Florida Supreme Court Changes Appellate Rules So Challenges to Expert Witness Qualifications Can Be Immediately Appealed
The Florida Supreme Court last month amended the state’s rules of appellate procedure “to provide for interlocutory review of nonfinal orders that deny a motion dismiss on the basis of the qualifications of a corroborating witness.”
Prior to the rule change, medical malpractice defendants had to wait until the conclusion of their trial before appealing any denied motions to dismiss based on the qualifications of the plaintiff’s expert witness. Since the July 6 rule change, hospitals and healthcare providers can immediately appeal an order denying a motion to dismiss based on grounds that the plaintiff’s medical expert witness isn’t adequately qualified to testify against the defendant.
The court rooted its procedural change in recent legislative reforms to Florida’s Medical Malpractice Act. The updated law requires filing a pre-suit expert affidavit from a healthcare provider that corroborates the alleged malpractice. The affidavit must be written by an expert witness who, during the three years prior to the alleged malpractice, and has practiced in the same medical specialty as the healthcare provider against whom the testimony is offered. Previous to the reform, expert witnesses had to practice in the “same or similar” specialty, not the same specialty. If providing testimony against medical support staff, e.g., nurse practitioners, the expert may testify if he or she had engaged in the active clinical practice of — or consulting with respect to — the same or similar profession as the healthcare provider against whom they were providing testimony against.
According to the justices, those “Medical Malpractice Act [reforms] changed the law such that an interlocutory remedy for parties facing claims that fail to satisfy its pre-suit requirements is warranted.”
In the case underlying the rule change, University of Florida Board of Trustees v. Laurie Carmody, the petitioners moved to dismiss a malpractice action against a neurosurgeon and an advanced practice registered nurse working at Shands Teaching Hospital & Clinics, a part of the University of Florida healthcare system, asserting that the respondent’s expert witness did not meet the statutory requirements outlined in the Medical Malpractice Act.
Laurie Carmody sued William Friedman, MD, Yolanda Gertsch-Lapcevic, APRN, and Shands after a cervical disc fusion procedure resulted in a spinal abcess that required two additional surgeries, neither of which fully restored functionality. When she filed her malpractice claim, Carmody included the affidavit of James DeStephens, MD, who attested that malpractice occurred and that he was a licensed medical doctor specializing in the practice of internal medicine, hospital medicine and cardiology. The defendants moved to dismiss the complaint on the grounds that DeStephens did not satisfy the requirement of practicing in the same specialty as the defendant neurosurgeon or the advanced practice nurse.
Carmody conceded DeStephens did not meet expert requirements pertaining to Friedman and dropped him from the suit while maintaining her expert did meet the requirements pertaining to the nurse practitioner. The circuit court denied the motion, determining DeStephens was qualified to render standard-of-care opinions against Gertsch-Lapcevic.
The University of Florida Board of Trustees asked the First District Court of Appeals to quash the order, arguing that the lower “court’s order departed from the essential requirements of the law and caused them irreparable harm.”
The First District dismissed the petition on the basis of precedent set in Williams v. Oken, a case in which the Florida Supreme Court held that a district court exceeded its jurisdiction by weighing the evidence as to whether an expert was qualified under the Medical Malpractice Act. The University of Florida Board of Trustees appealed to the Florida Supreme Court.
The Supreme Court agreed with the First District’s determination that petitioners failed to satisfy the requirements articulated in Williams for it to intervene. However, the majority opinion also determined that changes to the Medical Malpractice Act required changing appellate procedure, broadening the appellate court’s jurisdiction so that it may address such challenges in a concurrent opinion.
“A rule change of this magnitude should be referred to the appropriate committee for consideration and recommendations prior to its adoption,” wrote Justice Jorge Labarga in his dissent to the rule change.
