Subject: Supreme Court amends Rules to move trials forward—expect stricter enforcement by trial courts

Court amends Rules of General Practice and Judicial Administration to promote ‘fair and timely’ resolution of civil cases

Subject: Defense Not Required to Produce Expert

In the 01/03/2024 4^th DCA decision in Carrasquillo v. Metzler, the court reversed JNOV entered against a defendant doctor after a complete defense verdict. Plaintiff argued that the defense must present expert testimony to prevail. This argument was rejected. As the defendant physicians denied negligence and there were discrepancies among plaintiff’s experts, the jury was free to reject plaintiff experts’ opinions and render a defense verdict:

…nothing in section 766.102(5) requires a defendant health care provider to present independent expert testimony to oppose an allegation of the breach of standard of care. Such a requirement would improperly shift the burden of proof…

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Carrasquillo v. Metzler

Subject: Venue Change—Forum Non Conveniens

Reversal of denial of venue change motion to venue where care was rendered & all witnesses lived/worked.

Multi-office practice made venue appropriate in Broward, but other than plaintiff attorneys, no real/substantial contact with Broward County. Convenience of the witnesses is now the single most important factor and “[t]he plaintiff’s forum selection is no longer the factor of over-riding importance.” Error not to transfer.

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Water’s Edge Dermatology, LLC v. Christopherson

Subject: Same Specialty Experts

Chapter 766 does not define “same specialty” experts as the term is used in §766.102(5) and issues of subspecialists and Board Certification have been arising more frequently. See e.g., Martinez v. Perez Eye Center. The undefined  term “same specialty” is also used in workers compensation law (§440.13(2)(f)) and on 11/30/2022, the 1^st DCA issued a decision in B&A Gourmet Foods v. Mora-Abreu, in which the court included a cogent discussion regarding the term as it applies to subspecialists. In short, while the first physician was board-certified in orthopedic and plastic surgery (and held himself out as a CAQ subspecialty ‘hand surgeon’), the second physician was not boarded in plastic surgery, but was also a board-certified orthopedic surgeon fellowship trained in the CAQ subspecialty of hand surgery. The 1^st DCA held that the two “hand surgeons” were in fact “same specialty” for purposes of the workers compensation system:

Both doctors testified that hand surgery is a subspecialty within general, plastic, or orthopedic surgery. Although there is no board certification by the American Board of Medical Specialties (ABMS) in hand surgery, there is a credentialing process that requires an even higher level of skill and training to complete. After a one-year fellowship, a physician must pass an examination before receiving a certificate of added qualification in hand surgery. Both Dr. Cortes and Dr. Easterling completed this process, which qualifies hand surgery as a specialized pursuit or field of practice in which they are experts after devoting much time and concentrated effort.

That the ABMS considers hand surgery to be a subspecialty, rather than a specialty, is not dispositive. Nothing in the one-time change provision limits the meaning of “specialty” to certificates in the primary medical specialties recognized by the ABMS. As Dr. Easterling put it, “[t]here’s not a difference between orthopedic hand care and plastic hand care. Hand surgery is hand surgery.”

We believe the B&A Gourmet Foods decision is correctly decided on its facts and will support challenges to plaintiff experts who are not subspecialty trained. However, the statutory context is distinguishable and one must read the entire discussion to ensure we understand the issues.

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B&A Gourmet Foods v. Mora-Abreu

Subject: Same Specialty Experts

In Martinez v. Perez Eye Center, the 2^nd DCA confirmed that both the defendant, a board-certified ophthalmologist, and the plaintiff expert, also a board-certified ophthalmologist, did specialize in the same specialty as required by §766.102(5), despite the fact that the expert had additional fellowship training in neuro-ophthalmology.  The fact that the expert has additional training beyond his board certification “does not undermine the fact that he remains a board-certified ophthalmologist—just like [defendant].”  While this is a reasonable decision under these facts, the concept should not be applied in the other direction.  A board-certified expert should not testify against a subspecialist who is practicing within the area of his subspecialty fellowship training—these parties would not be practicing in the “same specialty.”

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Martinez v. Perez Eye Center

Subject: Privacy of Personnel Records 

In Allstate v. Ray, the 2^nd DCA issued a well-reasoned decision requiring an in-camera inspection of employees’ personnel records prior to production, given the fundamental privacy protections of the Florida Constitution.  Even with redaction, these records contain matters which are fundamentally private and review is necessary before production.

Good overview of supportive case law in this area.

Also brief overview of attorney client privilege and work product and need for discoverability determination prior to production of privilege log.

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Allstate v. Ray

Subject: “Verified” Medical Expert Opinions Must Be Truly Verified

In Dr. Hazem al Andary v. Walsh, the 2^nd DCA ordered dismissal of an action for failure to comply with the presuit corroboration requirements of §766.203(2)(b) by providing a written and notarized corroborating letter that was not verified or sworn.  “The Walshes provided a corroborating letter … [which] detailed his review of the case and included a number of opinions he had formed. … What the letter did not have, though, was any kind of language that could reasonably be construed as a ‘verification’ on the part of the doctor.”  The letter was notarized, “[b]ut there was no attestation, authentication, oath, verification (or, indeed, any indication at all) of what function the notarization was supposed to serve.”  In ordering dismissal of the complaint, the 2^nd DCA found the statutory requirement of verification to be clear and unambiguous, noting that “verified” is a term of singular legal significance and citing to §92.525.  See also Koung v. Giordano, 47 FLW D116 (Fla 1st DCA 2022).

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Dr. Hazem al Andary v. Walsh

Subject: New Summary Judgment Standard and Filing Requirements

In Siegler v. Empire Dawn, the 5^th DCA recently affirmed summary judgment and in doing so, applied the new timing provisions of Fla. R. Civ. P. 1.510(c). Here, the trial court granted summary judgment after the nonmoving party failed to timely serve its response with its supporting factual information at least 20 days prior to the hearing. In affirming the summary judgement, the 5^th DCA cited to the newly enacted Fla. R. Civ. P. 1.510(c)(5), which includes strict filing/timing requirements; “Courts generally do not find excusable neglect based on the attorney’s misunderstanding or ignorance of the … rules of procedure.”

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Siegler v. Empire Dawn, LLC

Subject: Presuit Affidavits Required for All Defendants

In Rafferty v. Martin Memorial Medical Center, the 4^th DCA recently affirmed dismissal of the Complaint for failing to comply with the presuit requirements of Chapter 766. Plaintiff brought suit against a midwife and hospital, claiming medical negligence caused her child to suffer a shoulder dystocia injury. Plaintiff’s presuit expert affidavit stated reasonable grounds to initiate medical malpractice litigation against the midwife, but failed to address how the hospital or its nursing staff deviated from the standard of care. Because of this, the trial court properly granted dismissal in favor of the hospital.

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Rafferty v. Martin Memorial Medical Center

Subject: Appellate Rules Amended to Allow Early Review of Punitive Damage Claims

Effective 04/01/2022, Rule 9.130 has been amended to authorize interlocutory appeals of nonfinal orders that grant or deny a Motion to Amend to Assert a Claim for Punitive Damages.  A divided Florida Supreme Court adopted Rule 9.130(a)(3)(G) in its decision of 01/06/2022 despite the dissent of Justice Jorge Labarga: “Of particular concern are tort cases involving personal injury, where claims for much-needed medical and economic relief will stall until the question of punitive damages is resolved.”

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In Re: Amendment to Florida Rule of Appellate Procedure 9.130

Subject: Statutory Discovery Immunity of Peer Review/Credentialing Data

In Memorial Healthcare v. Feldbaum, the 4^th DCA recently held that documents relating to the peer review and credentialing process are immune from discovery under Chapter 395.  Without specifically addressing Amendment 7, the appellate court affirmed the continuing viability of the statutory privileges and their establishment of “discovery immunity.”  The court cited longstanding case law affirming that discovery immunity should be applied broadly because “there is an overwhelming public policy in favor of maintaining the privilege to encourage self-regulation by the medical profession.”

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Memorial Healthcare v. Feldbaum

Subject: Absence of Bad Faith

On 06/01/2021, in Eres v. Progressive American, the Eleventh Circuit affirmed the lower court’s summary judgment in favor of Progressive American in a third-party bad faith claim.  The Court found the “totality of the circumstances” showed the insurer acted in good faith in attempting to settle the claim.  This is despite the insurer sending a counter-settlement offer which did not precisely “mirror” the injured party’s original settlement demand.  A well-reasoned objective review of the real world of claim management.

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Eres v. Progressive American

Subject: Civil Case Management Guidelines/Deadlines

Effective 05/07/2021, the Florida Supreme Court has ordered each of the twenty judicial circuits to publish Civil Case Management Administrative Orders detailing procedures and deadlines for civil jury trials.  Unless deemed “complex”, newly filed civil jury actions should be scheduled for trial within eighteen months.  Complex cases should be scheduled for trial within twenty-four months.  The Supreme Court has indicated that the trial courts will take a more active role in managing civil litigation and civil jury trials.

Below is a link to the Office of State Courts Administrator (OSCA) website with a listing of each circuit’s Civil Case Management Administrative Orders.

Civil Case Management Administrative Orders

Subject: Florida Formally Adopts New Summary Judgment Standard

Effective 05/01/2021, Rule 1.510 (Summary Judgment) has been amended to largely mirror the Federal Rules (FRCP 56). Below is a link to an excellent Florida Bar News article discussing the new standard for Summary Judgment and new deadlines for managing Summary Judgment proceedings.

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Florida Bar News: New Summary Judgment Standard in Florida May Take Some Getting Used To

Subject: Discovery of Actual/Discounted Medical Expenses

On 5/21/21, in Osceola County v. Sand Lake Surgery Center, the 5^th DCA found the trial court erred in denying defendant’s motion to compel documents from a non-party treater related to the original cost of plaintiff’s medical bills.  As plaintiff bears the burden of proving the reasonableness of medical expenses, and is only obligated to pay for reasonable expenses, documents relating to the original medical bills and any agreed discounts are relevant & discoverable.

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Osceola County v. Sand Lake

Subject: Error to Admit Gross Past Bills in Medicare Cases

In Gulfstream v. Volin (5/19/21), the 4^th DCA agreed with the 2^nd DCA decision of Dial v. Calusa Palms Master Ass'n, holding that the gross amount the medical provider billed is inadmissible as evidence when Medicare satisfied the medical expenses for a lesser amount.  Thus, the trial court erred when it allowed plaintiff to introduce evidence of the amount billed by providers instead of the discounted amount Medicare paid in full satisfaction of her past medical expenses (“net”).  They joined in certifying the question to the Florida Supreme Court.

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Gulfstream v. Volin

Subject: Financial Discovery—Referral to Treater by Plaintiff Attorney

Noting a distinction from Worley, on 07/15/2020, the 3^rd DCA advised that when a plaintiff “opens the door” and places her credibility at issue by claiming that she was referred to her chiropractor by the emergency room, the fact that her lawyer referred her (and the Letter of Protection) are admissible.  In Ruchimora v. Grullon, the 3^rd DCA affirmed the trial court’s decision to allow disclosure of the referral relationship given plaintiff’s (and plaintiff counsel’s) untrue assertion that the referral came from the emergency physician.  You can’t hide behind Worley and lie about the source of a treating physician.

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Ruchimora v. Grullon

Subject: Financial Discovery—Defense Experts

On 6/26/19 in Dodgen v Grijalva, the 4^th DCA joined the 5^th in certifying to the Florida Supreme Court whether defense firms & insurers are being treated unfairly in being subject to financial discovery regarding treating/hybrid experts when such discovery is not allowed from plaintiffs under Worley. Appears our newly reconstituted FSC is actively considering the disparate treatment issues.

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Dodgen v Grijalva

Update: The Battle Continues

On 6/17/20 in Tahan v. Munoz, the 3^rd DCA weighed into this dispute with the strong and well-researched concurrence of Judge Miller:

Worley has served to obfuscate the transparency in financial bias arguably imputed to plaintiff-retained experts, but not defense-retained experts. … [T]his incongruity compromises the truth-seeking function and fairness of the trial process. Fair play and common sense dictates that what is sauce for the goose is sauce for the gander, thus, the continuing viability of Worley should give us pause for reflection.

Stay tuned!

Tahan v. Munoz

Update II: Florida Supreme Court Hears Oral Argument

In Younkin v. Blackwelder, the Florida Supreme Court heard oral argument on these issues of “great public importance” on 9/10/20. (SC19-385) If you are interested, follow this link to listen to the oral arguments.

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Subject: Failure to Transfer, Even for Alleged Economic Reasons, Constitutes Medical Negligence Claim

On 05/29/2020 in Rockledge HMA, LLC, et al. v. Lawley, the 5^th DCA granted certiorari and found, as a matter of law, that the alleged failure to complete a medically necessary transfer—even as part of an alleged scheme to increase hospital admission rates for strictly financial reasons—sounds in medical malpractice and is subject to presuit investigation (and presumably the two-year statute of limitations).  The appellate court found that the claim arose from an alleged lack of treatment, effecting a medically necessary transfer.  Even if the alleged reason for the improper decision was economic interest, the underlying failure to treat/failure to transfer is a claim “arising out of the rendering of, or the failure to render, medical care or services.”

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Rockledge HMA, LLC, et al. v. Lawley

Subject: Dismissal Appropriate without Presuit Investigation

On 05/20/2020, in Henderson Behavioral Health, Inc., et al. v. Cortes, the 4^th DCA granted certiorari and imposed dismissal for failure to comply with presuit, despite Plaintiff’s allegations that the claim involved ordinary negligence vs. professional negligence.  While doubtful questions are generally resolved in favor of the claimant, the determination of whether a complaint alleges a claim for medical malpractice is a legal one.  In this case, the allegation that a hospital failed to discharge/transfer a patient with appropriate medications was clearly a claim for medical malpractice governed by Chapter 766:

We have no difficulty or doubt in concluding that Plaintiff’s claims sound in medical negligence. … The trial court clearly departed from the essential requirements of law in denying the motions to dismiss.

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Henderson Behavioral Health, Inc., et al. v. Cortes

Subject: Patient/Resident Information is Not Normally Discoverable

The 1^st DCA has affirmed the principle that disclosure of identifying information for “stranger” patients/residents can only be allowed with a “showing of necessity which outweighs the countervailing interest in maintaining the confidentiality of such information …”  In Saints 120 v. Moore, the 1^st DCA granted certiorari and overturned a trial court order requiring disclosure of the names and demographic information regarding the other residents in an SNF unit where the plaintiff/resident fell.  Given that the Complaint alleged that this was an “unwitnessed fall”, almost by definition, the requested discovery was overbroad and improper.  As the right of privacy is established by the Florida Constitution, confidential information of patients/residents is fundamentally protected.

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Saints 120, LLC v. Moore

Subject: Presuit Expert Requirement Not Waived by Co-Defendant Failure to Produce Medical Records

The 2^nd DCA granted Cert and quashed/reversed the denial of a Motion to Dismiss a malpractice claim based upon plaintiff’s failure to supply a presuit affidavit.  In Brundage v. Evans, the Court held that the hospital’s alleged failure to timely produce medical records under §766.204(1) did not release the plaintiff from the requirement to produce an expert affidavit against the treating physician, even if his care was solely provided within the hospital.  The Complaint must be dismissed as to the physician, given that plaintiff did not timely provide an affidavit against him within the Statute of Limitations.

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Brundage v. Evans

Subject: Florida Supreme Court No Longer “Approves” Standard Jury Instructions

Effective 04/01/2020, the Florida Supreme Court adopted new Florida Rule of Judicial Administration 2.270 authorizing the jury instruction committees to approve and publish the standard jury instructions without Supreme Court approval.  The Florida Supreme Court is no longer deciding what the jury instructions should say—this is being done by the jury instruction committees.

While there is still safety in utilizing standard jury instructions, this move reaffirms the absence of any presumption of Supreme Court approval or correctness for the standard jury instructions.

The standard jury instructions can be found at: https://jury.flcourts.org.

The Supreme Court opinion can be found at: https://www.floridasupremecourt.org/content/download/633123/opinion/sc20-145_CORRECTED.pdf

Subject: Plaintiff Presuit Affidavit Must Establish Deviation & Causation

The 1^st DCA recently affirmed the dismissal of a medical malpractice claim for failure of the presuit affidavit to establish both deviation from the standard of care and causation.  In Howell v. Balchunas, the Court confirmed that §766.203(2) requires a plaintiff to establish, with reasonable medical probability, deviation and causation prior to the expiration of the statute of limitations.  Conversely, a defense affidavit need only corroborate reasonable grounds for lack of a negligent injury.

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Howell v. Balchunas

Subject: Arbitration Damage Caps Upheld

On 12/18/2019, the 3^rd DCA, in reversing a trial court ruling, held that the medical malpractice arbitration damage caps of §766.207(7) and §766.209(4) remain presumably constitutional.  The Court refused the invitation of plaintiff and amicus to expand the McCall and Kalitan decisions to the noneconomic damage caps applicable when a defendant accepts legal responsibility and offers to arbitrate damages.

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Taylor Poole, M.D. v. Deborah DeFranko

Subject: Non-incident Data Not Discoverable Under Amendment 7

On 12/11/2019, the 2^nd DCA confirmed the continuing viability of peer review privilege under §395.0191(8) in regard to non-adverse incident data.  In Tarpon Springs Hospital Foundation, Inc. v. White, the Court expanded upon their Shahbas decision in upholding the statutory privilege in regard to “general credentialing information unrelated to an adverse medical incident”— in this case, data regarding when a defendant physician became Board eligible.  While Amendment 7 abrogates the privilege for “adverse medical incidents”, the Amendment does not apply to every document and data considered by a hospital credentialing or peer review committee.  The Court also held that its certiorari jurisdiction was properly invoked by the trial court’s order requiring production of statutorily privileged documents.

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Tarpon Springs Hospital Foundation, Inc. v. White

The Florida Bar sends Julie Brodis to Advanced Trial Advocacy program at Oxford

During the summer of 2019, EIFG Partner, Julie Brodis, was honored by the Trial Lawyers Section of The Florida Bar with the awarding of the Bennett Scholarship and attended The Advanced International Trial Advocacy program at Keble College in Oxford, England.  For five days and nights in residence at Keble, she joined an international contingent of trial lawyers subjected to intense trial advocacy training by leading advocates from England, Ireland, Hong Kong, South Africa, Antigua & the Cayman Islands.  She brings these finely honed advocacy skills and added confidence back home to Central Florida.

Congratulations Julie, and welcome home!

For more information, see page 9 of The Edge – Florida Bar Trial Lawyers Section – Winter 2019.

Subject: Medical/Ordinary Negligence—Patient Fall

In the latest “gray area” case distinguishing between medical and ordinary negligence, on 08/21/2019 the 4^th DCA in North Broward Hospital District v. Slusher granted a petition for certiorari and dismissed a patient fall claim against Broward Health, finding that the nurse’s actions in answering her cell phone while moving a “fall risk” patient from his bed did constitute medical negligence.

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North Broward Hospital District v. Slusher