’s specific argument that Dr. Byrne was not “duly and regularly
engaged” in the practice of nursing, the First District again erroneously conflated
that statutory requirement in section 766.202 with the “devoted professional time”
requirement in section 766.102. Id. at 119-20. Rhodin failed to consider the fact
that in 2003, the Legislature adopted a definition of “medical expert” in section
766.202 that not only retained the “duly and regularly engaged” language but also
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provided that a presuit “medical expert” must also “meet[] the requirements of an
expert witness as set forth in s. 766.102.” See ch. 2003-416, § 58, at 76, Laws of
Fla. The 2003 amendments make clear beyond any doubt that the “duly and
regularly engaged” requirement in section 766.202 and the “have devoted
professional time” requirement in section 766.102 are not one and the same.
Conflating the two requirements renders the “duly and regularly engaged”
language a nullity. See State v. Goode, 830 So. 2d 817, 824 (Fla. 2002) (“[A] basic
rule of statutory construction provides that the Legislature does not intend to enact
useless provisions, and courts should avoid readings that would render part of a
statute meaningless.”).
II. DR. THOMPSON’S INSUFFICIENT AFFIDAVIT
Even assuming that Dr. Thompson’s activities during the three years
immediately preceding the alleged malpractice in this case should control whether
this case is permitted to proceed, I would approve the First District’s decision.
In determining that the proper standard of review is de novo, the majority
repeatedly remarks that the facts surrounding Dr. Thompson’s qualifications were
“unrefuted.” In doing so, the majority ignores that Dr. Thompson’s affidavit was
problematic on its face, the facts were in dispute, and the plaintiff and plaintiff’s
counsel—both leading up to and during Dr. Thompson’s court-authorized
deposition—obstructed the defendants’ requests for relevant information. This
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case hardly involved “a fishing expedition in an attempt to impeach” Dr.
Thompson’s qualifications. Majority op. at 33 (quoting Morris, 189 So. 3d at 351
(Swanson, J., dissenting)).
According to Dr. Thompson’s affidavit, she “engaged in full-time patient
care until March 2008” when she retired due to arthritis in her hands. According to
the very same affidavit, Dr. Thompson received her J.D. in 2007 and her M.P.Aff.
(Master of Public Affairs) in 2008, both from the University of Texas. In other
words, at the same time she was purportedly still caring for patients on a “full-
time” basis, Dr. Thompson was also enrolled on a full-time basis in law school and
in a Master of Public Affairs program. In addition to begging obvious questions,
not the least of which is how it is humanly possible to simultaneously do all of
those things, Dr. Thompson’s affidavit facially conflicted with then Standard
304(f) of the American Bar Association’s Standards for Approval of Law Schools,
which prohibited full-time law students from working more than twenty hours per
week. Any reasonable defense attorney—and any reasonable trial judge, as was
the case here—would have been skeptical. And when the plaintiff chose to
respond to the defendants’ requests for information—both with regard to Dr.
Thompson and other matters—the answers were either nonresponsive or begged
more questions. For example, the defendants were told that Dr. Thompson
somehow managed to deliver approximately thirty-five babies per month while she
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was enrolled full-time in law school and in a master’s program. It should go
without saying that the trial court acted within its discretion in authorizing limited
discovery directed at Dr. Thompson’s activities during the three-year period
preceding the alleged malpractice. And that discovery included a properly noticed
deposition of Dr. Thompson along with a request for documents to be produced at
the deposition.
The record reflects that the plaintiff waited until approximately ninety
minutes before the deposition to file an objection to the defendants’ request for
documents. The record also reflects that during the deposition, the plaintiff’s
counsel repeatedly objected—and instructed Dr. Thompson not to answer—when
certain relevant questions were asked regarding Dr. Thompson’s purported
activities during the three-year period preceding the alleged malpractice. When
Dr. Thompson was permitted to answer questions, she testified that, among other
things, she “probably” worked “more than” one hundred hours per week between
her practice and her J.D. and M.P.Aff. degrees. That included being on call for
unaffiliated patients at the hospital two to three days per month, as well as being on
call for her own patients every third to fourth night or day until the final year of her
practice when she “took call . . . 24/7” for her own patients—all while suffering
from arthritis in her hands that became “severe” in the final years of her practice.
Of course, Dr. Thompson was not permitted to answer, for example, whether she
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filed for disability with regard to her arthritis and, if so, whether the application—
which would have discussed her work history—was available for inspection.
Similarly, Dr. Thompson was instructed to not answer questions such as whether
she was aware of any requirements by her law school regarding not working
outside the law school more than twenty hours per week, although her subsequent
testimony implied that the dean of the law school knew and approved of her plan to
continue practicing OB/GYN on a “full-time” basis—again, notwithstanding the
American Bar Association’s Standards for Approval of Law Schools. Dr.
Thompson also was not permitted to discuss whether her compensation from and
the finances of her medical practice changed as a result of her starting law school.
That was the case even though Dr. Thompson revealed earlier in the deposition
that she had hired “a contract physician” “during some of that time” but could not
quite recall the specifics of that hire, including when she hired the physician, the
terms of payment, or whether the physician had a set schedule for a period of time
at least as long as a law school semester. And Dr. Thompson was not permitted to
answer whether she at some point sold her practice to that contract physician.
On this record, I disagree with the majority’s description of the defendants’
attempts to confirm the claims made by Dr. Thompson as being “a fishing
expedition.” Majority op. at 33. And I reject the majority’s view that Dr.
Thompson’s affidavit conclusively established her statutory qualifications. The
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true extent of Dr. Thompson’s activities during the relevant period remains very
much in doubt. I therefore disagree with the majority’s analysis, which is entirely
predicated on the assertions that Dr. Thompson clearly met the statutory
requirements and that her affidavit went “unrefuted.” This case should properly be
viewed as a case in which a facially insufficient affidavit was submitted and the
defendants were prevented from determining whether Dr. Thompson in fact met
the statutory requirements. And no case law supports allowing a medical
malpractice suit to proceed in the absence of a timely corroborating affidavit from
a presuit “medical expert” as defined in section 766.202(6).
In attempting to justify its decision, the majority notes that the presuit
statutes should be “interpreted liberally” so as to favor access to courts. See
majority op. at 16 (quoting Kukral, 679 So. 2d at 284). But this case has nothing to
do with roadblocks to court access. Instead, this case has to do with a plaintiff
submitting a facially insufficient and suspect affidavit and then repeatedly
declining—even in the face of a court-imposed order—to provide relevant
information that would have confirmed or refuted the affidavit. “Liberally”
interpreting the presuit process does not warrant allowing plaintiffs to obstruct
defendants from obtaining relevant information regarding questionable claims and
then rewarding that obstruction through an analysis that treats those claims as
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“unrefuted.” The majority’s decision to simply reinstate the plaintiff’s suit
seriously undermines the presuit process established by the statute.
III. CONCLUSION
Although the plaintiff’s purported presuit “medical expert”—Dr.
Thompson—appears to have enjoyed a lengthy career as an OB/GYN, she did not
meet the statutory qualifications for a “medical expert,” given that she was not
“duly and regularly engaged” in the practice of the profession at the time she
executed the presuit affidavit. The plaintiff thus failed to meet the presuit burden
of having corroborated that reasonable grounds existed to support a malpractice
claim, and the plaintiff failed to remedy that defect prior to filing suit and prior to
the expiration of the limitations period. Even assuming that the only relevant
period is the three years immediately preceding the alleged malpractice, the record
before us—due to the conduct of the plaintiff and plaintiff’s counsel—cannot
support the finding that Dr. Thompson met the statutory qualifications. I would
approve the result reached by the First District in affirming the dismissal of the
plaintiff’s complaint. Accordingly, I dissent.
POLSTON and LAWSON, JJ., concur.
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions
First District - Case No. 1D14-3987
(Jackson County)
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John S. Mills, Courtney Brewer, and Andrew D. Manko of The Mills Firm, P.A.,
Tallahassee, Florida,
for Petitioner
Peter D. Webster and Christine Davis Graves of Carlton Fields, Tallahassee,
Florida,
for Respondent Bay Hospital d/b/a Gulf Coast Medical Center
Clifford C. Higby and Kevin Barr of Bryant & Higby, Chartered, Panama City,
Florida; and William D. Horgan and Michael J. Thomas of Pennington, P.A.,
Tallahassee, Florida,
for Respondents Stephen G. Smith, M.D., Orlando S. Muniz, M.D., and
Marianna OB/GYN Associates, Inc.
Jaken E. Roane of Guilday, Simpson, West, Hatch, Lowe & Roane, P.A.,
Tallahassee, Florida,
for Respondent Jackson Hospital
Philip M. Burlington and Adam Richardson of Burlington & Rockenbach, P.A.,
West Palm Beach, Florida,
Amicus Curiae Florida Justice Association
Travase L. Erickson of Saalfield Shad Law Firm, Jacksonville, Florida, and Kansas
R. Gooden of Boyd & Jenerette, P.A., Jacksonville, Florida,
Amicus Curiae Florida Defense Lawyers Association
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Tuyuana L. Morris, etc. v. Orlando S. Muniz, M.D.
Combined Opinion