The primary issue that we address in this case is whether under Florida's Medical Malpractice Act a presuit affidavit submitted by a plaintiff from a health care provider who does not specialize in the same field as the defendant nevertheless meets the statutory presuit investigatory requirements for filing a medical negligence suit. For the following reasons, we hold that it does not, and we therefore affirm the final judgment.
The facts of this case pertinent to this appeal are fairly undisputed. Sandra Dale Essex
Dr. Karr moved to dismiss the complaint, asserting that the three affidavits were insufficient to meet the statutory presuit requirements of section 766.102(5)(a)1., Florida Statutes (2013), because none of the affidavits was from an expert witness specializing in his field of orthopaedic surgery. Essex responded that this "same specialty" requirement only pertained to expert testimony presented at trial and that under this court's decisions in State Farm Mutual Automobile Insurance Co. v. Long, 189 So.3d 335, 339 (Fla. 5th DCA 2016), and Apostolico v. Orlando Regional Health Care Systems, Inc., 871 So.2d 283, 287 n.4 (Fla. 5th DCA 2004), her presuit affidavits, although not from orthopaedic surgeons, were nevertheless sufficient because there is "a less stringent standard for qualification of experts in the medical malpractice presuit screening process than might be required of an expert to offer testimony at trial." Apostolico, 871 So.2d at 287 n.4 (citing Faber v. Wrobel, 673 So.2d 871, 872-73 (Fla. 2d DCA 1995)). Essex further argued that the three presuit affidavits submitted gave her counsel sufficient grounds for a good faith belief that Dr. Karr had negligently provided orthopaedic surgical care, thus complying with counsel's statutory presuit duty to reasonably investigate the claim. See § 766.104(1), Fla. Stat. (2013).
The trial court disagreed, specifically finding that the affidavits from the emergency room physician, radiologist, and the
One of the legislative purposes of Florida's Medical Malpractice Act, codified in Chapter 766, Florida Statutes, is to provide a "mechanism for the prompt resolution of medical malpractice claims through mandatory presuit investigation," Walker v. Va. Ins. Reciprocal, 842 So.2d 804, 809 (Fla. 2003) (quoting St. Mary's Hosp., Inc. v. Phillipe, 769 So.2d 961, 969-70 (Fla. 2000)), thus allowing the parties "to avoid lengthy litigation of claims and the associated costs of such litigation," id. (citing Kukral v. Mekras, 679 So.2d 278, 280 (Fla. 1996)). Section 766.203, Florida Statutes, specifically governs the presuit investigation requirements of medical negligence claims by prospective parties. Prior to filing a notice of intent to initiate a medical negligence suit, a claimant must conduct an investigation to ascertain that reasonable grounds exist that the named defendant in the litigation was negligent in the care and treatment of the claimant and that such negligence resulted in injury. Further, the existence of reasonable grounds to support a claim of medical negligence must be corroborated by the claimant's submission of a verified written medical expert opinion from a medical expert as that term is defined in section 766.202(6). This statute defines a medical expert as:
Applying these two statutes to the instant case, Essex was required to submit a presuit verified written medical opinion from an individual who would qualify as an expert witness under section 766.102, corroborating that reasonable grounds existed for her to bring a medical negligence suit against Dr. Karr.
In 2013, the Legislature specifically amended section 766.102(5), regarding the requirements for qualification as an expert witness. Pertinent to this case, the statute now reads:
Here, because Dr. Karr is an orthopaedic surgeon, the plain language of this statute required that the medical expert or experts who provided Essex with the corroborating presuit verified medical expert opinions be of the same specialty. See Clare v. Lynch, 220 So.3d 1258, 1261 (Fla. 2d DCA 2017).
Appellant's reliance on our decisions in Apostolico and Long for the argument that
Appellant also briefly raises for the first time on appeal the constitutionality of the "same specialty" requirements of section 766.102(5)(a). We conclude that this issue has not been properly preserved for review. Florida Rule of Civil Procedure 1.071 provides that a party who seeks to question the constitutionality of a state statute or a county or municipal charter, ordinance, or franchise must, among other things, serve the notice and the pleading or other document challenging its constitutionality upon either the Attorney General or the state attorney of the judicial circuit in which the action is pending. Here, no such notice was provided. See Shelton v. Bank of N.Y. Mellon, 203 So.3d 1003, 1005 (Fla. 2d DCA 2016) (declining to consider constitutional challenge to section 702.035, Florida Statutes, because there was no record indication that the appellant complied with rule 1.071 by serving either the Attorney General or state attorney); Diaz v. Lopez, 167 So.3d 455, 460 n.10 (Fla. 3d DCA 2015) (finding that the appellant's constitutional challenge to a city's charter was not before the court because the specific requisites of rule 1.071 were not invoked in the circuit court).
Accordingly, the final judgment entered in favor of Dr. Karr is affirmed.
HARRIS and GROSSHANS, JJ., concur.