The Florida Supreme Court is making it easier for medical providers to short-circuit medical malpractice lawsuits by altering the procedural rules regarding when medical malpractice cases can be appealed.
The court rejected a motion by the University of Florida Board of Trustees to dismiss a medical malpractice lawsuit filed against the school. But at the same time, the court issued a related ruling that changes court rules to give appellate courts the ability to review non-final orders that deny a motion to dismiss a medical malpractice claim based on the qualifications of corroborating witnesses.
The rule change takes effect immediately. Because the Supreme Court amended the rule on its own the changes were not available for the public to review in advance of it taking effect. To that end, the Supreme Court is accepting through Sept. 19 public comments as well as requests for oral argument which the court acknowledged “may be scheduled in this case.”
In his brief dissenting opinion on the appellate rule change, Supreme Court Justice Jorge Labarga said, “a rule change of this magnitude should be referred to the appropriate committee for consideration and recommendations prior to its adoption.”
The change is a significant one in the often-complex landscape of medical malpractice litigation.
“I am optimistic that this will ensure that only truly qualified experts offer opinions against other physicians,” said William Large, president of the Florida Justice Reform Institute, a group that focuses on changing Florida’s legal environment to limit lawsuits against Florida businesses.
Before filing a medical malpractice claim in Florida, a person who wants to sue must meet certain requirements, including having a medical expert file a written opinion corroborating the alleged malpractice. The law limits who can serve as a medical expert by requiring that they meet certain criteria, depending on the type of provider being sued.
For general practitioners or non-specialists, expert witnesses must — in the three years before the alleged malpractice — have worked or consulted in the same or similar health profession as the provider being sued or taught the same or similar profession to students in an accredited health professional school or accredited residency program; or devoted time to a clinical research program in the same or similar field that is affiliated with an accredited medical school or teaching hospital.
The criteria for suing providers who are specialists is similar but narrower in that it requires the expert to have worked in the same specialty, not allowing the expert to have “similar” experience to the specialist being sued.
Laurie Carmody filed the underlying case against Shands Teaching Hospital and Clinics, the University of Florida Board of Trustees, neurosurgeon William Friedman and advanced nurse practitioner Yolanda Gertsch-Lapcevic.
Carmody alleges in the suit that she was paralyzed by an abscess that developed on her spine following a surgical procedure. Carmody included within her pre-suit notices the affidavit of James DeStephens, a licensed medical doctor specializing in internal medicine, hospital medicine and cardiology.
Shands and UF moved to dismiss the complaint on the grounds that DeStephens did not meet the expert witness requirements needed for the suit to continue.
The circuit court ultimately held hearings and, according to the Supreme Court opinion, Carmody “conceded” that the expert witness didn’t meet the requirements to testify against the neurosurgeon and she dropped him from the suit. But the circuit court denied UF’s motion to dismiss the lawsuit in its entirety.
UF responded by heading to the 1st District Court of Appeal and asking the Tallahassee-based appeals court to quash the lower court decision, saying it departed from essential requirements of the law and caused them irreparable harm. UF lawyers also argued that the changes to Florida’s medical malpractice laws over the years had fundamentally changed previous case law regarding requirements for hearing appeals while the underlying case was still ongoing.
Judges at 1DCA disagreed and eventually the Supreme Court agreed to take up the case. The bulk of the case centered on whether it was appropriate to review the circuit court order on the expert witness requirement while the overall lawsuit was still not resolved.
This type of review is appropriate only when there has been a departure from the essential requirements of the law that result in material injury for the remainder of the case that cannot be corrected on appeal following the judgment. Moreover, in Florida, appellate review of non-final orders is limited.
In its ruling Thursday the majority of the Florida Supreme Court opined that ”while the burden of defending against litigation under ordinary circumstances does not constitute irreparable harm,” the Legislature “elected to treat differently the burden of defending against meritless medical negligence claims” when it passed pre-suit requirements for medical malpractice cases.
The opinion notes that the medical malpractice laws require judges to dismiss claims that don’t meet the pre-suit requirements.
“It is within our constitutional authority to ensure that Florida’s procedural rules of court manifest the substantive legal enactments of the Legislature,” the opinion notes, underscoring that only the court has the power to determine when such type of review is appropriate.