Despite plain language contained within chapter 766 that would require supporting experts to be engaged in practice, the Court held that an obstetric physician who was retired when she signed a pre-suit affidavit was qualified to corroborate a medical malpractice claimant’s notice of intent to initiate medical malpractice litigation (NOI) in
Morris v. Muniz, MD
, Case No . SC16-931 (Fla. Sept. 6, 2018). In this decision, the Court pronounced that its guiding principle was to provide claimants with access to the courts. In arriving at this decision, the Court arguably denigrated one of the clear statutory provisions contained within chapter 766 aimed to protect health care providers from unsupported claims.
, a patient (Plaintiff) sued her former obstetric doctor (Defendant), asserting her stillborn delivery resulted from medical malpractice. The Defendant challenged the Plaintiff’s compliance with chapter 766 by asserting that the Plaintiff’s pre-suit expert was not qualified because she failed to demonstrate that she was sufficiently engaged in practice during the three years before the alleged medical malpractice occurred. The trial court dismissed her claim on this basis, and the appellate court agreed.
On further appeal, the Court considered the Plaintiff’s pre-suit expert’s qualifications in terms of her professional activities during the three years before the alleged medical negligence occurred, and in terms of her status when she signed her pre-suit affidavit. The Court also considered if the Defendant incurred undue prejudice.
With regard to the Plaintiff’s pre-suit expert’s qualifications in terms of her professional activities during the three years before the alleged medical negligence occurred, the Court held that it did not matter that the Plaintiff’s pre-suit expert was retired when she signed her pre-suit affidavit against the Defendant. In a lengthy analysis, the Court rejected the idea that section 766.202(6), Florida Statutes (2011) imposes upon Florida medical malpractice claimants the requirement that they secure experts during pre-suit who are active practitioners. Specifically, the Court construed the language contained within section 766.202(6), Florida Statutes (2011), which defines an expert, to be one who is “a person duly and regular engaged in the practice of his or her profession.” The Court construed this provision to impose no separate requirement from section 766.102(5), Florida Statutes (2011), which requires an expert to “devote professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action” to be qualified to corroborate negligence for purposes of the chapter 766.
The Court reasoned that to construe section 766.202(6), Florida Statutes (2011), to create a separate requirement would violate the Plaintiff’s constitutional right to have access to courts. It referred to the fact that the Plaintiff’s expert stated in her affidavit and at deposition that she worked full time during part of the three years before the alleged medical negligence occurred, and that this was evidence enough that she qualified under chapter 766 to be a pre-suit expert. The Court rejected the idea that the lower courts had the authority to question the Plaintiff’s expert’s veracity regarding the nature of her practice during the subject three-year period in determining her qualifications to serve to be the Plaintiff’s pre-suit expert.
With regard to prejudice, the Court held that: