CopyCited 130 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 202, 2011 Fla. LEXIS 1027, 2011 WL 1675242
...of chapter 766, Florida Statutes (2005), the Medical Malpractice Reform Act. See Oken,
23 So.3d at 142. Specifically, Dr. Oken alleged that Dr. Foster was not an expert in the field of cardiology, and as a result, Williams had failed to comply with section
766.102, Florida Statutes (2005), because he failed to attach a corroborating affidavit from a qualified medical expert....
...*1135 The Fourth District's decision in St. Mary's, which serves as the basis for this Court's discretionary review, got it right. In St. Mary's, the personal representative of the deceased's estate filed with St. Mary's Hospital a notice of intent to initiate litigation, pursuant to section 766.102(2), alleging failure to properly deliver medical care to the decedent....
CopyCited 50 times | Published | Supreme Court of Florida | 1993 WL 528465
...In McCullough, the Second District held that although a nursing home is not a health care provider as defined under chapter 766, the notice provisions of the Act apply to a negligence action against a nursing home if the professional medical negligence standard of care set forth in section 766.102 applied to the active tortfeasor the agent or employee of the nursing home....
...However, it is only logical that the term refers to defendants in a medical malpractice action who are health care providers as defined in chapter 766 or who, although not expressly included within that *838 class, are vicariously liable for the acts of a health care provider. It is clear that under section 766.102(1) "prospective defendants" in medical negligence actions are "health care providers as defined in [section] 768.50(2)(b):" In any action for recovery of damages based on the death or personal injury of any person in which it is alleg...
...s. 768.50(2)(b), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. § 766.102(1) (emphasis added)....
...action, even if the employer does not fall within the statutory definition of health care provider. As noted by the McCullough court, such a defendant may be vicariously liable under the professional medical negligence standard of care set forth in section 766.102(1) when its agent or employee, who is a health care provider, negligently renders medical care or services....
...Thus, we agree with the McCullough court that the proper test for determining whether a defendant is entitled to notice under section
766.106(2) is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1)....
...See Ragoonanan v. Associates in Obstetrics and Gynecology,
619 So.2d 482 (Fla. 2d DCA 1993). Accordingly, Groth was not required to give Weinstock notice prior to filing the instant action because Weinstock is not a health care provider to which the section
766.102(1) standard of care applies....
...Pinellas to the extent it conflicts herewith. It is so ordered. BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES and HARDING, JJ., concur. NOTES [1] Section 768.50(2)(b), was repealed except to the extent that it is incorporated by reference into section 766.102(1), Florida Statutes (1991)....
CopyCited 39 times | Published | Supreme Court of Florida | 1992 WL 110906
...y a "provider of health care." The Second District concluded that blood banks are health care providers, relying on a statutory definition formerly found in section 768.50(2)(b), Florida Statutes (1985) (repealed 1986). As the Second District noted, section 766.102, Florida Statutes (1989), defines the standards of recovery in medical malpractice actions....
...However, I do believe that Southwest is a "provider of health care" as contemplated by the statute of limitations for medical malpractice. Id. The medical malpractice limitations statute, section
95.11(4)(b), does not define "any provider of health care." However, section
766.102(1), Florida Statutes (1991), which sets the standards for recovery in medical malpractice actions, refers to the "negligence of a health care provider as defined in section 768.50(2)(b)." The latter section was enacted in the same bill [4] as the predecessor to section
766.102 [5] and defined health care providers to include blood banks. The fact that section 768.50 was repealed in 1986 does not invalidate the reference to that statute because as noted by the 1989 statutory reviser to section
766.102 "generally a specific cross-reference is unaffected by subsequent amendments to or repeal of the statute....
...When the medical malpractice statute of limitations was passed in 1975, the legislature did not specify whether or not blood banks were health care providers. However, it would be anomalous to conclude that when the legislature passed the predecessor to section 766.102 in 1977 it intended blood banks to be a health care provider subject to the medical malpractice standard of care and yet at the same time be subject to a different nonmedical malpractice statute of limitations because it was not a health care provider....
CopyCited 35 times | Published | Supreme Court of Florida | 1995 WL 424171
...Threlkel,
640 So.2d 183, 186 (Fla. 1st DCA 1994). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the question in the affirmative provided the children of the patient first establish that pursuant to the prevailing standard of care set forth in section
766.102, Florida Statutes (1989), a reasonably prudent physician would give such warning to his or her patient in light of all relevant circumstances....
...We conclude that to answer the certified question we must consider two questions related to duty. First, we must determine whether New's physicians had a duty to warn New of the genetically transferable nature of her disease. We find that to make this determination we must apply section 766.102, Florida Statutes (1989), which defines the legal duty owed by a health care provider in a medical malpractice case....
...The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. § 766.102, Fla....
...will be satisfied by warning the patient. Accordingly, we conclude that the trial court erred by dismissing the complaint with prejudice. Whether the Pates can recover for medical malpractice depends upon the prevailing standard of care pursuant to section 766.102....
...tion against each named defendant. For purposes of this section, good faith may be shown to exist if the claimant or his counsel has received a written opinion, which shall not be subject to discovery by an opposing party, of an expert as defined in s. 766.102 that there appears to be evidence of medical negligence.
CopyCited 25 times | Published | Supreme Court of Florida | 2006 WL 3093186
...It was only after she "presented the case . . . in a couple of different forums" that she made a determination about whether the defendant met the standard of care. [6] Allowing qualified experts to testify as to the prevailing professional standard of care under section 766.102(1), Florida Statutes (2005), does not permit experts to conduct a survey of a myriad of other experts or colleagues to derive a consensus on the standard of care....
...ving out a special rule. Experts are qualified to render opinions based on their experience, background, and training. In medical malpractice actions, the law imposes additional requirements to ensure that the expert has the necessary expertise. See 766.102(5), Fla. Stat. (2005). It would be *1041 contrary to the purpose of this statute to allow qualified experts to testify that they consulted with unidentified individuals who may or may not meet the requirements of section 766.102(5)....
...I agree with the First District. We should discharge jurisdiction. Moreover, I dissent from the majority's resolution of the issue it does consider, specifically as it applies in the instant case to testimony about the standard of care. The very definition of standard of care in section 766.102(1), Florida Statutes (2005), requires proof of what is "recognized as acceptable and appropriate by reasonably prudent similar health care providers." This obviously requires discussions with similar health care providers....
...ion on standard of care. So I wouldn't be inclined to do that for that reason. The First District agreed with the trial court's assessment: The testimony at issue in this case is an opinion regarding the proper standard of medical care. According to section 766.102(1), Florida Statutes, the prevailing standard of care for a health care provider is "that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by re...
CopyCited 22 times | Published | Florida 2nd District Court of Appeal | 1991 WL 178109
...cal malpractice" as defined in section
766.106(1)(a), Florida Statutes (1989). The plaintiff's complaint does not seek recovery based on either direct or vicarious liability under the professional standard of care for medical negligence described in section
766.102, Florida Statutes (1989)....
...Azzariti,
573 So.2d 173 (Fla. 2d DCA 1991). The plaintiff argues that chapter 766 does not apply to nursing homes or to statutory claims against nursing homes under chapter 400. We agree that a nursing home is not a "health care provider as defined in s. 768.50(2)(b)." §
766.102(1), Fla. Stat. (1989); see Silva v. Southwest Florida Blood Bank, Inc.,
578 So.2d 503 (Fla. 2d DCA 1991) (section 768.50(2)(b), Florida Statutes (1985), was not repealed to the extent that it is incorporated within section
766.102(1), Florida Statutes (1989))....
...We agree that these notice provisions may occasionally apply to a defendant that is not a health care provider, but we do not find this case to be one of those occasions. The simplest test to determine whether the notice provisions apply to a claim is whether the professional medical negligence standard of care described in section 766.102, Florida Statutes (1989), applies to the active tortfeasor. Although a nursing home is not itself a health care provider for purposes of section 766.102, it may be vicariously liable under that higher standard of care for the acts of some of its agents or employees....
CopyCited 22 times | Published | Florida 2nd District Court of Appeal | 2004 WL 2008478
...Lang-Redway,
840 So.2d 974 (Fla. 2002), the circuit court noted that the test for determining whether the presuit notice requirements of section
766.106 apply is whether the plaintiff must rely on the medical negligence standard of care as set forth in section
766.102(1)....
...by certiorari." Id. at 682 (paraphrasing Heggs,
658 So.2d at 525). Chapter 766 Presuit Requirements in General Chapter 766 presuit screening is required only where the plaintiff must rely upon the medical negligence standard of care as set forth in section
766.102(1)....
...Sunrise Cmty., Inc.,
738 So.2d 420, 421 (Fla. 3d DCA 1999). The Personal Representative persuaded the circuit court that a claim founded on section
393.13(3)(g) can be proved by showing a breach of a standard of care other than medical malpractice under section
766.102(1), namely, section
393.13(4)(c), which provides: "Each client shall receive prompt and appropriate medical treatment and care for physical and mental ailments and for the prevention of any illness or disability....
...ard. The answer in this case is not clearly established. Dr. Fassy and PMA argue that the trial court departed from the essential requirements of law by misinterpreting the significance of section
393.13(4)(c) to establish a standard of care outside section
766.102, Florida Statutes (2002)....
CopyCited 20 times | Published | Florida 5th District Court of Appeal | 2002 WL 1389304
...The applicable level of care "for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." § 766.102(1), Fla....
CopyCited 20 times | Published | Florida 4th District Court of Appeal | 1995 WL 25297
...tatutory definition of "prevailing professional standard of care" without using that expression itself, which is potentially confusing." Fla.Std.Jury Instr. (Civ.) 4.2, Comment 1. Section 768.45(1), Florida Statutes, (1985), is currently codified at section 766.102(1), Florida Statutes (1993)....
...el of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. The trial court did not read this statute, but instead, read section 766.102(3)(a), Florida Statutes (1993), pursuant to appellees' request for a special instruction: If the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in...
...if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider. By so charging the jury with the standard in section 766.102(3), the trial court generated that confusion which the standard instruction attempted to avoid by eliminating the "prevailing professional standard of care" language. Furthermore, we conclude that section 766.102(3) is not applicable under these facts [1] and contains other language which is inherently confusing....
...y, appropriate pretrial motions in limine. While some cases require that the pleadings be precluded from amendment, on remand, this case does not require such restriction. REVERSED and REMANDED. GLICKSTEIN, WARNER and PARIENTE, JJ. concur. NOTES [1] Section 766.102(3) may not apply where the alleged negligence arises from a failure to diagnose. Unlike other statutory provisions in which the legislature expressly limited the liability of a health care provider to those situations where damage results from a failure to provide medical care or omission in treatment, section 766.102(3) is silent on this point....
...Therefore, with little guidance from the legislature or predecessor courts, we determine that the plain import of "affirmative medical intervention" requires some act beyond the mere failure to diagnose and render treatment before the plaintiff's burden of proof set forth in section 766.102(3) is triggered. [2] Assuming the execution of a mammogram and performance of a physical examination to be a "diagnostic procedure" constituting an affirmative act of medical intervention, section 766.102(3) is susceptible to varying interpretations....
...ith a second opportunity to prove a breach of the professional standard of care upon showing that the physician's actions were not reasonably foreseeable, even though the action was carried out with in the professional standard of care as defined in section 766.102(1)....
CopyCited 19 times | Published | Court of Appeals for the Eleventh Circuit | 2014 A.M.C. 2710, 2014 U.S. App. LEXIS 21375, 2014 WL 5802293
...2007) (finding no clear error in determination that ambulatory
care clinic was not required under applicable standard of care to stock Mannitol,
since evidence suggested that “Mannitol was not a medication normally
administered outside of a hospital setting”); cf. Fla. Stat. Ann. § 766.102 (2013)
(defining standard of care in medical malpractice action “in light of all relevant
surrounding circumstances”)....
CopyCited 18 times | Published | Supreme Court of Florida
...2014) (declining to adopt chapter 2011-183, section 1, Laws of Florida, creating section
90.5021, Florida Statutes (2012), which establishes a "fiduciary lawyer-client privilege," and declining to adopt chapter 2011-233, section 10, Laws of Florida, creating section
766.102(12), Florida Statutes (2012), which pertains to a medical malpractice expert witness provision)....
CopyCited 16 times | Published | Florida 1st District Court of Appeal | 1996 WL 738386
...In my view, the allegations of that portion of the dismissed complaint were sufficient to establish a duty owed by Dr. Stringer to Nurse Vause and a breach of that duty which resulted in Nurse Vause's death. In 1995, the Florida Supreme Court took occasion to emphasize the provisions of section 766.102, Florida Statutes (1989) defining the legal duty owed by a health care provider in a medical malpractice case....
CopyCited 15 times | Published | Florida 2nd District Court of Appeal | 1995 WL 642743
...The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section
766.106(1), Florida Statutes (1989), is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1)....
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 1994 WL 630814
...ull adversarial proceeding. Corroboration Required Ms. Archer first argues that the (initial) omission of a corroborating medical opinion was immaterial because the complaint alleged sufficient facts to give rise to a presumption of negligence under section 766.102(4), Florida Statutes (1993), which provides: The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an in...
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 1992 WL 34638
...A certain percentage of false negatives do occur. [2] Paragraph 15 of the Swains' Second Amended Complaint reads: 15. The Defendant, CALVIN H. CURRY, M.D., was negligent and breached the prevailing professional standard of care for members of his profession, as defined by Section 766.102, Florida Statutes (1988) by failing to properly diagnose and treat his patient, Mary J....
CopyCited 14 times | Published | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 149, 2010 Fla. LEXIS 302
...providers], then, in order to prevail, (claimant) must show by the greater weight of the evidence that his or her injury was not within the necessary or reasonably foreseeable results of the treatment or procedure.] NOTES ON USE FOR 402.4a 1. See F.S. 766.102. Instruction 402.4a is derived from F.S. 766.102(1) and is intended to embody the statutory definition of "prevailing professional standard of care" without using that expression itself, which is potentially confusing. 2. The second bracketed paragraph is derived from F.S. 766.102(2)(a) and should be given only in cases involving a claim of negligence in affirmative medical intervention....
...Foreign bodies: [Negligence is the failure to use reasonable care.] The presence of (name of foreign body) in (patient's) body establishes negligence unless (defendant(s)) prove(s) by the greater weight of the evidence that [he] [she] [it] was not negligent. NOTES ON USE FOR 402.4c 1. This instruction is derived from F.S. 766.102(3)....
CopyCited 13 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 12923, 2010 WL 3447253
...See Holden,
39 So.3d at 400. Section
766.203(2) requires a corroborating affidavit from a medical expert as defined in section
766.202(6). Section
766.202(6) provides that a medical expert must meet the requirements of an expert witness as set forth in section
766.102. See Holden,
39 So.3d at 399. Section
766.102(9)(a) defines an expert in emergency medicine as a licensed physician who has "had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department." Dr....
...en he first tends to them. Dr. Sichewski testified that he "gained probably more experience on the medical evacuation flights than [he] possibly could in an emergency room." The appellees contend that a physician must fall within the requirements of section 766.102(9) in order to qualify as an emergency medicine expert. [4] However, section 766.102(12) provides that "[t]his section does not limit the power of the trial court to disqualify or qualify an expert witness on grounds other than the qualifications in this section." The appellants argue that section 766.102(12) allowed the trial court to qualify Dr. Sichewski as an expert in emergency medicine on the basis of his extensive experience as both a med-evac physician and a locum tenens emergency room physician. Under section 766.102(12), the trial court could have considered this experience in determining whether Dr....
...s, qualified him to give an opinion as an emergency medicine expert. *878 The appellees rely on this court's decision in Barrio v. Wilson,
779 So.2d 413 (Fla. 2d DCA 2000), in arguing that the trial court was limited to the requirements set forth in section
766.102(9). In Barrio, this court held that a specific provision relating to qualifications for emergency medicine experts in section
766.102 applies over a general provision relating to qualifications for a general health care expert....
...g subsection (12) in determining whether a proffered expert in emergency medicine should be qualified as such. The trial court erred in limiting its consideration of Dr. Sichewski's qualifications as an emergency medicine expert to the strictures of section 766.102(9)....
...Sichewski testified that a large medical group with contracts to staff emergency rooms would hire him to fill their emergency shifts on a temporary basis, i.e., for three days or even a week in some instances. [4] We note that in arguing that Dr. Sichewski did not qualify as an expert in emergency medicine under section 766.102(9), the appellees seemed to treat "substantial professional experience" as a legal issue for the trial court....
...But "substantial professional experience" is "determined by the custom and practice of the manner in which emergency medical coverage is provided in hospital emergency departments in the same or similar localities where the alleged negligence occurred." § 766.102(9)(b)(2)....
CopyCited 13 times | Published | Florida 5th District Court of Appeal | 2004 Fla. App. LEXIS 3847, 2004 WL 587660
...(citing Patry v. Capps,
633 So.2d 9, 13 (Fla.1994)). ORMC correctly observes that section
766.203(2), Florida Statutes (2002), provides that a claimant must establish both negligence and causation to support a claim for medical negligence. See also §
766.102(1), Fla....
...P'ship,
645 So.2d 86, 88 (Fla. 3d DCA 1994). Section
766.203(2) simply requires a corroborating opinion from a medical expert, as defined in section
766.202(5); it does not require a corroborating opinion from a medical expert as more narrowly defined by section
766.102(6)....
...college and has had professional training and experience." The statute then sets forth an alternative qualification by the use of the disjunctive article "or" followed by the noun "one," which can only, grammatically and logically in the context of section
766.102(5), be read in parallel construction with the noun "person." To satisfy this alternative qualification, the expert must be "possessed of special health care knowledge or skill about the subject upon which he is called to testify or provide an opinion."
697 So.2d at 579....
...rescription and operation, if approved by joint committee of Board of Nursing and Board of Medicine members). Under the Medical Malpractice Act, a claimant must establish both negligence and causation to support a claim for medical negligence. See §§
766.102,
766.203, Fla....
...nicalities. Archer v. Maddux,
645 So.2d 544, 546 (Fla. 1st DCA 1994). Instead, the presuit notice and screening statute should be construed in a manner that favors access to courts. Patry v. Capps,
633 So.2d 9, 13 (Fla.1994). [4] The 2002 version of section
766.102(6), Florida Statutes, does not delineate the requisite qualifications of the medical expert offering a presuit affidavit....
CopyCited 13 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 8643, 2010 WL 2382569
...rvices rendered to him. We reject this argument as it flies in the face of logic. "The question in determining if a claim is a medical malpractice claim is whether the plaintiff must rely upon the medical negligence standard of care, as set forth in section
766.102(1)...." Tenet S. Fla. Health Sys.,
991 So.2d at 399. Section
766.102 provides, in pertinent part: (1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s....
CopyCited 13 times | Published | Supreme Court of Florida | 27 Fla. L. Weekly Supp. 1030, 2002 Fla. LEXIS 2591, 2002 WL 31769252
...did not cause Mr. Redway's death. However, both claims are based upon a violation of a statutory right instead of a common law right. The six-count complaint does not name or identify any physician or other "health care provider" as a defendant. See § 766.102(1), Fla....
...Medfield, Inc.,
681 So.2d 711 (Fla. 2d DCA 1995). In general, a plaintiff must comply with these conditions if it seeks to make a defendant vicariously liable for the actions of a health care provider under the medical negligence standard of care set forth in section
766.102(1)....
...Properties. In that case, we suggested that a nursing home could be liable under a professional standard of care for the actions of a licensed nurse. See NME Properties,
590 So.2d at 441. Such a nurse is a "health care provider" for the purposes of section
766.102(1), and we continue to believe that a nursing home could be liable, on a common law claim, for the actions of such a licensed nurse....
...The Court concluded that the proper test for determining whether a defendant is entitled to the presuit requirement of notice under section
766.106(2) is "whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1)." [5] Id. at 838. Lang-Redway's cause of action arose in 1997 and is governed by section
766.102(1), which for the purpose of defining "health care provider" incorporates a cross-reference to section 768.50(2)(b), which was repealed in 1986....
...ember of its nursing staff. We disagree. As we have previously held, in order to determine whether the presuit requirements of chapter 766 apply, we look to whether the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1)....
...§
766.106(2)-(3)(a), Fla. Stat. (1997). [4] See NME Properties, Inc. v. McCullough,
590 So.2d 439, 440 n. 1 (Fla. 2d DCA 1991) ("We have recently lamented the difficulty of interpreting chapter 766 because the chapter lacks comprehensive definitions."). [5] Specifically, section
766.102(1), Florida Statutes (1997), defines this standard as follows: In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s....
...2d DCA 1991), which held "although a nursing home is not a health care provider as defined under chapter 766, the notice provisions of the Act apply to a negligence action against a nursing home if the professional medical negligence standard of care set forth in section
766.102 applied to the active tortfeasorthe agent or employee of the nursing home." Weinstock,
629 So.2d at 837 (citing McCullough,
590 So.2d at 441)....
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...nce December 1992. Dr. Oppenheim's first affidavit stated that he considers himself a "medical expert" as defined by section
766.202(5), Florida Statutes (1991). His second affidavit stated that he considered himself a "medical expert" as defined by section
766.102(2)(c)2., Florida Statutes (1991)....
...r treatment of the claimant." This statute provides a safe harbor for the attorney's good faith determination in that "good faith may be shown to exist if the claimant or his counsel has received *578 a written opinion ... of an expert as defined in s.
766.102 that there appears to be evidence of medical negligence." Section
766.102, Florida Statutes (1991), among other things, sets forth the qualifications of the "health care provider" who may testify as an expert in a medical negligence action, and who, pursuant to section
766.104(1), may provide an opinion supporting the attorney's good faith presuit belief that there has been medical negligence. As relevant to the instant action, subparagraph
766.102(2)(c)2. provides that, "[a]ny health care provider may testify as an expert in any action" even though the proposed expert witness does not meet the standards for a "similar health care provider" under subsections
766.102(2)(a) and (b) if such person: to the satisfaction of the court, possesses sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medic...
...Oppenheim does not meet the definition of a medical expert in section
766.202(5) because, at the time he signed his initial and amended affidavits, he was not "duly and regularly engaged in the practice of his profession." In response, the respondents argue that Dr. Oppenheim was qualified under section
766.102(2)(c)2....
...They note that Florida courts have made a distinction between the qualifications of a presuit investigation medical expert under section
766.202(5) and the qualifications of the expert who will be permitted to testify at a subsequent malpractice trial under section
766.102....
...college and has had professional training and experience." The statute then sets forth an alternative qualification by the use of the disjunctive article "or" followed by the noun "one," which can only, grammatically and logically in the context of section 766.102(5), be read in parallel construction with the noun "person." To satisfy this alternative qualification, the expert must be "possessed of special health care knowledge or skill about the subject upon which he is called to testify or provide an opinion." We agree with the trial court below that Dr....
...d. *580 Our task here is made more complex because chapter 766 appears to adopt two different standards for the qualifications of a "medical expert" who may issue an opinion corroborating a claimant's presuit investigationthe standard set forth in section
766.102(2)(c)2, as allowed by section
766.104(1), and that the standard set forth in section
766.202(5). [2] Nonetheless, as applied in the instant case, the standards in both sections
766.202(5) and
766.102(2)(c)2 seek to achieve the same legislative intent. Both statutes are intended to assure that the presuit investigation expert has sufficiently current knowledge of "the prevailing professional standard of care in a given field of medicine," section
766.102(2)(c)2, Florida Statutes (1991), such that the corroborating opinion can form a reasonable basis to support a claim of medical negligence....
...Thus, we reject petitioners' argument that, to qualify as an expert under section
766.202(5), a medical expert must be "regularly engaged in the practice of his profession" at the time the corroborating opinion and affidavit are signed. We believe it is logical that the legislature intended the more specific time period in section
766.102(2)(c)2 to define when the proposed expert must have been "engaged in the practice" under section
766.202(5)....
...Thus, an expert satisfies the section
766.202(5) requirement of engagement in the practice so long as the expert's "active involvement" in the practice occurred "within the five-year period before the incident giving rise to the claim," as provided by section
766.102(2)(c)2. Here, Dr. Oppenheim meets each of the alternative requirements for qualification as a "medical expert" under section
766.202(5). His opinion, therefore, satisfies the requirements of both sections
766.102(2)(c)2....
...in denying the petitioners' motions. PETITION DENIED. JOANOS, J., concurs. WOLF, J., specially concurs with written opinion. WOLF, Judge, specially concurring. While I do not agree with the majority that we should engraft the definition of expert in section
766.102(2)(c)2, Florida Statutes, onto the definition of expert contained in section
766.202(5), Florida Statutes, in light of the ambiguous wording of section
766.202(5), Florida Statutes, I agree with the alternative reason for denying the petition....
...3d DCA 199) (quoting 49 Fla.Jur.2d, Statutes § 137 at 179 (1984)). [2] Other courts have also commented upon the imprecise language in chapter 766, Florida Statutes. See, e.g., Catron v. Roger Bohn, D.C., P.A.,
580 So.2d 814, 817 (Fla. 2d DCA 1991) ("[S]ection
766.102 and many other sections of chapter 766 are appalling in their lack of definition of critical terms and in their total lack of consistency in the manner of use and apparent meaning of those critical ......
CopyCited 12 times | Published | Supreme Court of Florida | 25 Fla. L. Weekly Supp. 911, 2000 Fla. LEXIS 2040, 2000 WL 1588051
...QUINCE, J., concurs in result only. NOTES [1] The statute of limitations for medical malpractice actions is two years. See §
95.11(4)(b), Fla. Stat. (1999). However, the 90-day presuit period triggered by the filing of the notice of intent required under section
766.102(6) tolls the limitations period....
CopyCited 12 times | Published | Florida 5th District Court of Appeal | 1995 Fla. App. LEXIS 10641, 20 Fla. L. Weekly Fed. D 2304
...Foss,
655 So.2d 1151 (Fla. 5th DCA 1995); Shands Teaching Hospital and Clinics, Inc. v. Barber,
638 So.2d 570 (Fla. 1st DCA 1994); NME Hospitals, Inc. v. Azzariti,
573 So.2d 173 (Fla. 2d DCA 1991). This is apparently a case of first impression in this state. Section
766.102, Florida Statutes (1993) sets out the standards for recovery in medical negligence cases....
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 2007 WL 624722
..." Fassy,
884 So.2d at 364 (quoting J.B.,
635 So.2d at 947) (quotation marks omitted) (alteration in original). "Chapter 766 presuit screening is required only where the plaintiff must rely upon the medical negligence standard of care as set forth in section
766.102(1)." Fassy,
884 So.2d at 364....
..."The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section
766.106(1) . . . is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1)." Liles v. P.I.A. Medfield, Inc.,
681 So.2d 711, 712 (Fla. 2d DCA 1995). Section
766.102(1) provides that *369 the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider....
...es, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. Garcia does not dispute that the petitioners are considered health care providers for purposes of the presuit screening requirements of chapter 766. Section
766.102(1) refers to the definition of health care provider in section
766.202(4), which includes physical therapists licensed under chapter 486 and professional association partnerships of physical therapists....
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 2017 WL 2664320, 2017 Fla. App. LEXIS 8924
...the trial court's order that granted
a motion for rehearing filed by respondent Maria Johnson Lynch and reinstated her
medical malpractice complaint against FOI. Because the expert affidavit submitted by
Lynch did not satisfy the requirements of section 766.102(5)(a), Florida Statutes (2015),
we must grant the petition and quash the trial court's order reinstating the complaint.
Lynch became a patient of FOI after she broke her toe....
... a person duly and regularly engaged in the practice of his or
her profession who holds a health care professional degree
from a university or college and who meets the requirements
of an expert witness as set forth in s. 766.102.
(Emphasis added.) In turn, section 766.102 sets forth the requirements for an expert
witness as follows:
(5) A person may not give expert testimony
concerning the prevailing professional standard of care
unless the person is a h...
...While both
doctors' practices focus primarily on foot and ankle surgery, these two doctors have
different training and practice in different specialties. Therefore, the affidavit from Dr.
Overley could not meet the requirements of the plain language of section 766.102(5),
and the noncomplying affidavit was insufficient on its face to constitute the required
corroboration of reasonable grounds to initiate medical negligence litigation....
...She argues that their different training and different titles
should not matter. However, this argument is based on nothing more than Lynch's
opinion, which cannot supplant the legislative intent evidenced by the amendments
made by the legislature to section 766.102 in 2013.
Prior to 2013, section 766.102(5) provided that if the intended defendant
was a specialist, the corroborating medical expert opinion had to come from a health
care provider who specialized in either the same specialty or "in a similar specialty that
includes the evaluation, diagnosis, or treatment of the medical condition that is the
subject of the claim." § 766.102(5)(a)(1), Fla....
...(2012). In addition, the statute
provided that it did "not limit the power of the trial court to disqualify or qualify an expert
-5-
witness on grounds other than the qualifications in this section." § 766.102(14), Fla.
Stat....
..." to qualify as an expert witness
in a medical malpractice case. See ch. 2013-108, § 2, at 1466, Laws of Fla. The
legislature also deleted the provision giving trial courts the authority to qualify an expert
on grounds other than those listed in section 766.102....
...Finally, we note that while this case was pending, the Florida Supreme
Court issued its decision in In re Amendments to the Florida Evidence Code,
210 So. 3d
1231, 1239 (Fla. 2017), in which it specifically declined to adopt the "same specialty"
amendment to section
766.102(5)(a) "to the extent it is procedural." However, that
decision did not address the constitutionality of the statute, see id....
...2016) (noting that a Florida
Supreme Court rules decision declining to adopt a statutory amendment to the extent it
is procedural does "not vitiate or overturn the statute" and "the statute remains the law
in Florida"). Here, Lynch did not raise the constitutionality of section 766.102(5)(a)(1) in
either the trial court or in her response to FOI's petition.1 Therefore, resolution of that
issue must wait for a case in which the issue is properly raised and argued.
For all of these reasons, we grant F...
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 10454, 2010 WL 2795380
...766.202(6)." The latter statute would require such an expert to be "a person duly and regularly engaged in the practice of . . . her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102." According to her CV, Dr....
...ars of nursing experience in both the clinical and academic settings. She served as an operating room staff nurse from 1990 to 2004. She has conducted extensive research in the field of nursing and is widely published in journals and academic texts. Section
766.102(5), Florida Statutes (2009), as referenced in section
766.202(6), defines the "requirements of an expert witness....
..."Health care provider" includes "any person licensed under . . . part I of chapter 464," which is the Nurse Practice Act, sections *117
464.001-.027, Florida Statutes (2009). See §
766.202(4), Fla. Stat. (2009). Although not an issue in this case, we take note that the "licensed provider" referenced in section
766.102(5) does not encompass a universe limited only to Florida licensees. In fact, under the legislative directives concerning presuit investigation, where the trial court finds that the corroborating expert did not meet the requirements of section
766.102(5), the court must report such expert to the Division of Medical Quality Assurance, and "[i]f such medical expert is not a resident of the state, the division shall forward such report to the disciplining authority of that medical expert." §
766.206(5)(a), Fla....
...edure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider." § 766.102(2)(a), Fla....
...(2009). Reaching the central statute as to this dispute, if the health care provider against whom the testimony is offered is "a health care provider other than a specialist or a general practitioner"here, it is the nursing staffthe criteria in section 766.102(5)(c), Florida Statutes (2009), require the expert witness to have "devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action" to one or more of three types of activities enumerated in subsections (5)(c)1.-3....
...atients in circumstances similar to that of [Mr.] Rhodin." The CV lists Dr. Byrne's experience as an Independent Nurse Consultant since 1993. The record thus demonstrates Dr. Byrne's credentials satisfy the substantive requirements, at the least, in section 766.102(5)(c)1....
...not contested whether nurse Byrne "qualifies under 102." Counsel instead challenged Dr. Byrne's qualifications under section
766.202, Florida Statutes (2009), which defines "medical expert" in subsection (6) and cross-references the requirements of section
766.102, Florida Statutes (2009). Although our review of *118 the trial court's ruling has required us to consider the requirements of section
766.102, petitioner's concession at the hearing suggests further focus on Byrne's qualifications "under 202." The term "medical expert" as used in section
766.202(6) is a term of art delineated by that statute....
...First, the person must be "duly and regularly engaged in the practice of his or her profession." Second, the person must hold "a health care professional degree from a university or college." Third, the person must meet the requirements of an expert witness addressed in section 766.102....
...Because Byrne's affidavit did not violate the disclosure requirement, we offer no opinion as to remedy where such a violation is actually made out. 3. Whether Dr. Byrne Was Duly and Regularly Engaged The third claimed departure from the essential requirements of law relates to whether, under section 766.102(5)(c), Florida Statutes (2009), the facts show nurse Byrne "devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action" to at least one of the three alternatives set forth in sub-subsection (5)(c)1.-3....
...i review because it challenges the trial court's finding of sufficient evidence indicating Byrne met the requirements for a "medical expert." See Oken,
23 So.3d at 144-45; Abbey,
16 So.3d at 1055. Respondents note, in any event, that the language in section
766.102(5)(c)2....
...is not so narrow as suggested by Baptist and, in fact, contemplates the instruction of students in a qualifying, accredited school or program. Respondents' interpretation of the statutes avoids a conflict *120 between the statutes by reconciling the "devoted professional time" requirement of section
766.102(5)(c) and the definition of "practice of professional nursing" in section
464.003(3)(a)3., the latter of which defines the practice to include "supervision and teaching" of nursing....
...Given Dr. Byrne's extensive and varied credentials, the trial court did not misconstrue the statutes by concluding that Dr. Byrne is "duly and regularly engaged" in the practice of nursing under section
766.202(6) and satisfies the temporal requirements of section
766.102(5)(c)....
CopyCited 12 times | Published | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 20157, 2014 WL 6990548
...cause: (1) the allegations of the complaint arise out of the rendering of, or the failure to render, medical care or services; (2) to prevail on their claims, the Dumigans would be required to address the medical negligence standard of care found in section 766.102(7), Florida Statutes (2013); and (3) the trial court’s finding that the Dumi-gans’ claims against HRMC are for product liability and not medical negligence contradicts well-established Florida law regarding strict liability and healthcare providers....
.... There is no dispute that the Dumigans did not provide presuit notice. . We do not consider the merits of any of the causes of action. Instead, we address only the issue of presuit notice. . The medical malpractice standard of care is set forth in section 766.102(1), which provides: In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s....
...The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. § 766.102(1), Fla....
CopyCited 12 times | Published | Florida 4th District Court of Appeal | 1995 WL 455437
...n vascular surgery and the applicable standard of such care. Thus, the judge refused to allow the jury to consider Dr. Wengler in apportioning fault. The case proceeded to trial. At the close of the evidence the court refused to instruct the jury on section 766.102(4) Florida Statutes (1993). The jury returned a verdict finding Dr. Greene 70% responsible and Dr. Haas 30% responsible and awarded substantial damages to the child and his mother. The judge later denied post trial motions for a new trial or remittitur. Section 766.102(1), Florida Statutes (1993), places on the claimant in a medical malpractice action the burden of "proving by the greater weight of the evidence that the alleged actions of the [physician] represented a breach of the prevailing profes...
...Defendants were expressly foreclosed from defending to the jury on the basis that jointly they were not negligent and that the patient's medical injury resulted from the *1133 negligence of a third party. This was not only unfair, but it was also not required by anything contained in section 766.102....
...We believe that the judge in so doing confused the ultimate burden of proof on the plaintiff in a medical malpractice action with the entirely separate subject of the physicians' defenses and the evidence allowable to sustain these defenses. As we have just seen, subsection (3) of section 766.102 explicitly provides that the claimant must show that the injury resulted from a departure from the applicable standard of care and that it was not within the expected or foreseeable results of the procedure....
...In excluding defendants' evidence in this case, the trial judge accepted the argument of plaintiff that the evidence was not admissible because it is couched in terms of the "possible" rather than the time-honored locution "reasonable medical probability." We note that section 766.102 does not use the formulation "reasonable degree of medical probability." [1] Rather it requires the claimant to prove "by the greater weight of the evidence that the alleged actions of the [physician] represented a breach of the preva...
CopyCited 12 times | Published | Florida 4th District Court of Appeal | 2004 WL 736435
...the injury occurred while she was under the care of a hospital employee after receiving dialysis treatment. We disagree and deny the petition. The allegations of the complaint do not seek to state a cause of action for *731 medical negligence under section
766.102, Florida Statutes (2001); therefore, the trial court was correct in denying the motion to dismiss. The test for determining whether the defendant is entitled to the benefit of the presuit screening requirements of section
766.106 is whether the defendant is liable under the medical negligence standard of care set forth in section
766.102(1)....
...The gravamen of Serratore's complaint for negligence does not arise out of the receiving of medical care nor does it require that Serratore prove that the actions of the St. Mary's employee deviated from an accepted standard of medical care, which is required under section 766.102(1)....
...There are no such allegations in the instant case. St. Mary's has failed to demonstrate that the lower court's denial of its motion to dismiss departs from the essential requirements of law and accordingly, we deny the petition. WARNER and GROSS, JJ., concur. NOTES [1] Section 766.102(1) states: In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 21 Fla. L. Weekly Fed. D 2406
...l care. We considered the same issue in NME Properties, Inc. v. McCullough,
590 So.2d 439, 440 (Fla. 2d DCA 1991). There, in regard to a nursing home (East Manor), we said: Although a nursing home is not itself a health care provider for purposes of section
766.102, it may be vicariously liable under that higher standard of care for the acts of some of its agents or employees....
CopyCited 11 times | Published | Florida 3rd District Court of Appeal | 2005 WL 1631086
...st her as expressly mandated by Chapter 766. In fact, and as the most recent amendments to Chapter 766 confirm, the expert opinion affidavit does not suggest that the expert rendering the opinion is qualified to opine as to a nurse practitioner. See § 766.102(6), Fla....
...nurse practitioners"); see also §
766.203(2), Fla. Stat. (2004) (requiring a corroborating opinion from a medical expert as defined in section
766.202(6)); §
766.202(6), Fla. Stat. (2004)(defining a medical expert as one who meets the requirements of section
766.102)....
CopyCited 10 times | Published | Florida 5th District Court of Appeal | 1995 Fla. App. LEXIS 9715, 1995 WL 544149
...The Weinstock court found that the presuit provisions of chapter 766 did not apply to a licensed clinical psychologist because psychologists are not included in the various chapter 766 definitions of health care provider. In the instant case, the entity being sued is a hospital, and sections
766.101(1)(b),
766.102(1) and
766.105(1)(b)(3) each define hospitals as health care providers....
...ce provisions may ... apply to a defendant that is not a health care provider," and stated, "[t]he simplest test to determine whether the notice provisions apply to a claim is whether the professional medical negligence standard of care described in section 766.102, Florida Statutes (1989) applies to the active tortfeasor." Id....
...action, even if the employer does not fall within the statutory definition of health care provider. As noted by the McCullough court, such a defendant may be vicariously liable under the professional medical negligence standard of care set forth in section 766.102(1) when its agent or employee, who is a health care provider, negligently renders medical care or services....
...Thus we agree with the McCullough court that the proper test for determining whether a defendant is entitled to notice under section
766.106(2) is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1). Weinstock,
629 So.2d at 838. We believe that Goldman's interpretation of McCullough that the "active" tortfeasor must be a health care provider in order for chapter 766 to apply is incorrect. Section
766.102(1) provides: In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider defined in s....
...for not having the mammography equipment certified or properly calibrated. Ultimately, however, a hospital, even in providing improperly calibrated equipment, is acting through its agents and employees. We conclude that the legislature, in enacting section 766.102, and the Medical Malpractice Reform Act in general, intended that the negligence of the hospital's agents acting in the course of their employment should be treated as the negligence of the hospital, and that the chapter's presuit req...
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 1997 WL 133789
...me as the court deems just under the circumstances. GLICKSTEIN and DELL, JJ., concur. NOTES [1] The pleadings in the trial court show two plaintiffs, Carl Shell, Sr., and Carl Shell, Jr., but the petition in this court names only the father. [2] See § 766.102(1), Fla.Stat.(1995) ("In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s....
CopyCited 10 times | Published | Florida 3rd District Court of Appeal | 2000 WL 227971
...se she was unconscious during the surgery and because a foreign body (i.e. the surgical mesh that was placed in her body as part of the hernia repair), was found in her body during the third surgery, which is prima facie evidence of negligence under section 766.102(4), Florida Statutes (1993)....
...explained injury which is unrelated to the surgical procedure or treatment which justifies the res ipsa inference. See Marrero v. Goldsmith,
486 So.2d 530 (Fla.1986); Borghese v. Bartley,
402 So.2d 475 (Fla. 1st DCA 1981). Moreover, the provision of section
766.102(4) that discovery of a "foreign body" such as surgical paraphernalia *137 is prima facie evidence of negligence, is clearly inapplicable in a case such as this where the mesh was intentionally placed in Miller's body as part of her tr...
...ndant at the time it cause the injury, you may infer that the defendant was negligent unless, taking into consideration all of the evidence in the case, you conclude that the occurrence was not due to any negligence on the part of the defendant. [2] Section 766.102(4) provides in pertinent part: (4) The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was p...
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2005 WL 1521251
...The prevailing professional standard of care is that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. See § 766.102(1), Fla....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2001 WL 1189013
...a prima facie case. Absent the Valcin presumption, appellant correctly notes that appellees failed to prove the first two elements. They did not present any expert testimony that appellant's treatment fell below the appropriate standard of care. See § 766.102, Fla....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 2000 WL 1528020
...The Clarkes' negligence action sought to recover damages for injuries suffered by Mrs. Clarke while a patient in Lake Shore Hospital when she fell as she walked from her hospital bed to the bathroom. Because the allegations of the complaint do not seek to state a cause of action for medical negligence under section
766.102, we agree with the trial court that the complaint does not provide a basis to apply the presuit *1252 conditions of section
766.106....
...Medfield, Inc.,
681 So.2d 711, 712 (Fla. 2d DCA 1995)("The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section
766.106 ... is whether the defendant is... liable under the medical negligence standard of care set forth in section
766.102(1)."); Feifer v....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 2006 Fla. App. LEXIS 18333, 2006 WL 3078909
...Halifax Med. Ctr., Inc.,
662 So.2d 367, 371 (Fla. 5th DCA 1995). In order to determine whether the pre-suit requirement of chapter 766 applies, the question is whether the plaintiff must rely upon the medical negligence standard of care, as set forth in section
766.102(1), Florida Statutes (2005), [1] in order to succeed *470 in the plaintiff's case....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 2005 WL 473915
...ns, including cerebral palsy, epilepsy and blindness. It is not a requirement for expert medical testimony based on personal experience that the expert previously encountered precisely the presentation of medical conditions at issue in the case. See § 766.102(5)(a)(1), Fla....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1993 WL 247134
...1st DCA 1985), opinion adopted,
488 So.2d 824 (Fla. 1986). As an example, Professor Ehrhardt observes: "The Florida Legislature has enacted special limitations on the qualifications of experts in medical malpractice actions." Charles W. Ehrhardt, Florida Evidence § 702.1, at 468 (1992). Thus, section
766.102(2)(c), Florida Statutes (1991), restricts the expert testimony of health care providers to "similar health care providers," as defined in section
766.102(2)(a) or (b), as practitioners in the malpractice defendant's speciality or the same school of practice....
...nt training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine... . within the 5-year period before the incident giving rise to the claim." Although section 766.102(2)(c) relaxes the general rule precluding one who is not a *1386 similar health care provider from offering an opinion against one from a different medical discipline or specialty, it is important to observe that the provision require...
...Kirschner, a physician within the same practicing peer group, the JCC's order denying the claim for chiropractic treatment should be reversed and the cause remanded with directions that the claim be approved. NOTES [1] The general rule has been modified by statute in Florida. See § 766.102(2), Fla....
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 2001 WL 109105
...NOTES [1] Johnson held that a retail pharmacist has no general duty to warn a customer or his physicians of potential adverse prescription drug reactions. It did not involve the voluntary undertaking theory of liability. [2] §§
465.002,
766.101(1)(b), Fla. Stat. (1999). [3] §
766.102(1), Fla....
CopyCited 8 times | Published | Supreme Court of Florida
witness as set forth in s.
766.102." Section
766.102 sets forth requirements for testifying experts
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 15862, 2011 WL 5108524
...of Am., Inc.,
693 So.2d 66 (Fla. 5th DCA 1997). The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section
766.106 is whether a defendant is liable under the medical negligence standard of care set forth in section
766.102(1)....
...tice presuit requirements or the two-year statute of limitations. We accordingly reverse and remand for a decision on the merits. REVERSED. LAWSON, J., and ZAMBRANO, R.A., Associate Judge, concur. . Chapter 766.02 et seq., Florida Statutes (2003). . Section 766.102(1), Florida Statutes (2008), states: (1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1991 WL 80036
...e have a transcript of the summary judgment hearing to illuminate his reasoning. We must conclude, however, from the arguments presented to us here that Dr. Lusk's affidavit was rejected because the trial judge concluded that under the terms *816 of section 766.102(2)(a), (b), and (c), Florida Statutes (Supp....
...Lusk was not qualified as an expert permitted to testify in a medical negligence action as a "similar health care provider" similar to Dr. Bohn's chiropractic specialty, nor did Dr. Lusk qualify as an expert that was "not a similar health provider" but permitted to testify because of the exception provided in section 766.102(2)(c)2....
...Bohn, it is a disputed question of fact as to when and what treatment he gave to Mr. Catron and whether he timely or ever actually referred Mr. Catron to a neurologist. Under those circumstances, it appears conclusively that Dr. Lusk's affidavit should have been considered pursuant to the provisions of section 766.102. Two provisions of section 766.102 appear to mandate the consideration of Dr. Lusk's affidavit in this case. Subsection 766.102(1) requires that a person seeking damages based on death or personal injury resulting from the negligence of a health care provider must establish that health care provider's negligence based upon proof that the health care provider breached the prevailing standard of care that is recognized by reasonably prudent "similar health care providers" as acceptable and appropriate. Under section 766.102(2)(c)1, a "similar health care provider" may testify as an expert in such an action. The phrase "similar health care provider" is defined in subsection 766.102(2), which is comprised of paragraphs (a) and (b), and a concluding qualifying sentence....
...Paragraph (b) applies to those cases in which the allegedly negligent health care provider is or does hold himself out to be a medical specialist (a "specialist"). Thus, the definition of medical specialist or specialty would appear critical. At this point, it is appropriate for us to note that section 766.102 and many other sections of chapter 766 are appalling in their lack of definition of critical terms and in their total lack of consistency in the manner of use and apparent meaning of those numerous critical and undefined terms....
...A physician certified to limit his practice to a specified field... ." The argument could thus be made that chapter 460, Florida Statutes (1987), which defines and regulates the practice of chiropractic, places a chiropractic physician in the category of a specialist as is contemplated by section 766.102(2)(b) when that section discusses those who practice in a "medical specialty." That would certainly appear to be a proper classification when a chiropractor is compared to a medical doctor limited to a general practice (commonly described in the *818 medical profession as a "G.P.") and normally only considered to be a "generalist" as defined under 766.102(2)(a). Since we find, however, that the admission of Dr. Lusk's affidavit does not depend on whether Dr. Bohn may be considered a medical specialist, it is not necessary for us to determine that the legislature intended by its enactment of section 766.102(2)(b) to characterize the practice of chiropractic as a "medical specialty" as that term is used in subsection 766.102(2)(b). We conclude nevertheless that Dr. Lusk was a "similar health care provider" as contemplated by subsection 766.102(2). Subsection 766.102(2) concludes its provisions with this qualifying statement: "However, if any health care provider described in this paragraph is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a `similar health care provider.'" Under normal methods of statutory construction, we should conclude that that statement was meant to apply only to subsection 766.102(2)(b)....
...The statement refers to "any health care provider described in this paragraph. ..." (Emphasis supplied.) It also speaks to the health care provider treating or diagnosing "for a condition not within his specialty. ..." (Emphasis supplied.) However, limiting that qualifying statement to subsection 766.102(2)(b) and not applying it also to subsection 766.102(2)(a), in our opinion, defies logic and leads to an unreasonable result....
...e could not testify regarding the prevailing professional standard of care for a general practitioner who is diagnosing or treating a condition that is within that specialist's specialty. We, therefore, interpret that statement to apply to all of subsection 766.102(2)....
...tor such as Dr. Bohn in his examination and treatment of Mr. Catron was that Mr. Catron should have been referred to a neurologist for further examination and treatment, then Dr. Lusk, as a neurologist, was, pursuant to that last quoted statement of section 766.102(2), a "similar health care provider." He was, therefore, qualified by section 766.102(2)(c)1 to testify as an expert in this case. *819 Even if our conclusions based upon statutory interpretations so far are incorrect and Dr. Lusk is not a "similar health care provider" authorized by section 766.102(2)(c)1 to testify as an expert in an action against a chiropractor, he would certainly have been qualified to testify by section 766.102(2)(c)2. The pertinent sections of section 766.102(2)(c) provide: (c) The purpose of this subsection is to establish a relative standard of care for various categories and classifications of health care providers....
...Boritz's affidavit and chapter 460 define the practice of chiropractic so as to clearly place it as a "related field of medicine" to neurology thereby qualifying Dr. Lusk to testify. Dr. Lusk, the treating neurologist to whom Mr. Catron was referred by another chiropractor, clearly met the other requirements of section 766.102(2)(c)2....
...context of this case. Since Dr. Lusk's affidavit was competent evidence and created a disputed issue of fact, I concur in the reversal of the summary judgment. I also agree that the legislature has not made our task easy by its choice of language in section 766.102, Florida Statutes (Supp....
...[1] In chapter 766, "medicine" *820 appears to include all "health care providers," and not merely those who practice "medicine" under chapter 458. Thus, I agree that a chiropractor who is licensed under chapter 460 may commit "medical negligence" for purposes of section 766.102, Florida Statutes (Supp. 1988). To the extent that the majority's opinion suggests that an ordinary chiropractor may be a "specialist" for purposes of section 766.102(2)(b), Florida Statutes (Supp. 1988), I disagree. In the absence of statutory definitions, I believe that chiropractic is a "discipline" or "school of practice" and that a typical chiropractor is a generalist subject to the local standard of care defined in section 766.102(2)(a), Florida Statutes (Supp....
...Fla. Admin. Code Rule 21D-15.001(2)(e). If chiropractic is a specialty, I do not know the "discipline" or "school of practice" in which it is a specialty. My primary disagreement with the majority concerns its interpretation of the final sentence in section 766.102(2)(b), Florida Statutes (Supp. 1988). I believe that it applies only to true specialists. I do not agree that any compelling logic requires us to disregard the placement of that sentence and the rule of statutory construction which would limit its application only to section 766.102(2)(b)....
...fessional decision to refer a patient to a specialist. I do not believe that "logic and reason mandate" this result. Although Dr. Lusk's qualifications clearly allow him to testify as an expert in a "related field of medicine," the final sentence of section 766.102(2)(b) does not make these two physicians "similar health care providers." The final sentence of that paragraph states: "However, if any health care provider described in this paragraph is providing treatment or diagnosis for a conditi...
...tion shall be considered a `similar health care provider.'" This language was added to the statute in 1985. Ch. 85-175, § 10, Laws of Fla. I have not located any legislative history which reveals its intended purpose. [3] Subsections (1) and (2) of section 766.102, Florida Statutes (Supp....
...concept of "similar health care provider" into categories of generalists and specialists. The legislature created this division primarily to "establish a relative standard of care for various categories and classifications of health care providers." § 766.102(2)(c), Fla. Stat. (Supp. 1988). In essence, specialists are held to a higher, or at least more specialized, national standard of care while generalists are held to a less specialized, community standard. The final sentence in section 766.102(2)(b) concerns a true specialist who elects to wander outside his or her area of specialty....
...en health care specialties. If a patient goes to a specialist, he or she may fairly anticipate specialized care. To encourage specialists to limit their practice to their true specialties, I believe the legislature has inserted the final sentence in section 766.102(2)(b) to subject a specialist to the national standard of care in any field in which he or she opts to practice....
...se does, render the neurosurgeon a physician who "practice[s] ... in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine," i.e., chiropractic. § 766.102(c)(2), Fla....
...As a result, the majority's opinion will now subject all general practice medical doctors to the national standard of care owed by a specialist concerning the general practitioner's decision to refer a patient to the relevant specialist. I see no statutory or logical basis for this rule of law. NOTES [1] 766.102 Medical negligence; standards of recovery....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 9131, 2010 WL 2507279
...a verified written medical expert opinion from a medical expert as defined under section
766.202(6). §
766.203(2). Section
766.202(6), in turn, defines a "medical expert" as someone who meets the requirements of an expert witness as set forth under section
766.102....
...The circuit court conducted a hearing and entered an order granting their motion to dismiss. Yet the order did not contain any reasoning behind the circuit court's determination. The parties, in their argument before this court, cite the circuit court's application of section 766.102(5) as the reason for the dismissal. The pertinent part of section 766.102(5) provides: A person may not give expert testimony concerning the prevailing professional standard of care unless that person is a licensed health care provider and meets the following criteria: (a) If the health care provider agains...
...medical condition that is the subject of the claim and have prior experience treating similar patients[.] (Emphasis added.) Dr. Gu and the Malka Institute contend Dr. Baker fails to meet the "similar specialty" requirement of an expert witness under section 766.102(5) because he is a specialist in the field of emergency medicine, not neurology....
...opinion under section
766.203(2). As the First District noted in Oken v. Williams,
23 So.3d 140, 146 (Fla. 1st DCA 2009), the term "similar specialty" has neither been defined by statute nor case law following the Florida Legislature's amendment of section
766.102(5) in 2003....
...a specialist treating a patient in an emergency department capacity. In light of the policy enunciated in Kukral that the medical malpractice statutory scheme be liberally interpreted,
679 So.2d at 284, we do not read the term "similar specialty" in section
766.102(5) with the same rigidity as the First District did in Oken....
...766. Upon remand, the circuit court shall consider at an evidentiary hearing whether Mr. Holden's corroborating affidavit from an emergency department physician reasonably complied with the "similar specialty" requirement of an expert witness under section 766.102(5). Accordingly, we reverse the order of dismissal and remand for further proceedings. KELLY, J., Concurs. CASANUEVA, C.J., Concurs in result only. NOTES [1] See § 766.102(9)....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 7735, 2010 WL 2178581
...a health care provider: Did the psychologist provide the level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful psychologists? See § 766.102(1), Fla....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1994 WL 257045
...dering of, or the failure to render, medical care or services." A person seeking recovery for injury resulting from medical malpractice must prove that the injury resulted from a breach of the prevailing professional standard of care as set forth in section 766.102(1), Florida Statutes....
...The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section
766.106, Florida Statutes, is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1), Florida Statutes....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1998 WL 5394
...W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 32 (5th ed.1984); Andrew Clifford Greenberg, Florida Rejects a Tarasoff Duty to Protect, 22 Stetson L.Rev. 239, 270 (1992). The medical negligence standard of recovery is set forth in section 766.102(1), Florida Statutes, which states in part: (1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider ......
...Recently, in Green v. Ross,
691 So.2d 542 (Fla. 2d DCA 1997), the Second District agreed with, and relied upon, the majority opinion in Boynton. Because we believe the amended complaint sufficiently states a cause of action for medical negligence pursuant to section
766.102(1), Florida Statutes, we find it unnecessary to reach the Boynton/Tarasoff "duty to warn" issue....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2004 WL 1809862
...her doctors. The duty that a typical doctor owes to a patient is governed by the professional negligence standard, which generally requires that the doctor provide that level of care that a similar and reasonably careful physician would provide. See § 766.102(1), Fla....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 28 Fla. L. Weekly Fed. D 2545
...Therefore, we grant the Petitioner/Defendant's writ of certiorari, quash the trial court's order, and remand with directions to grant the motion to dismiss. WOLF, C.J., LEWIS and POLSTON, JJ., concur. NOTES [1] "Section 768.50(2)(b) was repealed except to the extent that it is incorporated by reference into section
766.102(1)." Weinstock,
629 So.2d at 837 n....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1995 WL 1636
...s only acting in his role as a distributor of a product when in fact the distribution was incidental to the provision of medical services. While the language of the medical malpractice statute refers to actions for damages resulting from negligence, section 766.102, Florida Statutes (1993), courts of this state have nonetheless rejected the application of strict liability to health care providers alleged to be involved in the distribution of the product....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2006 WL 3780714
...Rather, this is a simple negligence case involving Allen's contracting of food poisoning after his hospital admission for an unrelated condition. Therefore, any liability of LRMC for Allen's demise is not determined under the medical negligence standard of care established in section 766.102(1)....
CopyCited 6 times | Published | Florida 5th District Court of Appeal
...a physician who specializes in plastic surgery, offered opinions regarding the medical care provided by Dr. Riggenbach, who specializes in orthopedic surgery. Because Rhodes failed to comply with the requirement of sections
766.203, 776.202(6), and
766.102(5)(a), Florida Statutes (2014), that he provide a written medical expert opinion from a specialist in the same specialty as the defendant health care provider, the complaint should have been dismissed, unless those statutory provisions are found to be unconstitutional for the reasons previously asserted by Respondent....
...Statutory Evolution of Expert Witness Specialty Requirement Prior to July 2013, the presuit statute authorized opinion testimony from an expert witness against the defendant doctor *554 who practiced in "the same or similar specialty " as the defendant doctor. § 766.102(5)(a), Fla. Stat. (2012) (emphasis added). The phrase "similar specialty" was defined as a specialty that included the evaluation and treatment of the medical condition that was the subject of the medical negligence claim. Id. The 2012 version of section 766.102 also allowed the trial court to determine whether the expert was qualified on grounds other than those specified in the statute. Id. § 766.102(14)....
...perience as a medical evacuation flight surgeon in order to admit his testimony, although he was testifying against an emergency room physician.
45 So.3d 873 , 877 (Fla. 2d DCA 2010). The Second District found that under the then-existing version of section
766.102, the emergency medicine experience of the proposed expert witness was sufficient to admit his testimony, as it fell under the "grounds other than the qualifications in this section" language, which in 2010 was found in section
766.102(12)....
...timony is offered; and 2. Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to: a. The active clinical practice of, or consulting with respect to, the same specialty ; § 766.102(5), Fla....
...Unless the trial court finds the relevant statutes unconstitutional, it shall enter an order dismissing Respondent's complaint with prejudice. PETITION GRANTED, ORDER QUASHED, REMANDED WITH INSTRUCTIONS. ORFINGER and SASSO, JJ., concur. The Staff Analysis for the Senate Bill that amended section 766.102 in 2013 specifically explained the effect of the amendment: The bill amends s. 766.102(5), F.S., to limit the class of specialists qualified to offer expert testimony in a medical negligence action against a defendant specialist, to those specialists who practice in the same specialty as the defendant. The bill repeals s. 766.102(14), F.S....
...Adventist Health Systems/Sunbelt, Inc. and reinstating the holding in Barrio v. Wilson . Accordingly, the repeal of the subsection appears to remove the discretion of the court to qualify or disqualify an expert witness on grounds other than the specific qualifications specified in ss. 766.102(5) -(9), F.S....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1997 WL 133934
...riod provided for filing suit." Kukral v. Mekras,
679 So.2d 278, 283 (Fla. 1996); Royle v. Florida Hospital-East Orlando,
679 So.2d 1209, 1211-12 (Fla. 5th DCA 1996). [2] The definitions from repealed section 768.50(2)(b) have been incorporated into section
766.102(1), Florida Statutes (1991).
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1995 WL 366340
...Although the word "sanction" appears in the title to this rule, it is not used in its text. The drafters employed it as an abbreviated reference to some of the rule's provisions, but it is not very rigorous terminology. I suggest that the venerable "remedy" is much better and more accurate. [6] See, e.g., §§
627.737(2) and
766.102, Fla. Stat. (1993). Note that section
766.102(6)(c) does not directly require the testimony of an expert witness so much as it relates instead to the qualifications of the witness....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2007 WL 1687768
...In fact, the legislature has defined standard of care as "that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." § 766.102(1), Fla....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1997 WL 14220
...Weintzen would be qualified to testify as a standard of care expert under this version of the statute. But in 1988, the statute was amended and renumbered. The legislature added an additional qualification for expert witnesses who testify in actions against emergency room doctors. Section 766.102(6)(a), Florida Statutes (1988), requires that the expert witness must "have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department." The defense argued, and the trial court agreed, that Dr. Weintzen was not qualified under the amended statute because he had not been assigned to an emergency room within the preceding five years. Section 766.102(6)(a) became effective on February 8, 1988, and applies only to actions arising after the effective date....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1998 WL 64072
...If this statute is vague, it raises procedural due process issues, where, as here, if physicians violate the statute, their licenses to practice their profession are at stake. D'Alemberte v. Anderson,
349 So.2d 164 (Fla.1977). Florida has a body of common law on informed consent which has essentially been codified in section
766.102, Florida Statutes (1995)....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 14590, 2009 WL 3103853
...Respondent filed a formal complaint basically alleging the same facts contained in the notice. Petitioners filed a Motion of the Defendants to Dismiss Pursuant to Section
766.206, Fla. Stat., alleging that Dr. Foster's corroborating affidavit was legally insufficient to satisfy the presuit requirement outlined in section
766.102, Florida Statutes (2007)....
...Section
766.202(6) defines a medical expert as: [A] person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s.
766.102. The question before this court is whether Dr. Foster meets the qualifications as an expert witness pursuant to section
766.102. Specifically, petitioners assert that the trial court erred when it denied their motion to dismiss and concluded that respondent's expert was qualified as a medical expert under section
766.102(5), Florida Statutes, to corroborate respondent's claim....
...postjudgment because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance." Parkway Bank v. Fort Myers Armature Works, Inc.,
658 So.2d 646, 649 (Fla. 2d DCA 1995). In 2003, the Florida Legislature amended section
766.102 with respect to the requirements that must be possessed by an expert witness in a medical malpractice case. Ch. 2003-416, § 48, at 4086, Laws of Fla. Prior to the 2003 amendment, section
766.102(2)(b) and (c) stated in pertinent part: (b) If the health care provider whose negligence is claimed to have created the cause of action is certified by the appropriate American board as a specialist, is trained and experienced in a me...
...medicine. Such training, experience or knowledge must be as a result of the active involvement in the practice or teaching of medicine within the 5-year period before the incident giving rise to the claim. (Emphasis added). After the 2003 amendment, section 766.102(5), Florida Statutes, now states in pertinent part: A person may not give expert testimony concerning the prevailing professional standard of care unless that person is a *146 licensed health care provider and meets the following crit...
...imilar health care provider but, to the satisfaction of the court, possessed sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine. § 766.102(2)(c)(2), Fla....
...o give a presuit corroborating affidavit. Rather, the expert witness must specialize in the same specialty as the defendant or specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition at issue. § 766.102(5), Fla....
...In this case, petitioner Oken, "the health care provider against whom ... the testimony is offered," is a board certified cardiologist. There is no dispute that respondent's expert does not specialize in cardiology. Thus, to corroborate respondent's claim under section 766.102(5)(a)(1), Florida Statutes, respondent's expert must specialize "in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating...
...enses possess similar, or identical, credentials and expertise in the defendant's specialty. J. Dudley Goodlette, Chairman, Report of House Select Committee on Medical Liability Insurance at 58 (March 2003) (emphasis added). The pre-2003 language of section 766.102 contained a "catch-all" provision that would allow a court to admit the testimony of an expert who: Is not a similar health care provider ......
...but, to the satisfaction of the court, possesses sufficient training, experience, and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. § 766.102(2)(c)2., Fla. Stat. (2002). When the Legislature altered the language of section 766.102, it replaced the phrase "similar health care provider" with the phrase "same or similar specialty" and eliminated the former "catch-all" provision....
...To allow a family medicine physician, or an emergency medicine physician, to testify against a cardiologist simply because such physicians evaluate patients with suspected cardiac problems would contradict the Legislature's clear intent in revising section 766.102 and departs from the essential requirements of law....
...d injects the judiciary into adversarial territory heretofore untraveled, I am compelled to dissent. Analysis of Majority Opinion General Comments I do not take issue with the majority opinion's assertion about the public policy behind the intent of section 766.102, Florida Statutes (2007)....
...lt. Substantive Deficiencies A correct determination of this petition depends upon whether Respondent's expert, Dr. Foster, specializes in a similar specialty as Dr. Oken and has extensive related experience in the field under review as specified by section 766.102(5)(a)1.-2.a., Florida Statutes (2007)....
...The Legislature has not defined "similar specialty," but the majority opinion, relying upon Internet information not contained in the record as its only factual basis, makes a factual determination that Dr. Foster is not engaged in a similar specialty and is not qualified to testify and meet pre-suit requirements under section 766.102(5)(a), Florida Statutes (2007)....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2008 WL 4224382
...sing out of the rendering of, or the failure to render, medical care or services." The question in determining if a claim is a medical malpractice claim is whether the plaintiff must rely upon the medical negligence standard of care, as set forth in section 766.102(1), Florida Statutes (2007), in order to prove the case....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1999 WL 741115
...s held that "chapter 766's notice and presuit screening requirements apply to claims that `aris[e] out of the rendering of, or the failure to render, medical care or services.'" J.B. v. Sacred Heart Hosp. of Pensacola,
635 So.2d 945, 949 (Fla.1994). Section
766.102(1), Florida Statutes (1997), establishes the standard of liability for a health care provider in a negligence action: The prevailing professional standard of care for a given health care provider shall be that level of care, skill, an...
...Groth,
629 So.2d 835, 838 (Fla.1993), the supreme court held that the proper test for determining whether a health care provider "is entitled to notice under section
766.106(2) is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1)." Similarly, we hold that the presuit requirements of Chapter 766 are also mandatory where a claimant's cause of action is based on a health care facility's failure to exercise due care in fulfilling the duties imposed by section 7...
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2003 WL 21180087
...er of fact. See Fla. Power & Light v. Periera,
705 So.2d 1359, 1361 (Fla.1998). Finally, Dr. Isasi contends that Dr. May was not qualified to critique his care and treatment where Dr. May is not a "similar health care provider" within the meaning of section
766.102(2), Florida Statutes (1995)....
...Where a defendant is a specialist, then an expert presented to testify regarding the standard of care must be a "`similar health care provider'... who (1)[i]s trained and experienced in the same specialty; and (2)[i]s certified by the appropriate American board in the same specialty." § 766.102(2)(b)....
...standard of care in a given field of medicine. Such *968 training, experience, or knowledge must be as a result of the active involvement in the practice or teaching of medicine within the 5-year period before the incident giving rise to the claim. § 766.102(2)(c)2 (emphasis added)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1996 WL 124682
...diagnosis, treatment *1097 or care. We find this court's decision in NME Properties, Inc. v. McCullough,
590 So.2d 439, 440 (Fla. 2d DCA 1991), controlling. There we said: Although a nursing home is not itself a health care provider for purposes of section
766.102, it may be vicariously liable under that higher standard of care for the acts of some of its agents or employees....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2004 Fla. App. LEXIS 54, 2004 WL 34512
...In the first place, a claim is one for medical negligence for purposes of section
766.106 only if it is one as to which, to recover, the plaintiff must establish that the defendant failed to meet the "medical negligence standard of care as set forth in section
766.102(1)." Integrated Health Care Servs., Inc. v. Lang-Redway,
840 So.2d 974, 980 (Fla.2002). Accord Broadway v. Bay Hosp., Inc.,
638 So.2d 176 (Fla. 1st DCA 1994). According to section
766.102(1), a plaintiff must carry such a burden to recover only if "death or injury resulted from the negligence of a health care provider as defined in s. 768.50(2)(b)." §
766.102(1), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2001 WL 85521
...es. We note that the trial judge finally realized that he had made an error in striking much of Dr. Slysh's testimony, but thought that he was powerless to correct the error given the fact that an appeal had already been filed. [3] The provisions of section 766.102, Florida Statutes (1995) that require the claimant in a medical malpractice action to establish the standard of care by expert testimony does not preclude the introduction of other evidence....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2008 WL 1883565
...With these principles in mind, in reviewing the trial court's decision to deny the requested jury instruction, we take into account not only the requested instruction but all instructions given to the jury. The requested instruction was patterned after section 766.102(4), Florida Statutes (1999), [2] which provides, in part, as follows: The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the bur...
...Ctr., Inc.,
659 So.2d 249, 254 n. 3 (Fla.1995). Affirmed. NOTES [1] The trial court admitted three 8" × 10" photographs into evidence. However, as explained, these photographs have been lost, and therefore, we have examined the postersize copies of these photographs. [2] Section
766.102(4) has been renumbered, and currently appears in section
766.102(3), Florida Statutes (2007).
CopyCited 5 times | Published | Supreme Court of Florida
...yer does not fall
within the statutory definition of health care provider.” Weinstock v. Groth,
629
So. 2d 835, 838 (Fla. 1993). Thus, an employer “may be vicariously liable under
the professional medical negligence standard of care set forth in section
766.102(1)
when its agent or employee, who is a health care provider, negligently renders
medical care or services.” Id.
-5-
safety of the resident and for safety of the other residents....
...The restrictions that
chapter 766 places on medical malpractice plaintiffs’ ability to prove their cases
persist even after a lawsuit is filed, such as providing specific qualifications for
medical experts testifying as to the standard of care. See generally id. § 766.102.
Just last year, we concluded that through chapter 766, the Legislature “has
restricted plaintiffs’ ability to bring medical malpractice claims.” Dockswell, 210
So....
...The Legislature has
further provided that proving a medical malpractice claim requires establishing that
the allegedly negligent act “represented a breach of the prevailing professional
standard of care,” as testified to by a qualified medical expert. Id. § 766.102(1);
see id. § 766.102(5).
In Silva v....
...meeting the patient’s daily needs during the illness.” Id. at 1187. Moreover, “in
order to determine whether the presuit requirements of chapter 766 apply, we look
to whether the plaintiff must rely upon the medical negligence standard of care as
set forth in section 766.102(1).” Integrated Health Care Servs., Inc....
...services.” §
766.106(1)(a), Fla. Stat. (2008). The Legislature also made clear that
proving a medical malpractice claim requires the testimony of a qualified medical
expert that the alleged negligent act breached the prevailing professional standard
of care. See id. §
766.102(1), (5).7 As we stated in Silva, “[i]n the absence of clear
legislative intent to the contrary, we are not at liberty to construe” terms defined in
chapter 766 “so as to deprive plaintiffs of their causes of action.” 601 So....
...We now turn to this case.
III. This Case
7. This requirement does not apply to cases where a foreign body is
discovered, because such a discovery “shall be prima facie evidence of negligence
on the part of the health care provider.” § 766.102(3)(b), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1999 WL 235470
...He emphasized that he was the Chairman of the Tumor Board at the hospital for 15 years and thus dealt with all kinds of cancers. [4] At the close of the testimony of Dr. Singer, defendant moved to strike his entire testimony and for a directed verdict. Defendant argued that Dr. Singer did not satisfy the requirements of section 766.102 because "he does not treat these cases, does not follow these patients, does not have any contact with them from the time of surgery until the time of recurrence." [5] In short the argument was that Dr....
...Singer does not "in any way possess the training, experience or skill as defined by the statute to enable him to offer an opinion on the standard of care on this issue." Elaborating later, defense counsel argued that Dr. Singer was not a qualified health care professional under section 766.102, in that he lacked familiarity with regard to follow up examinations, studies and CT scans for post cervical cancer surgical patients, that he is not a surgeon or board certified in surgery or gynecology....
...lied erroneous legal principles in arriving at its decision." [8]
559 So.2d at 1245. Moreover, to some extent the traditional broad discretion of a trial judge to exclude expert testimony in medical negligence cases is limited by the requirements of section
766.102(1) as to the standard of care....
...When referral is made from one specialty to the other, the question is not whether the referring doctor makes the decision on performing the procedure, but whether the referring doctor possesses the requisite training, experience and knowledge in a `given field of medicine.' § 766.102(2)(c)(2), Fla....
...g in obstetrics and gynecology). All of the foregoing cases to one degree or another involve a medical expert credentialed in one discrete specialty testifying as to the standard of care of a health care provider credentialed in another. To be sure, section 766.102 does not make differing Board Certifications dispositive....
...y, but that hardly makes it inadmissible. When a gynecological-oncological surgeon purports to render diagnostic services to a cancer patient, a physician who is an expert in medical oncology is a "similar health care provider" within the meaning of section 766.102(2) even though he is not a surgeon or a gynecologist....
...reat gynecological patients. Nor is such an oncologist unqualified merely because his practice is consultative, so long as he continues to maintain his specialization in oncology. And just as important, there is nothing in sections
90.702,
90.704 or
766.102 that bars a medical expert from forming an opinion before he has reviewed records such as the patient's chart....
...Singer's testimony was stricken as unqualified the defendant had not yet adduced contrary *126 evidence. But the primary basis for his motion to strike the testimony was that Dr. Singer was not a "similar health care provider" within the meaning of section 766.102(2)(b)....
...Specifically, at the time of his motion he had not produced any evidence that his specialty was dissimilar to Dr. Singer's. In Charlonne v. Rosenthal,
642 So.2d 632 (Fla. 3d DCA 1994), the court held that: "In order for the defendant in a medical negligence action to invoke the protection of paragraph
766.102(2)(b), it is necessary for the defendant to make a record showing that he fits within the statutory definition....
...nder an opinion as to whether a gynecological-oncological surgeon fell below the standard of care in failing to diagnose a recurrence of cancer. On the other hand there was no direct evidence as to whether defendant was entitled to the protection of section 766.102(2)(b)....
...Singer's qualifications as an expert witness in the subject of the case. Nor did defendant make any pretrial motion in limine to exclude the testimony of Dr. Singer. [2] Defendant apparently objected to Dr. Singer testifying before he took the stand, but our record does not include that part of the transcript. [3] See § 766.102(2)(b), Fla....
...Is certified by the appropriate American board in the same specialty."). [4] A Tumor Board is a committee of multidisciplinary physician specialistssurgeons, medical oncologists, gynecologists, pathologists, and radiologists,designated to review all cancer cases presented in the hospital. [5] See § 766.102(1), Fla....
...In that case the cancer was discovered in the patient's breast, while in the present case the cancer was discovered in the patient's cervix. We do not regard that difference as either legally or factually important. [11] See §§
90.702,
90.704 and
766.102....
CopyCited 4 times | Published | District Court, N.D. Florida | 2009 U.S. Dist. LEXIS 95302, 2009 WL 3163183
...Bldg., Inc.,
445 So.2d 1015, 1018 (Fla.1984)); see also Torres v. Sullivan,
903 So.2d 1064, 1067 (Fla. 2d DCA 2005). The plaintiff bears the burden of proving a breach of the "prevailing professional standard of care" for a particular health care provider "by the greater weight of the evidence." Fla. Stat. §
766.102(1)....
...Threlkel,
661 So.2d 278, 281 (Fla. 1995). Although the state law provides the criteria for determining whether a person is competent to give expert testimony concerning the prevailing standard of care for a health care provider, [15] see Fla. Stat. §
766.102(5), there is an exception to this requirement in situations where "only the *1289 exercise of common sense and ordinary judgment are required." Stepien v....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1994 WL 617187
...The judgments under review run counter to this rule of construction. The record shows that Maldonado's expert was qualified to render an opinion as to defendants' negligence in compliance with the requirements of section
766.202(5) defining "medical expert." Contrary to defendants' contention, section
766.102(6), Florida Statutes (1989), does not delineate the requisite qualifications of the expert offering the presuit affidavit....
...& Clinics, Inc. v. Barber,
638 So.2d 570 (Fla. 1st DCA 1994); Ragoonanan v. Associates in Obstetrics & Gynecology,
619 So.2d 482, 484 (Fla. 2d DCA 1993); Stebilla v. Mussallem,
595 So.2d 136 (Fla. 5th DCA), review denied,
604 So.2d 487 (Fla. 1992). Section
766.102(6) concerning the admissibility of expert testimony in cases involving emergency medical services need not be read in pari materia with sections
766.202(5), and
766.203(2)....
...1st DCA), review denied,
624 So.2d 267 (Fla. 1993). The plain words of section
766.203(2) require a corroborating opinion from a medical expert as defined in section
766.202(5); it does not require that claimant submit an affidavit from an expert as described in sections
766.102(6)(a) and (b)....
...d that exclusion of psychologists from Chapter 766 definitions *89 of health care provider evidences a legislative intent that psychologists not be classified as health care providers). Moreover, we may not engraft the more stringent requirements of section
766.102(6) onto sections
766.202(5) and
766.203(2) in contravention of the express language of the statute....
...[6] Although the record reveals that Cedars appears to have waived the issue of Maldonado's presuit compliance by failing to raise timely the issue, Ingersoll v. Hoffman,
589 So.2d 223 (Fla. 1991), it is unnecessary to resolve that issue because Maldonado has not raised that issue on appeal. [7] Section
766.102(6)(a) requires that the testifying medical expert in a case involving emergency medical services must "have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department." We express no opinion whether the expert rendering the opinion at trial must be qualified under section
766.102(6)....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2011 WL 5964360, 2011 Fla. App. LEXIS 18986
...Palms West Hospital (Palms West) petitions this court for a writ of certiorari following the circuit court’s denial of its motion to dismiss respondent Charles H. Burns’ third amended complaint for failure to follow pre-suit procedures under the Florida Medical Malpractice Act. See § 766.102, Fla....
...[A] claim for medical malpractice [is] “a claim, arising out of the rendering of, or the failure to render, medical care or services.” The question in determining if a claim is a medical malpractice claim is whether the plaintiff must rely upon the medical negligence standard of care, as set forth in section 766.102(1), Florida Statutes (2007), in order to prove the case....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2006 WL 739775
...1st DCA 2001) (holding that a psychotherapist did not owe a legal duty to an outpatient client who committed suicide notwithstanding the fact that the plaintiff's expert opined that the psychotherapist had failed to act in accordance with the relevant standard of care). Section 766.102(1), Florida Statutes (2004), codifies this duty, stating that a health care provider has a duty to act in accordance with the prevailing professional standard of care for that health care provider....
...The prevailing professional standard of care for a given health care provider "shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." § 766.102(1)....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 3868, 2015 WL 1540230
...Dellerson, the affiant to the verified written medical expert opinion attached to the Estate’s notice of intent to initiate litigation, does not qualify as an expert because his credentials do not constitute substantial professional experience in providing emergency medical services under section 766.102(9)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2008 WL 2338516
...Lang-Redway,
840 So.2d 974 (Fla.2002), a plaintiff must comply with the pre-suit requirements of chapter 766 "if it seeks to make a defendant vicariously liable for the actions of a health care provider under the medical negligence standard of care set forth in section
766.102(1)." In this amended complaint, the plaintiffs/appellants sought to make the defendant/appellee hospital vicariously liable for the actions of its health care providers under a medical negligence standard of care, as is clear from the emphasized portion of the above-quoted paragraph from the amended complaint, which is identical to the medical negligence standard of care set forth in section
766.102(1), Florida Statutes....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1998 WL 422317
...Bader regarding the standard of care for internists on the rationale that Dr. Price is a general practitioner or provided only general practitioner care to Pittman. Accordingly, the lower court ruled that Dr. Bader did not satisfy the expert witness requirements of section 766.102(2)(b), Florida Statutes (1991). For the reasons discussed below, this ruling was error, and the record does not conclusively demonstrate that it was harmless error. Exclusion of Expert Testimony Section 766.102(1) requires that a party seeking damages based upon death or personal injury resulting from the negligence of a health care provider must establish that negligence based upon proof that the health care provider breached the prevailing standard of care that is recognized by reasonably prudent "similar health care providers" as acceptable and appropriate. Section 766.102(2)(b) provides in pertinent part that if a health care provider who is alleged to have been negligent "holds himself out as a specialist," a similar specialist may testify as to the standard of care. [1] In the instant case, *208 there is no dispute that Dr. Bader is a specialist in internal medicine. Thus, should Dr. Price be considered as a specialist in internal medicine, under section 766.102(2)(b) Bader would qualify to testify as to the standard of care for internal medicine specialists....
...Our review of the undisputed facts in the record convinces us that he did. Although the admissibility of expert testimony is generally within the discretion of the trial court, see Ortagus v. State,
500 So.2d 1367, 1371 (Fla. 1st DCA 1987), because the statutory criteria under section
766.102 were met, the trial court below abused its discretion by precluding the testimony of a "similar health care provider." The determination as to whether a health care provider "holds himself out as a specialist" under the statute is a fact question for the trial court....
...Dr. Price represented himself to the public as a general practitioner, as found by the lower court. The fact that Dr. Price did not represent that he is "certified" in internal medicine is not dispositive for determining the defendant's status under section 766.102(2)(b)....
...in the record. The relevant inquiry of the trial court for determining the required specialist training and qualifications of an expert is whether the defendant physician, during the course of medical treatment, satisfied any of the three prongs of section 766.102(2)(b)....
...8), Florida Statutes (1991). Nor would I reach that question at this juncture. I concur in reversing for a new trial on liability, because the trial court erred, for the reasons the majority has set out, in excluding Dr. Bader's testimony. NOTES [1] Section 766.102(2)(b) provides: If the health care provider whose negligence is claimed to have created the cause of action is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a "similar health care provider" is one who: 1....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1994 WL 380919
...2d DCA 1991); Long v. Rothbaum, 68 Md. App. 569, 514 A.2d 1223 (1986); see also Martinez v. Lifemark Hosp. of Florida, Inc.,
608 So.2d 855 (Fla. 3d DCA 1992). Affirmed. RYDER, A.C.J., and PARKER, J., concur. NOTES [1] §§
394.451-394.4789, Fla. Stat. (1991). [2] See §
766.102(1), Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2014 WL 626586, 2014 Fla. App. LEXIS 2246
...The prevailing standard of care for a physician in Florida is “ ‘that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.’ ” Sweet,
932 So.2d at 368 (quoting §
766.102(1), Fla....
CopyCited 4 times | Published | Supreme Court of Florida
PER CURIAM. We have for consideration the regular-cycle report 1 of The Florida Bar’s Code and Rules of Evidence Committee (Committee), concerning legislative changes to the Florida Evidence Code and to section 766.102, Florida Statutes (2012)....
...ficant concerns about the amendments, including concerns about the constitutionality of an amendment. 4 In addition, the Court has declined to follow the Committee’s recommendation to adopt, to the extent it may be procedural, legislation creating section 766.102(12), Florida Statutes, which is not a part of the Florida Evidence Code....
...ort urging the Court to adopt the Daubert Amendment. The Committee also recommends, by a vote of 24-0-1, that the Court not adopt, to the extent it is procedural, chapter 2013-108, section 2, Laws of Florida (Same Specialty Amendment), which amended section 766.102 (Medical negligence; standards of recovery; expert witness), Florida Statutes (2012), to require a standard-of-care expert witness in a medical malpractice action to specialize in the same specialty as the health care provider against whom or *1237 on whose behalf the testimony is offered....
...adopt, to the extent they are procedural, the changes to sections
90.702 and
90.704 of the Evidence Code made by the Daubert Amendment. Also, as recommended by the' Committee, we decline to adopt, to the extent they are procedural, the amendments to section
766.102, Florida Statutes, made by the Same Specialty Amendment....
...h the Court, we decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper ease or controversy. Same Specialty Amendment The Same Specialty Amendment amended section 766.102(5)(a), Florida Statutes (2012), to require a standard-of-care expert witness in a medical malpractice action to specialize in the same specialty, rather than the same or similar specialty, 10 as the health care provider against whom or on whose behalf the testimony is offered. See ch. 2013-108, § 2, Laws of Fla. The amendment also repealed section 766.102(14), Florida Statutes (2012), which recognized a trial court’s authority to disqualify or qualify an expert witness on grounds other than the qualifications in that section....
...The Committee, the Board of Governors, and all those who commented on the Same Specialty Amendment urge the Court not to adopt that legislation, to the extent it is procedural. Consistent with the Committee’s recommendation, we decline to adopt the Same Specialty Amendment, for the same reasons we declined to adopt section
766.102(12), which requires a standard-of-care expert witness to hold the same state license as the health care provider against whom, or on whose behalf, the expert is testifying or to have a valid expert witness certificate. See In_re Amends, to Fla. Evidence Code,
144 So.3d at 537 (declining to adopt chapter 2011-233, section 10, Laws of Florida, creating section
766.102(12), because of concerns that the statute “is unconstitutional, [has] a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice”)....
...mony is offered has “a chilling effect on the ability to obtain expert witnesses,” making it more difficult for a victim of medical negligence to bring a medical malpractice action. This raises concerns that, like the same-license requirement of section 766.102(12), the same-specialty requirement limits access to courts and is prejudicial to the administration of justice....
...da citizen’s constitutionally guaranteed access to courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses”). In addition to the concerns raised by the Committee and the cdmmenters, the section 766.102(5)(a) same-specialty requirement and the various other section 766.102 expert-witness requirements 12 are not part of chapter 90, Florida Statutes, the Florida Evidence Code....
...e codified in one place and were no longer “derived from multiple sources,” including case law, rules adopted by the Court, and statutes enacted by the Legislature), clarified, In re Fla. Evidence Code,
376 So.2d 1161 (Fla. 1979). 13 Rather, the section
766.102 requirements, none of which this Court has adopted, 14 are part of the legislative scheme for medical malpractice actions codified in chapter 766, Florida Statutes. It is likewise significant that this Court also has never adopted, to the extent it may be procedural, the section
766.102(14), Florida Statutes (2012), recognition of a tidal court’s authority to qualify or disqual *1241 ify an expert witness in a medical malpractice case on grounds other than those specified in section
766.102....
...Therefore, there is no reason for this Court to now adopt the repeal of that legislation to the extent that repeal might impact court procedure. Finally, we do not address the substantive/procedural issue raised here because whether the Legislature’s amendments to section 766.102(5)(a) and repeal of section 766.102(14) somehow run afoul of the trial court’s inherent power or this Court’s rule-making authority must be left for a proper case or controversy and not decided in this rules case....
...rt); In re Amend. to Fla. Evidence Code,
825 So.2d at 341 ; In re Amends. to Fla. Evidence Code,
782 So.2d at 341 ; In re Amends. to Fla. Rules of Crim. Pro.-Final Arguments,
957 So.2d 1164, 1167 (Fla. 2007). . Prior to the Same Specialty Amendment, section
766.102(5)(a), Florida Statutes, required an expert testifying about the prevailing standard of care in a medical malpractice action to (1) specialize in the same specialty as the health care provider against whom or on whose behalf the testi...
...ition that is the subject of the claim and have the prior experience treating similar patients. The Same Specialty Amendment removed the similar specialty option for qualifying a standard-of-care expert witness from the statute. . Before its repeal, section 766.102(14), Florida Statutes, provided that section 766.102 did “not limit the power of the trial court to disqualify or qualify an expert witness on grounds other than the qualifications in this section.” . See, e.g., § 766.102(5)(b), Fla. Stat. (2016) (providing requirements for expert witnesses testifying on the standard of care for general practitioners); § 766.102(6), Fla. Stat. (providing the requirements for expert witnesses testifying on the standard of care for nurses and other medical support staff); § 766.102(7), Fla. Stat.' (providing the requirements for expert witnesses testifying on the standard of care as to administrative and other nonclinical issues in actions against hospitals or other medical facilities); § 766.102(9), Fla....
...d by the Legislature “to avoid having the evidence rules scattered in piece-meal fashion in various statutes and rules of procedures” and to have "a single comprehensive set of rules”), . Prior to the Committee’s 2013 recommendation to adopt section
766.102(12), see In re Amends, to the Fla. Evidence Code,
144 So.3d at 536 , the Committee had only made recommendations to the Court concerning legislative changes to the Evidence Code. The Committee had never made recommendations concerning any of the section
766.102 expert-witness requirements....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2002 WL 1939941
..., against another cardiologist, and he had not been disqualified by any court from testifying as an expert in those fields. His opinion was rejected in one case, however, because it related to the standard of care of an emergency medicine physician. Section 766.102(6)(a) provides that in malpractice actions against emergency room physicians, the court shall admit expert medical testimony only from physicians who have had substantial professional experience within the preceding five years while a...
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1996 WL 149028
...The final order dismissing the cause on this ground, be and the same is hereby reversed and the matter returned to the trial court for further proceedings. NOTES [1] Section 768.50(2)(b) was repealed in 1986 by Ch. 86-160, § 68 Laws of Fla., but remains viable for this purpose because it is referred to in section 766.102(1), Fla.Stat....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2000 WL 390284
...Battle was a general surgeon in Laurel, Maryland. At the close of Franklin's case, defense counsel moved for a directed verdict based on Franklin's failure to present any evidence from an expert who was qualified to testify about the standard of care of emergency room physicians pursuant to Section 766.102(6)(a)(b), Florida Statutes (1997)....
...[1] The court reserved ruling and the jury returned a verdict awarding Franklin total damages of $200,000. Upon defense counsel's renewed motion for a directed verdict, the trial court ordered a new trial because Dr. Battle was not qualified to render testimony under Section 766.102(6)(a)(b)....
...Although we have no power to act on this arguably unethical behavior, we believe this may be a matter to be addressed by the Agency for Health Care Administration which investigates complaints on behalf of the Department of Health. Affirmed. NOTES [1] Section 766.102(6), Florida Statutes (1997) provides: 766.102 Medical negligence; standards of recovery....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2008 WL 4643122
...Tracy referred Gonzalez to a neurologist. In February 2006, the neurologist performed tests on Gonzalez, and in March 2006, the neurologist informed Gonzalez that her pain was caused by a nerve that was severed during the surgery, not plantar fasciitis. On October 2, 2006, pursuant to section 766.102, Gonzalez served Dr....
...Tracy's treatment fell below the standard of care; and the pre-operative tests did not indicate that Gonzalez had a tissue mass, and therefore, surgery was not warranted. During the ninety-day presuit period, Dr. Tracy advised Gonzalez that Dr. Lazzarin's affidavit failed to satisfy the requirements of sections
766.102,
766.202, and
766.203, Florida Statutes (2006)....
...Lazzarin The trial court concluded that the four "[a]ffidavits submitted by Dr. Lazzarin, even taken in total, fail to satisfy the... requisite, statutory requirements of a `medical expert.'" [4] The defendants argue that Dr. Lazzarin's affidavits do not satisfy section 766.102(5)(a)2 because his affidavit dated July 11, 2007, avers that he has devoted professional time to an active clinical practice "[i]n the last three years," rather than "during the 3 years preceding the date of the occurrence." We find,...
...), defines "medical expert" as "a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102." Section 766.102(5), Florida Statutes (2006), provides in relevant part: (5) A person may not give expert testimony concerning the prevailing professional standard of care unless that person is a licensed health care provider and meets the following c...
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2004 WL 2330812
...the hearsay rule do not, in many instances, comport with the reality that expert opinions are based on other than first-hand observation." The testimony at issue in this case is an opinion regarding the proper standard of medical care. According to section 766.102(1), Florida Statutes, the prevailing standard of care for a health care provider is "that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by re...
...Weaver-Osterholtz would apply to herself is not the standard to be applied in determining medical negligence. As we have explained, the standard of care is the level of care that is recognized as acceptable and appropriate by reasonably prudent health care professionals. See § 766.102(1), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2001 WL 228024
...nclude that the presuit requirements of chapter 766 must be narrowly construed to apply only to common law medical negligence claims and not to the separate statutory rights created by chapter 400. Compare §
400.022(1)( l ), Fla. Stat. (1997), with §
766.102(1), Fla....
...did not cause Mr. Redway's death. However, both claims are based upon a violation of a statutory right instead of a common law right. The six-count complaint does not name or identify any physician or other "health care provider" as a defendant. See § 766.102(1), Fla....
...Medfield, Inc.,
681 So.2d 711 (Fla. 2d DCA 1995). In general, a plaintiff must comply with these conditions if it seeks to make a defendant vicariously liable for the actions of a health care provider under the medical negligence standard of care set forth in section
766.102(1)....
...Properties. In that case, we suggested that a nursing home could be liable under a professional standard of care for the actions of a licensed nurse. See NME Properties,
590 So.2d at 441. Such a nurse is a "health care provider" for the purposes of section
766.102(1), and we continue to believe that a nursing home could be liable, on a common law claim, for the actions of such a licensed nurse....
...PARKER, A.C.J., and SALCINES, J., concur. NOTES [1] The definition in this long-repealed section dealt with collateral sources of indemnity. Even though this definition can no longer be located within the Florida Statutes, it survives by virtue of the reference to this defunct statute in section 766.102(1), Florida Statutes (1997)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2013 WL 3835836, 2013 Fla. App. LEXIS 11737
...been performed. The crux of a failure-to-diagnose case is nonfeasance in the determination of the cause of one’s illness when medical personnel should have been able to do so if certain diagnostic tools, including examinations, had been used. See § 766.102(4), Fla....
CopyCited 3 times | Published | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 494, 2014 WL 3361813, 2014 Fla. LEXIS 2153
...physician, (2) a breach of that duty, and (3) causation. See Gooding v. University
Hosp. Bldg., Inc.,
445 So. 2d 1015, 1018 (Fla. 1984) (citing Wale v. Barnes,
278
So. 2d 601, 603 (Fla. 1973)). The duty element requires a physician to act within
the standard of professional care. See §
766.102, Fla....
...In short, it is to provide
the care that a reasonably prudent physician would provide. See Pate v. Threlkel,
661 So. 2d 278, 280 (Fla. 1995). A physician breaches that duty when he or she
does not provide the care that a reasonably prudent physician would provide. See
§
766.102, Fla....
CopyCited 3 times | Published | Supreme Court of Florida | 2014 WL 289984
...assessment of the patient’s medical history,” which would mean the
recommendation would be made “in a manner consistent with this section.” Of
course, such a recommendation may fall outside “the prevailing professional
standard of care for that health care provider.” § 766.102(1), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2002 WL 53899
...In the remainder of this opinion, we will refer to Slomka and Orthopaedic Specialists collectively as "Slomka." [2] We reject Slomka's assertion that the trial court should have excluded Odyniec's testimony because he was not a "similar health care provider," as defined in section 766.102(2)(b), Florida Statutes (2000)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2007 WL 412431
...Serratore,
869 So.2d 729, 731 (Fla. 4th DCA 2004) ("The gravamen of Serratore's complaint for negligence does not arise out of the receiving of medical care nor does it require that Serratore prove [a deviation] from an accepted standard of medical care, which is required under section
766.102(1)."); Garcia v....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1997 WL 794482
...We reject this contention. The trial court never made a finding that Dr. Calcagno was not qualified. The evidence on this issue shows that Dr. Calcagno was well qualified to offer an opinion on the necessity to perform a spinal tap, even by a neurosurgeon. See § 766.102(2)(c), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1991 WL 63770
...Rather, Southwest merely sold blood to the hospital at which Mrs. Silva received the transfusion. Southwest asserts in response that Silva's action against it is an action for medical malpractice because the legislature has defined blood banks as health care providers, § 766.102(1), Fla....
...Second, the legislature has defined blood banks as health care providers. *505 § 768.50(2)(b), Fla. Stat. (1977). [1] Although section 768.50 was repealed in 1986, ch. 86-160, § 68, Laws of Florida, subsection 768.50(2)(b) was not, as it is cross-referenced in subsection
766.102(1), Florida Statutes (1989). See Hecht v. Shaw,
112 Fla. 762,
151 So. 333 (Fla. 1933). Section
766.102 defines the standards of recovery in all medical negligence actions. By incorporating the definition of health care provider in subsection 768.50(2)(b) into subsection
766.102(1), the legislature has specifically identified those health care providers against whom actions for medical malpractice may be brought....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1996 WL 539833
...shall apply to all medical negligence ... claims and defenses." [e.s.] The term "medical negligence" is defined in section
766.202(6) to mean "medical malpractice, whether grounded in tort or in contract." The standard for recovery under medical negligence is addressed in section
766.102(1), which embraces: "any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider." [e.s.] Under section...
...rounds for a "claim of negligent injury," §
766.205(1) (emphasis added), as do provisions allowing the court to determine if a claim or denial is reasonable, §
766.206. Further, the standards of recovery are prescribed only for medical negligence, §
766.102, and the provisions for court-ordered arbitration apply only to death or personal injury resulting from the negligence of a health care provider, § 766.107....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2000 WL 1299347
...On appeal, Barrio complains that the trial court improperly allowed an unqualified expert witness to opine that Wilson did not violate the standard of care for emergency room physicians. We agree that the court should not have permitted this testimony, but we conclude that the error was harmless. Section 766.102(6)(a), Florida Statutes (1997), provides in pertinent part that in malpractice actions against emergency room physicians "the court shall admit expert medical testimony only from physicians......
...3d DCA 2000) (affirming grant of new trial on ground of improper admission of expert testimony of surgeon who lacked substantial experience providing emergency medical services in a hospital emergency department within last 5 years). The defendants argue that Dr. Fulkerson was qualified to testify under section 766.102(2)(c)2., which provides that one who is not a "similar health care provider" as the defendant nevertheless may testify if he or she, "to the satisfaction of the court, possesses sufficient training, experience, and knowledge as a resu...
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 19 Fla. L. Weekly Fed. D 1941
...an expert in a subject matter `by knowledge, skill, experience, training, or education.'" Charles W. Ehrhardt, Florida Evidence § 702.1, at 501 (1994). For medical negligence cases the legislature has enacted specific criteria for expert witnesses. § 766.102(2), Fla....
...634 practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Id. § 766.102(2)(c)(2)....
...terial fact and that the moving party is entitled to a judgment as a matter of law." Fla.R.Civ.P. 1.510(c). The record must be read in the light most favorable to the non-moving party. Defendant first contends that he is a specialist as described in section 766.102. Under the statute, a specialist is one who "is certified by the appropriate American Board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist... ." § 766.102(2)(b), Fla....
...re provider' ... who: (1) [i]s trained and experienced in the same specialty; and (2) [i]s certified by the appropriate American board in the same specialty." Id. Alternatively, the affidavit would have to satisfy the standard set forth in paragraph 766.102(2)(c), Florida Statutes, for an expert otherwise qualified by training, experience, and knowledge....
...In the present case the summary judgment record is scanty and does not set forth evidentiary matter establishing that the defendant is, in fact, a specialist as defined by the statute. In order for the defendant in a medical negligence action to invoke the protection of paragraph 766.102(2)(b), it is necessary for the defendant to make a record showing that he fits within the statutory definition. That showing was not made here. Defendant argues alternatively that he is entitled to summary judgment even if he did not demonstrate that he is a specialist within the meaning of paragraph 766.102(2)(b). He argues that the plaintiff's expert affidavit does not meet the standard for a nonspecialist "similar health care provider" as prescribed by paragraph 766.102(2)(a), and does not meet the alternative standard set forth in paragraph 766.102(2)(c) for an expert otherwise qualified by training, experience, and knowledge....
...Id. at 990; see also Curry v. Cape Canaveral Hosp.,
426 So.2d 64, 65 (Fla. 5th DCA 1983); Fetell v. Drexler,
422 So.2d 89, 90 (Fla. 3d DCA 1982). We reverse the summary judgment and remand for further proceedings consistent herewith. [2] NOTES [1] Section
766.102(2) provides: (a) If the health care provider whose negligence is claimed to have created the cause of action is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical special...
...ional standard of care in a given field of medicine. Such training, experience, or knowledge must be as a result of the active involvement in the practice or teaching of medicine within the 5-year period before the incident giving rise to the claim. Section 766.102 was formerly section 768.45, Florida Statutes (1987)....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2011 WL 4949904, 2011 Fla. App. LEXIS 16368
...In February 2010, pursuant to section
766.206, Dr. Fahel filed a motion to dismiss the complaint, arguing that Dr. Khil-nani’s corroborating affidavit was insufficient because Dr. Khilnani and Dr. Fahel do not practice in the same or similar specialty. §
766.102(5), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1992 WL 322993
...2d DCA 1991), the court lamented the difficulty of interpreting chapter 766 because of the lack of comprehensive definitions.
590 So.2d at 440, n. 1. The parties on appeal and the court below have relied on different definitions of "health care provider." [1] The court below relied on section
766.102 which sets forth the standards of recovery in a medical malpractice action:
766.102 Medical negligence; standards of recovery....
...REVERSED and REMANDED. HARRIS and DIAMANTIS, JJ., concur. NOTES [1] See § 768.40(1)(b), Fla. Stat. (1985); §
766.106, Fla. Stat. (1991). [2] Section 768.50(2)(b), Florida Statutes (1985) was repealed except to the extent that it was incorporated within section
766.102(1)....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 3120, 2010 WL 843881
...766.202(6)." Section
766.202(6) defines medical expert as "a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s.
766.102." Section
766.102(5) provides, "A person may not give expert testimony concerning the prevailing professional standard of care unless that person is a licensed health care provider and meets the following criteria." Subsections (a)(c) set forth differing criteria for expert witnesses depending upon the status of the person against whom or on whose behalf the testimony is being presented. Thus, under sections
766.203(2),
766.202(6), and
766.102(5), the written expert opinion that accompanies a claimant's notice of intent must be rendered by a person who (1) is "duly and regularly engaged in the practice of his or her profession," (2) has a degree in health care from a college or university, (3) is a licensed health care provider, and (4) satisfies the expert witness requirements set forth in section
766.102(5)....
...nd Huppman has conceded that Boyert is not licensed. Because Boyert does not meet these two requirements, she is not qualified to render a medical expert opinion under section
766.203(2) regardless of whether she meets the additional requirements of section
766.102(5)....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2005 WL 1523362
...Section
766.203, Florida Statutes (2003) requires a medical malpractice claimant to provide, in the presuit process, an affidavit of a medical expert. The definition of medical expert contained in section
766.202(6) is one who meets the requirement of a trial expert witness under section
766.102. Where the malpractice claim is against emergency room physicians, as in this case, section
766.102(9)(a) requires the expert to have had "substantial professional experience within the preceding five years while assigned to provide emergency medical services in a hospital emergency department." In this case, plaintiffs did not prov...
...to deal with emergency medical situations involving obstetrical patients and on those occasions had worked in conjunction with emergency room doctors. The trial court denied defendants' motion to dismiss because the court erroneously concluded that section 766.102(9)(a) applies only to experts testifying at trial and not experts making presuit affidavits....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2008 Fla. App. LEXIS 11593, 2008 WL 2906956
...claim with "a verified written medical expert opinion from a medical expert as defined in s.
766.202(6), at the time the notice of intent to initiate litigation is mailed." Section
766.202(6) requires an expert to meet the requirements contained in section
766.102. Because Drs. Paley and Katt are emergency room doctors, the expert must "have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department." §
766.102(9)(a), Fla. Stat. The trial court denied both motions to dismiss; however, we reversed that decision in Paley v. Maraj,
910 So.2d 282 (Fla. 4th DCA 2005). We held that the affiant on which the Marajs relied did not constitute a medical expert under §
766.102(9)(a), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1997 WL 430003
...2d DCA 1991), the court lamented the difficulty of interpreting chapter 766 because of the lack of comprehensive definitions. In Weinstock, our supreme court determined that psychologists were not included in any of the chapter 766 definitions of "health care provider." See § 766.102; § 768.50(2), Fla.Stat....
...ventures, or other associations for professional activity by health care providers. § 768.50(2)(b), Fla.Stat. (1985) (emphasis supplied). [4] Subsection 768.50(2)(b), Florida Statutes (1985), which was repealed in 1986, is incorporated only through section 766.102 which provides: (1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s....
...768.50(2)(b), the claimant shall have the burden of providing by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. § 766.102(1), Fla.Stat....
CopyCited 2 times | Published | Court of Appeals for the Eleventh Circuit | 1993 U.S. App. LEXIS 19190
...alleged duty. See NME Properties, Inc. v. McCullough,
590 So.2d 439, 441 (Fla.Dist. Ct.App.1991) (noting that simplest test for applicability of pre-suit requirements in Chapter 766 is whether the professional medical negligence standard of care at §
766.102 applies to alleged tortfeasor)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal
...hat the negligence resulted in injury to the claimant." (citing §
766.203(2)(a)-(b), Fla. Stat. (2016) ) ). 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....
...This statute defines a medical expert as: [A] person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102. 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....
...Any reference in Long of there being a less stringent standard for the qualification of experts in the presuit screening process for medical malpractice suits was dicta. Appellant also briefly raises for the first time on appeal the constitutionality of the "same specialty" requirements of section 766.102(5)(a)....
...Essex was initially the appellant in this case. She passed away shortly before oral argument, and the personal representative of her estate was substituted as a party. The Florida Supreme Court has recently declined to adopt the "same specialty" amendment to section
766.102(5)(a) "to the extent it is procedural." See In re Amendments to the Florida Evidence Code ,
210 So.3d 1231 , 1239 (Fla....
...tent that it is procedural does "not vitiate or overturn the statute," and "the statute remains the law in Florida." Clare ,
220 So.3d at 1262 (quoting Bivins v. Rogers ,
207 F.Supp.3d 1321 , 1326 (S.D. Fla. 2016) ). Because the constitutionality of section
766.102(5)(a) is not properly before us, the statute remains in effect....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2008 WL 34813
...it, secret jury deliberations would no longer exist if we knew exactly what went on in the jury room. Thus, we affirm the trial court's decision to allow the jurors to replicate the demonstration performed before the jury. The second issue involves section 766.102(3), Florida Statutes (2007). The appellants moved for directed verdict, in which counsel argued that section 766.102(3) shifted the burden of proof to the defense to prove that Dr. Hoffman was not negligent. Section 766.102(3) provides that "the discovery of the presence of a foreign body, such as a sponge ....
...There is evidence, the weight of the evidence is up to the jury. I only decide if there is evidence. So I'm going to deny your motion . . . because I think it's unquestionable that there is evidence. The parties have not cited, nor has our own research revealed any Florida case law interpreting section 766.102(3), Florida Statutes....
...years of experience as to this type of surgery. The jury is free to accept or reject any of this testimony. The trial court did not err in making it a jury question as to whether the defense met their burden in overcoming the presumption created by section 766.102(3), Florida Statutes....
...s performed in a controlled setting with surgical staff present to witness the procedure. Thus, we affirm as the trial court did not err in making it a jury question as to whether the defense met their burden in overcoming the presumption created by section 766.102(3), Florida Statutes....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 1992 WL 29052
...iff for failing to diagnose breast cancer. We affirm. As to defendants' first argument that the trial court erred in allowing expert testimony from a pathologist that defendants breached the standard of care, we conclude that there was no error. See § 766.102(2)(c)2, Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2006 WL 3523640
...Mirza's argument for requiring that each future defendant be individually named in the investigatory affidavit is not compelled or supported by the express language of section
766.203, Florida Statutes. The statute simply requires that before serving a notice of intent to initiate medical negligence litigation pursuant to section
766.102, "[C]orroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant's submission of a verified written expert opinion ....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2007 WL 3144829
...Ch. 2003-416, § 49, Laws of Fla. It appears that the purpose of the change was to remove the focus of the chapter from traditional medical malpractice to all situations of medical negligence involving diagnosis, treatment, and care. In addition, in section
766.102(1), Florida Statutes (2003), entitled "Medical negligence; standards of recovery; expert witness," the Legislature added a specific reference to section
766.202(4) which, as previously stated, now includes blood banks. Section
766.102(1), Florida Statutes, now provides: In any action for recovery of damages based on the death ....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2015 Fla. App. LEXIS 12951, 2015 WL 5057325
...ve the medical negligence standard of care, or “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” § 766.102(1), Fla....
...Our court said in Broadway v. Bay Hospital, Inc.,
638 So.2d 176 (Fla. 1st DCA .1994), that the test for determining if presuit requirements apply is “whether the defendant is directly or vicariously hable under the medical negligence standard of care as set forth in section
766.102(1), Florida Statutes.” Now, to be sure, sqme negligence suits alleged in medical contexts don’t implicate medical standards of care....
...rvised. But the district court found the claim to sound in medical negligence. It granted the hospital’s petition because the hospital’s liability “clearly ar[o]se from the rendering of, or failure to render, medical services,” determined by section 766.102’s medical standard of care....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 10388, 1995 WL 581130
...Stein and the hospital in the recovery room. The jury resolved the issues of whether plaintiff had a seizure as a result of negligence in favor of Dr. Stein and the hospital, and plaintiff argues on this appeal that the trial court erred in not instructing the jury on res ipsa loquitur. Section 766.102(4), Florida Statutes (1988) provides: The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury wa...
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2008 Fla. App. LEXIS 16424, 2008 WL 4643822
...reasonably prudent similar physician as being acceptable under similar conditions and circumstances." §§
458.331(1)(t);
456.072(2), Fla. Stat. (2007). Section
458.331(1)(t) further provides, "The board shall give great weight to the provisions of s.
766.102 when enforcing this paragraph." Section
766.102(3), Florida Statutes (2007), provides, "The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury...
CopyCited 1 times | Published | District Court, N.D. Florida | 1999 U.S. Dist. LEXIS 20009, 1999 WL 828631
...Reasonable care on the part of a physician is that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful physicians, that is, the prevailing professional standard of care. See, e.g., § 766.102, Fla....
...Those claims are not barred by Rooker-Feldman. [21] When, as here, board certified physicians are involved, the standard is that recognized by reasonably careful physicians with the same board certification; the standard is not determined by the practice in the particular locality. See § 766.102(2)(b), Fla.Stat....
CopyCited 1 times | Published | District Court, S.D. Florida | 2005 WL 3620200, 2005 U.S. Dist. LEXIS 30818
...The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. Section 766.102(1), Florida Statutes....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2014 Fla. App. LEXIS 18947, 2014 WL 6464646
...Simon does not “specialize in the same [or]
similar specialty that includes the evaluation, diagnosis, or treatment of the medical
condition that is the subject of the claim and have prior experience treating similar
patients,” as required by section 766.102(5)(a)1, Florida Statutes (2011).1
The central issue in the medical malpractice case as it pertains to Dr.
Nieves― albeit not the issue before us―appears to be whether Dr....
...Counsel for the personal representative argued that Dr. Simon was a
perfectly appropriate expert on this issue because the claim against Dr. Nieves was
not based upon his orthopedic skills, but only his alleged post-operative
1 The legislature deleted the “similar specialty” alternative from section
766.102(5)(a)1 effective July 1, 2013....
CopyCited 1 times | Published | Supreme Court of Florida | 2013 WL 2349287
...providers], then, in order to prevail, (claimant) must show by the greater weight of the evidence that his or her injury was not within the necessary or reasonably foreseeable results of the treatment or procedure.] NOTES ON USE FOR 402.4a 1. See F.S. 766.102. Instruction 402.4a is derived from F.S. 766.102(1) and is intended to embody the statutory definition of “prevailing professional standard of care” without using that expression itself, which is potentially confusing. 2. The second bracketed paragraph is derived from F.S. 766.102(2)(a) and should be given only in cases involving a claim of negligence in affirmative medical intervention....
...Foreign bodies: [Negligence is the failure to use reasonable care.] The presence of (name of foreign body) in (patient’s) body establishes negligence unless (defendant(s)) prove(s) by the greater weight of the evidence that [he][she][it] was not negligent. NOTES ON USE FOR 402.4c 1. This instruction is derived from F.S. 766.102(3)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...Rodriguez’
eye infection.
After a stay requested by Dr. Nicolitz was denied and after
leave was granted to file the amended complaint, Dr. Champion
moved to dismiss that amended complaint. Dr. Champion argued
that the notice of intent to initiate litigation did not comply with
section 766.102(5)(a), Florida Statutes (2012), which mandates
that in litigation involving a specialist defendant, a plaintiff’s
expert be of the same or similar specialty as the defendant....
...In support of her position, Dr. Champion cited
Edwards v. Sunrise Ophthalmology Assoc.,
134 So. 3d 1056 (Fla.
4th DCA 2013), where the reviewing court held that an
ophthalmologist and an infectious disease specialist were too
dissimilar to satisfy section
766.102(5)(a) under the facts of that
case.
The trial court here agreed that Dr....
...Nicolitz
on January 13, 2014, should also apply to Dr. Champion as the
doctors are in a “legal relationship.” The trial court conducted an
evidentiary hearing to determine whether the doctors were in a
1 The parties disagree whether the trial court applied the
2012 or 2013 version of section 766.102(5)(a). The 2013 version
requires that a plaintiff’s expert be of the same specialty as the
defendant. On appeal, the parties agree that the 2012 version of
section 766.102 applies....
...(2012).
A medical expert as defined in section
766.202(6) is “a
person duly and regularly engaged in the practice of his or her
profession who holds a health care professional degree from a
university or college and who meets the requirements of an
expert witness as set forth in s.
766.102.” (Emphasis added).
An expert witness as defined in section
766.102 is, in turn, a
“health care provider who holds a valid and active license and
conducts a complete review of the pertinent medical records,” and
if the expert witness is presented as a specialist, the expert must
[s]pecialize...
...ential
defendant]; or specialize in a similar specialty that
includes the evaluation, diagnosis, or treatment of the
medical condition that is the subject of the claim and
have prior experience treating similar patients; . . . .
§ 766.102(5)(a)1, Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal
...a physician who specializes in plastic surgery, offered opinions regarding the medical care provided by Dr. Riggenbach, who specializes in orthopedic surgery. Because Rhodes failed to comply with the requirement of sections
766.203, 776.202(6), and
766.102(5)(a), Florida Statutes (2014), that he provide a written medical expert opinion from a specialist in the same specialty as the defendant health care provider, the complaint should have been dismissed, unless those statutory provisions are found to be unconstitutional for the reasons previously asserted by Respondent....
...Statutory Evolution of Expert Witness Specialty Requirement Prior to July 2013, the presuit statute authorized opinion testimony from an expert witness against the defendant doctor *554 who practiced in "the same or similar specialty " as the defendant doctor. § 766.102(5)(a), Fla. Stat. (2012) (emphasis added). The phrase "similar specialty" was defined as a specialty that included the evaluation and treatment of the medical condition that was the subject of the medical negligence claim. Id. The 2012 version of section 766.102 also allowed the trial court to determine whether the expert was qualified on grounds other than those specified in the statute. Id. § 766.102(14)....
...perience as a medical evacuation flight surgeon in order to admit his testimony, although he was testifying against an emergency room physician.
45 So.3d 873 , 877 (Fla. 2d DCA 2010). The Second District found that under the then-existing version of section
766.102, the emergency medicine experience of the proposed expert witness was sufficient to admit his testimony, as it fell under the "grounds other than the qualifications in this section" language, which in 2010 was found in section
766.102(12)....
...timony is offered; and 2. Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to: a. The active clinical practice of, or consulting with respect to, the same specialty ; § 766.102(5), Fla....
...Unless the trial court finds the relevant statutes unconstitutional, it shall enter an order dismissing Respondent's complaint with prejudice. PETITION GRANTED, ORDER QUASHED, REMANDED WITH INSTRUCTIONS. ORFINGER and SASSO, JJ., concur. The Staff Analysis for the Senate Bill that amended section 766.102 in 2013 specifically explained the effect of the amendment: The bill amends s. 766.102(5), F.S., to limit the class of specialists qualified to offer expert testimony in a medical negligence action against a defendant specialist, to those specialists who practice in the same specialty as the defendant. The bill repeals s. 766.102(14), F.S....
...Adventist Health Systems/Sunbelt, Inc. and reinstating the holding in Barrio v. Wilson . Accordingly, the repeal of the subsection appears to remove the discretion of the court to qualify or disqualify an expert witness on grounds other than the specific qualifications specified in ss. 766.102(5) -(9), F.S....
CopyCited 1 times | Florida 3rd District Court of Appeal
...5th DCA 2011) (“The test for determining whether a defendant is
2
entitled to the benefit of the presuit screening requirements of section
766.106 is whether a defendant is liable under the medical negligence
standard of care set forth in section
766.102(1).” (internal citations omitted));
Univ....
CopyCited 1 times | Florida 5th District Court of Appeal
...5th DCA
2023) (stating appellate court gives less deference to trial court’s
factual findings based on video evidence); Morris v. Muniz,
252 So.
3d 1143, 1154–55 (Fla. 2018) (examining de novo whether an
expert’s unrefuted qualifications met the requirements of section
766.102, Florida Statutes)....
CopyCited 1 times | Florida 5th District Court of Appeal
...ve
jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3),
which provides for interlocutory review of nonfinal orders that
“deny a motion to dismiss on the basis of the qualifications of a
corroborating expert witness under subsections 766.102(5)–(9),
and (12), Florida Statutes[.]” Fla....
...The referenced statutory provisions address the
necessary qualifications of persons seeking to offer expert opinion
concerning the prevailing professional standard of care in
corroboration of claims of negligence as part of the presuit
investigation process required of medical malpractice claims. See
§ 766.102(5)–(9), (12), Fla....
...Stat.
(emphasis added).
4 “‘Medical expert’ means a person duly and regularly engaged
in the practice of his or her profession who holds a health care
professional degree from a university or college and who meets the
requirements of an expert witness as set forth in s.
766.102.” §
766.202(6), Fla....
CopyCited 1 times | Florida 2nd District Court of Appeal
...2d DCA 2010)).
In an action under chapter 766, an expert witness may not testify
to the professional standard of care against a specialist unless that
expert witness "[s]pecialize[s] in the same specialty as the health care
provider against whom or on whose behalf the testimony is offered."
§ 766.102(5)(a)1....
....
Dickens,
151 So. 3d 434, 441 (Fla. 2014). "The duty element requires a
physician to act within the standard of professional care," which is "the
care that a reasonably prudent physician would provide." Id.;
7
§
766.102(1)....
...cedure," a plaintiff must
show that a claimed injury resulting from the procedure was not of the
type "within the necessary or reasonably foreseeable results of" that
procedure when carried out "by a reasonably prudent similar health care
provider." § 766.102(2)(a)....
...Supp. 2d at 1082, Dr. Helderman's testimony that he would not have
ordered the testing Dr. Blackshear ordered was a direct comment on the
"prevailing professional standard of care" for a health care provider
engaged in Dr. Blackshear's specialty. See § 766.102(5)(a)....
...leaded issue from being
tried by consent").
Dr. Helderman's testimony from the standpoint of a nephrologist
was mere smoke and mirrors and thus improperly encroached on the
standard of care in a case against a vascular surgeon, running afoul of
section 766.102(5)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 18779
...of Pensacola,
635 So.2d 945, 947 (Fla, 1994) (citing Baskerville-Donovan Eng’rs, Inc. v. Pensacola Exec. House Condo. Ass’n,
581 So.2d 1801 , 1303 (Fla. 1991)). Thus, we deny the petition without prejudice to raise the issue of noncompliance with section
766.102 if a revised complaint or discovery more clearly demonstrates that Respondents cannot prove their case without establishing a violation of a professional standard of care....
..."Jane Doe" described in the complaint was subsequently-identified in the proceedings as Petitioner Julia Reyes. . In Lindberg , our supreme court interpreted section 768,57, Florida Statutes, which was renumbered in 1988 as section
766.106, Florida Statutes. Ch. 98-166, § 164, at 2128, Laws of Fla. . Section
766.102(1), Florida Statutes (2015), provides: [T]he claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2000 WL 1153999
...Jackson of Grower, Ketcham, More, Rutherford, Noecker, Bronson, Siboni & Eide, P.A., Orlando, for appellees Darshan Shah and Southern Emergency Physicians. PER CURIAM. In this medical malpractice action, the trial court determined that Appellant's expert was not qualified under section
766.102(6)(a)(b), Florida Statutes, to render an opinion as to the standard of care of emergency room physicians. See Franklin v. Public Health Trust of Dade County,
759 So.2d 703 (Fla. 3d DCA 2000)(physician lacking recent professional emergency care experience was not qualified to provide expert medical testimony under section
766.102(6)(a)(b), Florida Statutes)....
CopyCited 1 times | Published | District Court, M.D. Florida | 2000 U.S. Dist. LEXIS 20070, 2000 WL 1742037
...In this case, Plaintiff has brought suit against Citrus Memorial Health Foundation, Inc. ("Citrus Memorial"), as well as two private physicians, for violations of the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, et seq. ("EMTALA") and for medical malpractice under Florida law, section 766.102 of the Florida Statutes....
...ount V of the Complaint, is governed by Florida law. See Erie R. Co. v. Tompkins,
304 U.S. 64, 78,
58 S.Ct. 817, 822,
82 L.Ed. 1188 (1938). The Florida Legislature has promulgated standards for recovery in medical malpractice claims, as set forth in section
766.102 of the Florida Statutes. Section
766.102(1) provides that a plaintiff in a medical malpractice claim has the burden of proving by the greater weight of the evidence that the actions of a defendant health care provider breached the prevailing professional standard of care for that provider....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...medical malpractice act, chapter 766 of the Florida Statutes (2013), Hospital
argued that (i) Simmons’s complaint – alleging Hospital’s failures of security,
supervision and training – essentially asserted a “breach of the prevailing
professional standard of care,” § 766.102(1), Fla....
...ed into the distinction between
a medical malpractice and an ordinary negligence claim, concluding that the
determinative factor is whether the plaintiff, in order to prevail, must rely upon the
medical negligence standard of care as set forth in section 766.102(1).6 See, e.g.,
Acosta v....
...cate
medical negligence standard of care, and therefore sounded in ordinary
negligence); S. Miami Hosp., Inc. v. Perez,
38 So. 3d 809, 811-12 (Fla. 3d DCA
2010); Tenet S. Fla. Health Sys. v. Jackson,
991 So. 2d 396, 399-400 (Fla. 3d DCA
5 See §
766.102, Fla....
..., the
claimant shall have the burden of proving by the greater weight of
evidence that the alleged actions of the health care provider
represented a breach of the prevailing professional standard of care for
that health care provider.
§ 766.102(1), Fla. Stat. (2013). The alleged “breach of the prevailing professional
standard of care” must be testified to by a qualified medical expert. § 766.102(5),
Fla....
...court concluded that no “psychiatric treatment decisions resulted in [Joseph’s]
exposure to the injury he suffered.” Id. at 919-20. The court held that a claim is
one for medical malpractice when a defendant is liable under the medical
negligence standard of care set forth in section 766.102(1)....
...This
inquiry involves determining whether proving the claim requires the
plaintiff to establish that the allegedly negligent act ‘represented a
breach of the prevailing professional standard of care,’ as testified to
by a qualified medical expert.
Townes,
242 So. 3d at 311-312 (quoting §
766.102(1), Fla....
...ntanilla, were not
occasioned by acts directly related to medical care or treatment implicating an
8 See footnote 7, supra.
10
inquiry into the medical malpractice standard of care articulated in section
766.102(1).
IV....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2012 Fla. App. LEXIS 5627, 2012 WL 1232730
...The court ruled that LifeSouth is a health care provider, as defined in section
766.202(4), but it denied LifeSouth’s motion to dismiss the complaint, concluding that a blood recipient’s claim against a blood bank was not considered a claim for medical malpractice under section
766.102(1) Florida Statutes (2008)....
CopyPublished | Florida 2nd District Court of Appeal
...the critical care pulmonology consultation.
2
Twice prior to the expiration of the presuit period and expiration of
the statute of limitations, Dr. Ghamra and Lung Associates advised Ms.
Williams that Dr. Willis's affidavit did not comply with section 766.102
and the presuit requirements to filing a medical malpractice action.
In response to the amended complaint filed by Ms....
...ing offered and that because
Dr. Willis does not specialize in the same specialty as Dr. Ghamra, Ms.
Williams had not complied with the legal requirements of filing suit
before the statute of limitations expired such that dismissal was
required. See § 766.102(5)(a).
Ms....
...Section
766.202(6) defines "[m]edical expert"
as "a person duly and regularly engaged in the practice of his or her
profession who holds a health care professional degree from a university
or college and who meets the requirements of an expert witness as set
forth in [section]
766.102."
Section
766.102, in turn, provides that "[a] person may not
give expert testimony concerning the prevailing professional
standard of care unless the person is a health care provider
who holds an active and valid license and conducts a complete
review of the pertinent medical records and meets [certain]
criteria . . . . " §
766.102(5), Fla. Stat. (2016). These certain
criteria depend on the type of health care provider "against
whom . . . the testimony is offered." Id.
Univ. of Fla. Bd. of Trs. v. Carmody,
372 So. 3d 246, 249 (Fla. 2023)
(alterations in original).1 Section
766.102(5)(a) lists criteria for a
specialist, while section
766.102(5)(b) lists criteria for a general
practitioner. As applicable here, because neither party disputes that Dr.
Ghamra is a specialist and not a general practitioner, "the expert witness
must . . . [s]pecialize in the same specialty" as Dr. Ghamra. See
§
766.102(5)(a)1.
Neither specialty nor specialist is defined in chapter 766. And as
the supreme court has noted, in the absence of definitions "[a] great deal
of litigation has occurred as a result of attempting to interpret and apply
the provisions of [section]
766.102(2)." Morris v....
...So. 3d at 598
(quoting Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997)). Looking to
the textual and structural clues of the statute provides greater clarity.
In addition to setting out the criteria required for an expert witness
to testify, section
766.102(5) also states that the "expert testimony
concern[s] the prevailing professional standard of care." And section
766.102(1) provides parameters for "[t]he prevailing professional
standard of care for a given health care provider." (Emphasis added.) It
is important to recognize that section
766.102 addresses expert
testimony in medical malpractice actions, but it is applicable both in trial
and for presuit purposes without differentiation.
Here, Dr. Ghamra was the pulmonologist who saw Mr. Williams in
response to the request for a pulmonology consultation. Based on the
clear language of sections
766.102(1) and (5), the prevailing professional
standard of care concerns pulmonology....
...literally and is not synonymous with physicians with different specialties
providing similar treatment to the same areas of the body."), disapproved
of on other grounds by Carmody,
372 So. 3d 246.
This conclusion is buttressed by additional textual clues. Section
766.102(5) differentiates between specialists and general practitioners,
providing criteria for each type of expert witness....
...cluding those related
to obstetrics." Generalist, Stedmans Medical Dictionary 366900 (2014).
Finally, our conclusion is also supported by the legislature's
progressive narrowing of the medical expert qualifications for purposes of
chapter 766. Section 766.102 has been amended multiple times, with
the most recent being in 2013.
Prior to 2013, section 766.102(5) provided that if the
intended defendant was a specialist, the corroborating
medical expert opinion had to come from a health care
provider who specialized in either the same specialty or "in a
similar specialty that includes the evaluation, diagnosis, or
treatment of the medical condition that is the subject of the
claim." § 766.102(5)(a)(1), Fla. Stat. (2012). In addition, the
statute provided that it did "not limit the power of the trial
court to disqualify or qualify an expert witness on grounds
other than the qualifications in this section." § 766.102(14),
Fla....
...Lynch,
220 So. 3d 1258, 1261 (Fla. 2d DCA 2017), disapproved
of on other grounds by Carmody,
372 So. 3d 246.
In discussing the 2013 amendment, the supreme court stated that
[b]y deleting subsection (14)—which had provided that
nothing in section
766.102 "limit[ed] the power of the trial
court to disqualify or qualify an expert witness on grounds
other than the qualifications in this section"—the Legislature
eliminated an explicit and substantial basis for trial court
discretion....
...3d at 1261, disapproved of on other grounds
by Carmody,
372 So. 3d 246. The legislature has authority to impose
conditions on the initiation of medical malpractice suits, and while the
supreme court has "emphasize[d] that we must construe sections
766.102 and
766.202 in a manner that favors access to the courts, never
did it endorse" the proposition that "any qualification requirement that
has the effect of narrowing the universe of available experts in a way that
might foreclose a medical-malpractice claim" is an access-to-the-courts
defect....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 9741, 1993 WL 392244
PER CURIAM. Because we find clear error in the trial court’s exclusion of the testimony of the plaintiffs’ proposed expert witnesses under section 766.102, Florida Statutes (1991), the summary judgment entered below on that basis is reversed and the cause is remanded for trial as to all defendants.
CopyPublished | Florida 2nd District Court of Appeal
...SMITH, Judge.
Maria Martinez appeals from an order dismissing with
prejudice her medical malpractice complaint against Don John
Perez Ortiz, M.D., and Perez Eye Center, P.L., for failing to comply
with the presuit requirements of sections 766.102(5), .106, .202(6),
and .203(2), Florida Statutes (2015)....
...2017, were not accompanied by an affidavit from a medical expert;
(2) the expert affidavit of Dr. Hamburger does not satisfy the presuit
requirements because Dr. Hamburger does not practice in the
"same specialty" as Dr. Perez Ortiz, pursuant to section
766.102(5)(a)1; and (3) because Dr. Hamburger's affidavit cannot
satisfy the requirements of sections 766.102(5)(a)1, .202(6), and
.203(2), Ms....
...See §
766.203(2).
The trial court determined that while Ms. Martinez provided Dr.
Perez Ortiz and Perez Eye Center with an affidavit from Dr.
Hamburger, Dr. Hamburger does not practice in the "same
specialty" as Dr. Perez Ortiz, as required by section
766.102(5)(a)1.
Specifically, the trial court found
5
Dr....
...Under the clear language
of section
766.202(6), "medical expert" is defined as "a person duly
and regularly engaged in the practice of his or her profession who
holds a health care professional degree from a university or college
and who meets the requirements of an expert witness as set forth in
s.
766.102."
Section
766.102(5), in turn, provides in relevant part:
(5) A person may not give expert testimony
concerning the prevailing professional standard of care
unless the person is a health care provider who holds an
active and...
...specialist, the expert witness must:
1. Specialize in the same specialty as the health
care provider against whom or on whose behalf
the testimony is offered . . . .3
3 The previous version of section 766.102(5)(a)1 provided that
to offer testimony against a specialist, the expert witness must
"[s]pecialize in the same specialty as the health care provider
against whom . . . the testimony is offered; or specialize in a similar
specialty that includes the evaluation, diagnosis, or treatment of the
medical condition that is the subject of the claim and have prior
experience treating similar patients." § 766.102(5)(a)1, Fla....
...scheme must be interpreted liberally so as not to unduly restrict a
Florida citizen's constitutionally guaranteed access to the courts,
while at the same time carrying out the legislative policy of
screening out frivolous lawsuits and defenses."); Patry v. Capps, 633
amended section 766.102(5)(a)1 to remove the "similar specialty"
language. Ch. 2013-108, § 2, Laws of Fla. Accordingly, the statute
now requires that the expert must "[s]pecialize in the same specialty
as the health care provider against whom . . . the testimony is
offered." § 766.102(5)(a)1, Fla....
...complaint arguing that a board-certified podiatrist is not in the
same specialty as a board-certified orthopedic surgeon. Id. And we
agreed. We held that the plaintiff's expert affidavit failed to "meet
the requirements of the plain language of section 766.102(5),"
where it was undisputed that Dr....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 7087, 1990 WL 133794
...consent. We reverse and remand for a new trial. Appellants have raised numerous issues. They argue that the trial court erred by denying their request for a jury instruction based upon section 768.45(4), Florida Stat *1339 utes (1983) [renumbered as section 766.102, Florida Statutes (1988 Supp.) ], and by failing to declare a mistrial or offer a curative instruction from the statute when counsel for appellee argued that the existence of the injury alone constituted evidence of negligence....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 13820, 2015 WL 5455619
...nce
of (name of foreign body) in (patient’s) body establishes negligence
unless (defendant(s)) prove(s) by the greater weight of the
evidence that [he] [she] [it] was not negligent.
(Emphasis in original). The instruction is derived from section 766.102(3),
Florida Statutes, which provides that a plaintiff generally maintains the
burden of proving a breach of the professional standard of care, but that
“the discovery of the presence of a foreign body . . . commonly used in
surgical, examination, or diagnostic procedures, shall be prima facie
evidence of negligence . . . .” See id. at n.1; § 766.102(3)(b), Fla....
...Neither the
Dockswells nor the hospital submitted the instructions as requested by
the trial court.
The trial court ultimately denied the requested instruction, explaining
that the Dockswells had the ability to present direct evidence of the nurse’s
negligence, whereas the word “discovery” in section 766.102 (and thus the
instruction) suggests a situation where a patient is uncertain as to where
responsibility for negligence lies....
...in the case support the giving of the instruction, and (3) the instruction
was necessary to allow the jury to properly resolve the issues in the case.”
Florio v. Eng,
879 So. 2d 678, 680 (Fla. 4th DCA 2004) (citation omitted).
The foreign body instruction is derived from section
766.102(3), which
provides in pertinent part:
(b) The existence of a medical injury does not create any inference
or presumption of negligence against a health care provider, and the
claimant must maintain the burden of proving that...
...treatment which justifies the res ipsa inference.” Kenyon v. Miller,
756 So.
2d 133, 136 (Fla. 3d DCA 2000) (emphasis in original) (citations omitted).
1In Borghese, the court was interpreting section 768.45(4), which was eventually
renumbered as section
766.102(4), then as
766.102(3)....
...doctrine of res ipsa loquitur applies to this case. Thus, the majority opinion
affirms the trial court on a legal analysis that was not argued by the parties
below or used by the trial court. Instead, the issue to be resolved by us
on appeal is how the first and last sentences of section 766.102(3)(b),
Florida Statutes (2011), apply to a set of facts.
6
The primary factual scenario that underlies the analysis in this case is
that a 4.25 inch drainage tube, placed during surgery for temporary post-
operative use, broke and remained inside of Mr. Dockswell’s abdomen
when the rest of the tube was removed by a nurse. In determining the
application of the first and last sentences of section 766.102(3)(b), it is
important to recognize the universe of explanations as to how or why the
drain tube broke: either (1) the surgeon did something wrong; (2) the nurse
did something wrong; or (3) the tube was latently defective before it was
placed inside the abdomen.
In understanding the application of the first and last sentences of
section 766.102(3)(b), it is also important to recognize the overall structure
of legal concepts set forth by the legislature in adopting section 766.102.
Section 766.102 establishes the threshold requirements for filing a
medical negligence suit and the evidentiary standards for proving the
claim....
...However,
the discovery of the presence of a foreign body, such as a
sponge, clamp, forceps, surgical needle, or other
paraphernalia commonly used in surgical, examination, or
diagnostic procedures, shall be prima facie evidence of
negligence on the part of the health care provider.
§ 766.102(3)(b), Fla. Stat. (2011).
The first sentence of section 766.102(3)(b) codifies the principle that a
medical injury does not create any inference or presumption of negligence
by a health care provider....
...That principle recognizes there are inherent
risks in all medical procedures.2 Thus, the first sentence provides, in
essence, that a bad outcome (the condition was not successfully
remediated or a new problem was created) is not proof of negligence by the
medical provider. The last sentence of section 766.102(3)(b) provides an
exception to the general rule established by the first sentence.3 The last
sentence provides, in essence, that if a medical procedure has the
2 The most basic risk, among the many, is a misdiagnosis of the condition...
...To “discover” means
“to obtain sight or knowledge of for the first time.” Id. According to
Webster’s, a synonym for “discover” is “unearth,” which “implies bringing
to light something forgotten or hidden.” Id.
I agree with the Dockswells that the last sentence of section
766.102(3)(b) codifies and expands “the Zeagler Rule” espoused in our case
law during the 1930’s in Smith v....
...and
stated:
That rule [referring to “the Zeagler rule”] applied to the case
here since the operation was performed in January, 1976. On
July 1, 1976, Section 768.45(1), Florida Statutes (1977),
[which subsequently became section 766.102(3)(b)] became
effective, and provides unlike Zeagler that the discovery of the
presence of a sponge is only prima facie evidence of the health
care provider’s negligence....
...Assuming the action commenced before the effective date of
Section 768.45(1), otherwise the statute’s provisions control.
Id. at 238 n.5. (emphasis added). Thus, the First District recognized,
shortly after the enactment of section 768.45(1) (the predecessor to section
766.102(3)(b)), that the statute established prima facie evidence of
negligence by a health care provider when an unintended foreign body
remains, and “the Zeagler rule” was no longer limited to surgeons.
9
I contend the last sentence of section 766.102(3)(b) is a recognition by
the legislature that the first sentence of the section places too onerous a
burden on the claimant to show a breach of the standard of care, when
the universe of explanations for why a foreign body remained i...
...ermination
that prima facie evidence of negligence is established, additional
affirmative evidence of negligence does not erase the prima facie
determination. The trial court’s view of the meaning of “discovery” as used
in the last sentence of section 766.102(3)(b) imports words into the statute
that are not there....
...Thus, I would reverse and remand for a new trial
because the trial court failed to give an instruction to which the Dockswells
were entitled.
* * *
Not final until disposition of timely filed motion for rehearing.
4 If, by the adoption of section 766.102(3)(b), the legislature intended to
completely abolish the application of res ipsa loquitur in medical malpractice
cases, it makes sense that the legislature concluded it places too onerous a
burden on the claimant to show a breach of...
CopyPublished | Supreme Court of Florida
(Medical Negligence), which is derived from section
766.102(2)(a), Florida Statutes, and concerns the standard
CopyPublished | District Court of Appeal of Florida | 1997 WL 611526
...Bader regarding the standard of care for internists on the rationale that Dr. Price is a general practitioner or provided only general practitioner care to Pittman. Accordingly, the lower court ruled that Dr. Bader did not satisfy the expert witness requirements of section 766.102(2)(b), Florida Statutes (1991). For the reasons discussed below, this ruling was error, and the record does not conclusively demonstrate that it was harmless error. Exclusion of Expert Testimony Section 766.102(1) requires that a party seeking damages based upon death or personal injury resulting from the negligence of a health care provider must establish that negligence based upon proof that the health care provider breached the prevailing standard of care that is recognized by reasonably prudent “similar health care providers” as acceptable " and appropriate. Section 766.102(2)(b) provides in pertinent part that if a health care provider who is alleged to have been negligent “holds himself out as a specialist,” a similar specialist may testify as to the standard of care. 1 In the instant case, *597 there is no dispute that Dr. Bader is a specialist in internal medicine. Thus, should Dr. Price be considered as a specialist in internal medicine, under section 766.102(2)(b) Bader would qualify to testify as to the standard of care for internal medicine specialists....
...Our review of the undisputed facts in the record convinces us that he did. Although the admissibility of expert testimony is generally within the discretion of the trial court, see Ortagus v. State,
500 So.2d 1367, 1371 (Fla. 1st DCA 1987), because the statutory criteria under section
766.102 were met, the trial court below abused its discretion by precluding the testimony of a “similar health care provider.” The determination as to whether a health care provider “holds himself out as a specialist” under the statute is a fact question for the trial court....
...Price represented himself to the public as a general practitioner, as found by the lower court. The fact that Dr. Price did not represent that he is “certified” in internal medicine is not dispositive for determining the defendant’s status under section 766.102(2)(b)....
...in the record. The relevant inquiry of the trial court for determining the required specialist training and qualifications of an expert is whether the defendant physician, during the course of medical treatment, satisfied any of the three prongs of section 766.102(2)(b)....
...See Florida Dep’t of Education v. Glasses
622 So.2d 944 (Fla.1993). Conclusion We find the other issues raised to be without merit. Accordingly, we affirm in part, reverse in part, and remand for a new trial. WOLF, J., concurs. BENTON, J., concurs with written opinion. . Section
766.102(2)(b) provides: If the health care provider whose negligence is claimed to have created the cause of action is certified by the appropriate American board as a specialist, is trained and experienced in a medical specially, or holds himself out as a specialist, a "similar health care provider” is one who: 1....
CopyPublished | Florida 5th District Court of Appeal
...2023), by which the Court amended
Florida Rule of Appellate Procedure 9.130(a)(3) to provide for
interlocutory review of nonfinal orders that “deny a motion to
dismiss on the basis of the qualifications of a corroborating
expert witness under subsections 766.102(5)–(9), Florida
Statutes.” Fla....
...1 In July 2023, the Florida Supreme Court, sua sponte,
amended “Florida Rule of Appellate Procedure 9.130(a)(3) to
provide for interlocutory review of nonfinal orders that deny a
motion to dismiss on the basis of the qualifications of a
corroborating witness under subsections
766.102(5)-(9), Florida
Statutes.” Univ. of Fla. Bd. of Trs. v. Carmody, No. SC2022-0068,
48 Fla. L. Weekly S150 (Fla. July 6, 2023); In re Amend. to Fla.
Rule of App. Proc. 9.130,
367 So. 3d 1204 (Fla. 2023). Section
766.102(5)-(9) specifically outlines the requirements for who may
qualify to give standard of care testimony dependent upon who
allegedly committed the negligence, i.e., the sufficiency of the
presuit affidavit....
CopyPublished | Florida 1st District Court of Appeal | 2003 Fla. App. LEXIS 15384, 2003 WL 22331156
...In this medical malpractice case, the plaintiffs below maintain that the trial court erred when it disposed of their claim by summary judgment on the stated grounds that their only expert witness was not qualified to testify at trial. On appeal, they argue that the ruling that their medical expert was unqualified under section 766.102, Florida Statutes (2002), was error....
...Telle could not testify because he did “not possess sufficient training, experience, and knowledge as a result of the active involvement and the practice of OB/GYN within the five-year period preceding” the incident. Specifically at issue in the present appeal is the proper application of section 766.102(2)(c)(2), Florida Statutes (2002), 2 which allows testimony from an expert who is not a similar health care provider ......
...incident giving rise to the claim. This language does not require that the expert who is to testify practice the same specialty as the defendant who has been accused of malpractice. See, e.g., Meyer v. Caruso,
731 So.2d 118, 119 (Fla. 4th DCA 1999). Section
766.102(2)(c)(2), Florida Statutes (2002), permits a physician to testify as an expert against another physician with a different specialty when the testifying physician possesses sufficient training, experience, and knowledge as a result of...
...medicine during the five years immediately prior to the incident giving rise to the claim. In a medical malpractice action, the requirements for an expert to testify in judgment of another health care provider’s actions or inactions are defined by section 766.102, Florida Statutes (1991)....
...he 1985 amendments to the medical malpractice statute, is that the individual’s training, experience or knowledge be a result of “active involvement in the prae- *1244 tice or teaching of medicine” within the five years preceding the incident. § 766.102(2)(c)(2), Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal | 2000 WL 1504940
...ne occasion by pointing out his lack of formal training. Allowing the testimony of this medical ethicist in this medical malpractice case was error. Father Paris was not qualified to render opinions about a medical standard of care. See §§
90.702,
766.102(2)(c), Fla....
...A decision concerning the termination of resuscitation efforts is probably an example of an area in which the standard of care includes an ethical component. The standard of care, however, still involves the level of care owed by a similar health care provider and not that owed by an ethicist. See § 766.102(2)(c)....
CopyPublished | Florida 4th District Court of Appeal | 2000 Fla. App. LEXIS 13203, 25 Fla. L. Weekly Fed. D 2453
PER CURIAM. Affirmed. See § 766.102, Fla....
CopyPublished | Florida 4th District Court of Appeal | 1997 Fla. App. LEXIS 13281, 1997 WL 731735
...er. The defense expert did not state his opinion based on a “reasonable degree of medical probability,” but that omission did not render his affidavit legally insufficient. The standard under Florida’s Medical Malpractice Act, Florida Statutes section 766.102(1)(1995), is proof “by the greater weight of the evidence.” In Haas v....
CopyPublished | Florida 5th District Court of Appeal
...Charles Edward
Kollmer, M.D., and New Smyrna Orthopedics, P.A. (collectively,
“Defendants”). This medical-malpractice appeal requires us to
decide whether Plaintiff’s alleged expert, Dr. Richard Shure, M.D.,
was a “medical expert” qualified under sections
766.102(5) and
766.202(6), Florida Statutes (2019), to provide a pre-suit,
corroborating “verified written medical expert opinion,” as
required by section
766.203(2)....
...nion for
Plaintiff, his sole employment was as an expert witness at R.L.
Shure, M.D., Consulting, LLC. Defendants served several pre-suit
discovery requests concerning whether Dr. Shure was qualified to
provide a corroborating opinion under sections
766.102 and
766.202....
...Plaintiff timely appealed.
3
II.
On appeal, Plaintiff assigns error to the circuit court’s
conclusion that Dr. Shure was unqualified to serve as a pre-suit
corroborating expert under sections
766.102 and
766.202....
...Section
766.202(6), in turn, defines “[m]edical expert” as “a person duly
and regularly engaged in the practice of his or her profession who
holds a health care professional degree from a university or college
and who meets the requirements of an expert witness as set forth
in section
766.102.” §
766.202(6), Fla. Stat. And section
766.102
provides, in relevant part:
(5) A person may not give expert testimony
concerning the prevailing professional standard
of care unless the person is a health care
provider who holds an active and...
...in the
same specialty; or
c. A clinical research program that is
affiliated with an accredited health professional
school or accredited residency or clinical
research program in the same specialty.
§ 766.102(5)(a), Fla....
...his recent professional activities to acting as a ‘litigation expert’”
“was not ‘duly and regularly engaged in the practice of his
profession’” (quoting §
766.202(5), Fla. Stat. (1993))).
Second, Dr. Shure was not a “health care provider” as required
by section
766.102(5) because, as a legal consultant, he did not
5
provide any health care....
...In its proper context, then, section
766.202(4) does not
broaden the plain meaning of “health care provider”—one who
provides health care. Instead, it narrows that plain meaning by
specifying particular kinds of licensees who provide health care to
patients. Likewise, and most pertinent to this appeal, section
766.102—on its face—treats one’s status as a health care provider
as distinct from his licensure. See §
766.102(5) (“A person may not
give expert testimony concerning the prevailing professional
standard of care unless the person is a health care provider who
holds an active and valid license . . . .”). Therefore, section
766.102
also accords “health care provider” its common meaning.
In the end, we must conclude that section
766.102 uses the
term “health care provider” according to its plain meaning: one
who provides health care to patients. Thus, a legal consultant who
has no patients is not a health care provider. Because Dr. Shure
1 We received adversarial briefing on the question whether Dr.
Shure met section
766.102(5)’s qualifications....
...Hosp. & Clinics, Inc.
v. Mercury Ins. Co. of Fla.,
97 So. 3d 204, 212 (Fla. 2012), during
oral argument, we gave the parties an opportunity to be heard on
the predicate question whether Dr. Shure is a “health care
provider” within the meaning of section
766.102(5). Defendants
argued that he is not, and we agree.
6
did not provide any health care to any patient after December 31,
2014, he failed to meet section
766.102(5)’s requirement that an
expert be a health care provider.
III.
Plaintiff urges us to look beyond the statutory text to the
purpose of the pre-suit screening requirements, stressing that the
Fl...
...The Court in Morris held that,
because the defendants “presented no evidence to refute” the
expert’s sworn statements that she had regularly treated patients
until March 2008 while attending law school, the undisputed facts
established that she was qualified under sections
766.102 and
766.202....
...That theory, if accepted, would
eviscerate the Legislature’s authority to impose conditions on the
initiation of medical-malpractice suits. We find no support, in
either law or logic, for such a broad assertion. While the Court in
Morris did emphasize that we must construe sections
766.102 and
766.202 in a manner that favors access to the courts, see, e.g., id.
at 1146, 1151, 1154, 1159, never did it endorse so sweeping a
proposition....
CopyPublished | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 17190, 35 Fla. L. Weekly Fed. D 2505
...766.202(6)." §
766.203(2). A medical expert is "a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s.
766.102." §
766.202(6)....
...date of the occurrence that is the basis for the action" to the "active clinical practice of, or consulting with respect to, the same or similar health profession as the health care provider against whom or on whose behalf the testimony is offered." § 766.102(5)(c)....
...rs immediately preceding the date of the" alleged negligence either to the "active clinical practice of, or consulting with respect to, the same or similar health profession as the health care provider against whom . . . the testimony is offered[.]" § 766.102(5)(c), Fla....
...t. In the latter case, the claimant is simply being given an opportunity to provide clarifying information on historical facts. [5] For example, if the parties dispute whether a claimant's expert was a "licensed health care provider," as required by section 766.102(5), it is difficult to see how that dispute could be resolved absent fact-finding at an evidentiary hearing....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 11292, 1991 WL 232229
...argumentative and confusing. 2 Since our resolution of this issue is dis-positive, we do not need to reach Villar’s remaining point raised on appeal. Reversed and remanded for a new trial. . The requested jury instruction is derived, in part, from Section 766.102(4), Florida Statutes (1989), which is a codification of the res ipsa loquitur doctrine....
CopyPublished | Court of Appeals for the Eleventh Circuit
...2007) (finding no clear error in determination that ambulatory
care clinic was not required under applicable standard of care to stock Mannitol,
since evidence suggested that “Mannitol was not a medication normally
administered outside of a hospital setting”); cf. Fla. Stat. Ann. § 766.102 (2013)
(defining standard of care in medical malpractice action “in light of all relevant
surrounding circumstances”)....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 11458, 1995 WL 637539
...ntiff and leave her unattended on the x-ray table. The jury returned a verdict for defendant, and plaintiff appeals, arguing that the court erred in not giving a res ipsa loquitur instruction. We begin our analysis with a statute cited by defendant, section 766.102(4), Florida Statutes (1989), which provides: The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an in...
CopyPublished | Supreme Court of Florida
...at 1235 (“We have for
consideration the regular-cycle report of The Florida Bar’s Code and Rules of
Evidence Committee (Committee), concerning legislative changes to the Florida
- 22 -
Evidence Code and to section 766.102, Florida Statutes (2012).” (emphasis added)
(footnote omitted))....
...The concurring opinion believes we can
13. See Amends. to Fla. Evid. Code,
210 So. 3d at 1235 (“We have for
consideration the regular-cycle report of The Florida Bar’s Code and Rules of
Evidence Committee (Committee), concerning legislative changes to the Florida
Evidence Code and to section
766.102, Florida Statutes (2012).” (footnote
omitted)); In re Amends....
...2014) (“We
have for consideration the regular-cycle report filed by the Florida Bar Code and
Rules of Evidence Committee (Committee) concerning recent legislative changes
to the Florida Evidence Code (Code), see ch. 2011–183, § 1, Laws of Fla.;
ch. 2012–152, § 1, Laws of Fla.; and to section 766.102(12) of the Florida Statutes,
see ch....
CopyPublished | Florida 6th District Court of Appeal
...§
766.203(2).
The Legislature defines “medical expert” as “a person duly and regularly
engaged in the practice of his or her profession who holds a health care professional
degree from a university or college and who meets the requirements of an expert
witness as set forth in s.
766.102.” §
766.202(6), Fla. Stat. (2021). Section
766.102(5) outlines several qualifications an expert witness must have before he can
testify against a specialist about the “prevailing professional standard of care.” §
766.102(5)(a), Fla....
..., and she could not amend her
statutory presuit compliance.
2
expert witness to “[s]pecialize in the same specialty as the health care provider
against whom or on whose behalf the testimony is offered.” § 766.102(5)(a)1., Fla.
Stat....
...not procured someone from his “same specialty” to support her claims. The trial
court conducted an evidentiary hearing. Pradaxay argued that gynecological
oncology was a sub-specialty of gynecology, and because Dr. Gubernick had the
same specialty of gynecology, she complied with section 766.102(5)(a)1. She
highlighted section 766.102(5)’s failure to use “sub-specialty” as support for her
position....
...Typically, the best evidence of
what a contested term meant when enacted comes from a dictionary published close
to that time. Id. at 599.
5
The Legislature first enacted the “same specialty” requirement in 2013. See
§ 766.102(5), Fla. Stat. (2013). At the time of section 766.102(5)’s enactment,
“specialty” was commonly understood to mean “[a] branch of medicine or surgery,
such as cardiology or neurosurgery, in which a physician specializes; the field or
practice of a specialist.” Specialty, American Heritage Dictionary (2011 ed.)....
...subdivided part.” Sub-, American Heritage Dictionary (2011 ed.); Subdivision,
American Heritage Dictionary (2011 ed.). A “sub-specialty” is therefore a more
limited form of a “specialty,” and the terms are readily distinguishable.
Contextually, section 766.102(5)’s reference to “the same specialty” is part of
a set of qualifications necessary before an expert witness can testify about the
prevailing professional standard of care in medical malpractice actions....
CopyPublished | Florida 4th District Court of Appeal | 2000 Fla. App. LEXIS 5779, 2000 WL 628281
...ialty involved in this case is cytopathology. Therefore, we conclude that the trial court did not abuse its discretion in striking the plaintiffs expert, as he did not meet the definition of a “similar health care provider” within the meaning of section 766.102(2)(a), (b), or (c), Florida Statutes (1999)....
CopyPublished | District Court, N.D. Florida | 2007 U.S. Dist. LEXIS 34967, 2007 WL 1428720
...or a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." Fla. Stat. § 766.102....
CopyPublished | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 4183, 2010 WL 1222925
...professional negligence if he or she fails to obtain informed consent under circumstances requiring consent. See Fla. Std. Jury Instr. (Civil) 4.2(b). The standards of care applicable in most medical negligence cases are now stated in a statute. See § 766.102....
CopyPublished | Florida 3rd District Court of Appeal
...Subsection (2) requires
corroboration of reasonable grounds to support a claim “from a medical
expert as defined in s.
766.202(6).” §
766.203(2), Fla. Stat. Section
766.202(6), Florida Statutes (2022), in turn, defines such an expert as one
who qualifies under section
766.102, Florida Statutes (2022). Section
766.102(5) requires an expert to specialize in the same specialty as the
6
healthcare provider against whom the testimony is being offered. Section
766.102(7) further provides the requirements for expert witnesses testifying
on the standard of care as to administrative and other nonclinical issues in
actions against hospitals or other medical facilities.
By their plain language, the presuit statutes require corroboration of all
medical negligence claims by a qualified expert. See §§
766.102(5), 202(6),
203(2), Fla....
...to evaluate the merits of the claim”) (quotation marks and
citations omitted). To conclude otherwise would allow every plaintiff to
automatically transform any individual medical malpractice claim against a
physician with credentials or privileges into an administrative claim without
complying with the safeguards of section 766.102(7)....
CopyPublished | Florida 2nd District Court of Appeal
...not dispute that Barber's bilateral hip fractures were completely
unrelated to his medical treatment for his attempted overdose.
Consequently, we need not further discuss this first criterion.
4 In its order on summary judgment, the trial court quotes section
766.102(3)(b), Florida Statues, without explanation or analysis of how it
pertains to this case....
CopyPublished | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 8934, 2010 WL 2472489
...apter 766. REVERSED and REMANDED for further proceedings. KAHN, ROWE, and MARSTILLER, JJ., concur. NOTES [1] Section 768.50(2)(b) entitled "Collateral sources of indemnity," was repealed except to the extent that it is incorporated by reference into section
766.102(1), Florida Statutes (1991). Weinstock v. Groth,
629 So.2d 835, 836 n. 1 837 (Fla. 1993). In 2003, section
766.102(1) was updated to reference the newly-added definition of "health care provider" in section
766.202(4)....
CopyPublished | Supreme Court of Florida
...prevail, (claimant) must show by the greater weight of the evidence that his or
her injury was not within the necessary or reasonably foreseeable results of
the treatment or procedure.]
NOTES ON USE FOR 402.4a
1. See F.S. 766.102. Instruction 402.4a is derived from F.S. 766.102(1)
and is intended to embody the statutory definition of “prevailing professional
standard of care” without using that expression itself, which is potentially
confusing.
2. The second bracketed paragraph is derived from F.S. 766.102(2)(a)
and should be given only in cases involving a claim of negligence in affirmative
medical intervention.
b....
...of foreign body) in (patient’s) body establishes negligence unless (defendant(s))
prove(s) by the greater weight of the evidence that [he] [she] [it] was not
negligent.
NOTES ON USE FOR 402.4c
1. This instruction is derived from F.S. 766.102(3)....
CopyPublished | Supreme Court of Florida
...Accordingly, in a concurrent opinion, we amend Florida
Rule of Appellate Procedure 9.130(a)(3) to provide for interlocutory
review of nonfinal orders that deny a motion to dismiss on the basis
of the qualifications of a corroborating witness under subsections
766.102(5)-(9), Florida Statutes....
...(2016) (emphasis added). Section
766.202(6) defines a medical expert as “a person duly and regularly
engaged in the practice of his or her profession . . . and who meets
-4-
the requirements of an expert witness as set forth in s.
766.102.”
§
766.202(6), Fla. Stat. (2016).
Section
766.102, in turn, provides that “[a] person may not
give expert testimony concerning the prevailing professional
standard of care unless the person is a health care provider who
holds an active and valid license and conducts a complete review of
the pertinent medical records and meets [certain] criteria . . . .”
§
766.102(5), Fla. Stat. (2016). These certain criteria depend on the
type of health care provider “against whom . . . the testimony is
offered.” Id. §
766.102(5)(a).
If the provider accused of malpractice is a specialist like
Dr....
...research program in the same specialty; or
c. A clinical research program that is affiliated with an
accredited health professional school or accredited
-5-
residency or clinical research program in the same
specialty.
§ 766.102(5)(a), Fla....
...A clinical research program that is affiliated with an
accredited medical school or teaching hospital and that is
in the same or similar health profession as the health
care provider against whom or on whose behalf the
testimony is offered.
§ 766.102(5)(c), Fla....
... including “nurse practitioners,” if the physician is licensed, qualifies
as an expert under subsection (5), and, “by reason of active clinical
practice or instruction of students, has knowledge of the applicable
standard of care for . . . nurse practitioners . . . .” § 766.102(6), Fla.
Stat....
...en banc, and certification of a question of great public importance.
5. Subsection (14) had stated that “[t]his section does not
limit the power of the trial court to disqualify or qualify an expert
witness on grounds other than the qualifications in this section.”
§ 766.102(14), Fla....
...2013-108, § 2, Laws of Fla.
We do not agree. The amendments limited—but did not
erase—trial court discretion in assessing the qualifications of
proposed expert witnesses. By deleting subsection (14)—which had
provided that nothing in section 766.102 “limit[ed] the power of the
trial court to disqualify or qualify an expert witness on grounds
other than the qualifications in this section”—the Legislature
eliminated an explicit and substantial basis for trial court
discretion....
...3d at 1261 (“The trial court’s ruling in this case,
which effectively resurrects the prior statutory language . . .
constitutes a clear departure from the essential requirements of the
law . . . .”); Riggenbach,
267 So. 3d at 554 n.1 (discussing the “effect
of the [2013] amendment[s]”).
9. Section
766.102(5)(a) is no longer at issue in this case
because Carmody dropped Dr....
...specialist must specialize in the “same”—as opposed to “same or
similar”—specialty, the Legislature eliminated language that
implicitly empowered the courts to exercise discretion in a
significant subset of medical malpractice actions.
Yet section 766.102 still calls on the trial courts to make some
discretionary decisions....
...profession” as the defendant; (2) “[t]he instruction of students . . . in
the same or similar health profession” as the defendant; or (3) “[a]
clinical research program . . . in the same or similar health
profession” as the defendant. § 766.102(5)(c)1.-3., Fla....
...Therefore today, on our own motion, we have
also amended Florida Rule of Appellate Procedure 9.130(a)(3) to
provide for interlocutory review of nonfinal orders that deny a
- 20 -
motion to dismiss on the basis of the qualifications of a
corroborating witness under section 766.102(5)-(9), Florida
Statutes....
CopyPublished | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 10359, 2016 WL 3611022
...Section
766.202(6) defines “medical expert” as “a person duly
and regularly engaged in the practice of his or her profession who holds a health
care professional degree from a university or college and who meets the
requirements of an expert witness as set forth in s.
766.102.” Section
766.102, in
turn, sets forth the qualifications required of an expert witness providing the
standard of care for a healthcare provider, whether a specialist or a general
practitioner.
A party’s failure to provide a corroborating a...
...Here, substantial credible evidence supported the trial court’s
determination that a reasonable investigation was not performed by the plaintiff’s
counsel, not only because of Appellant’s failure to satisfy the statutory
requirements set out in Section 766.102, but also because the attorney persisted in
the use of Dr....
CopyPublished | Florida 4th District Court of Appeal
...fically finding:
that it has not been presented with competent evidence from
a qualified expert who is capable of rendering an opinion on
the standard of care for [the cardiac surgeon]. . . , pursuant
to Florida Statutes 766.102(5)(a)(1) and (2) which requires
that in order to render standard of care opinions against a
“specialist” ....
...law and that his
reliance on Haas v. Zaccaria,
659 So. 2d 1130 (Fla. 4th DCA 1995), is
misplaced. The plaintiff suggests the trial court correctly found the doctor
was required to provide expert testimony on the cardiac surgeon’s
culpability under section
766.102(5), Florida Statutes (2013).
The parties agree the standard of review applicable to the partial
summary judgment order is de novo....
...2018).
“[I]n a medical malpractice action, the burden is on the plaintiff to
establish that the care provided . . . was not that of a reasonably prudent
physician.” Saunders v. Dickens,
151 So. 3d 434, 441 (Fla. 2014)
(emphasis omitted); see also §
766.102(1), Fla. Stat. (2013).
A defending medical provider can negate a plaintiff’s claim for medical
malpractice by proving his/her care conformed to that of a “reasonably
prudent” physician. §
766.102(1), Fla....
... The general standard of care for a professional health-care provider is
“that level of care, skill, and treatment which, in light of all relevant
surrounding circumstances, is recognized as acceptable and appropriate
by reasonably prudent similar health care providers.” §
766.102(1), Fla.
Stat. (2013). Only experts are allowed to testify regarding a medical
provider’s applicable standard of care. §
766.102(5), Fla. Stat. (2013).
Because the plaintiff bears the burden of proof in a malpractice case, it
follows that plaintiffs are required to advance expert testimony under
section
766.102, defendants are not. Indeed, “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.” Carrasquillo v. Metzler,
376 So. 3d 736, 741 (Fla. 4th
DCA 2024). Any such mandate would “improperly shift the burden of
proof” in contravention of section
766.102 (a)’s plain language allocating
that burden to the plaintiff....
...There,
the plaintiff argued the defendant was “required to present independent
expert testimony on the standard of care issue” to avoid an adverse ruling
on the plaintiff’s renewed motion for directed verdict. Id. But we “reject[ed]
[the] [p]laintiff’s reading of section 766.102(5), Florida Statutes.” Id.
We held the defendant was not required to produce an expert to defend
against the plaintiff’s negligence claim....
CopyPublished | Florida 1st District Court of Appeal
...medical care or services.” §
766.106(1)(a), Fla. Stat. (2018). To
8
determine if a claim asserts medical malpractice, a court will “look
to whether the plaintiff must rely upon the medical negligence
standard of care as set forth in section
766.102(1).” National Deaf
Acad., LLC v....
CopyPublished | Florida 3rd District Court of Appeal | 2000 Fla. App. LEXIS 8758, 2000 WL 954935
...Virginia Fuentes appeals an adverse summary judgment in her medical malpractice action against Richard Spirer, M.D. The motion was granted after the trial court struck the affidavit of William Fallon, M.D., Fuentes’ standard of care expert, because Dr. Fallon was not a similar health care provider pursuant to section 766.102, Florida Statutes (1995)....
...Fuentes to a better equipped trauma center, it would have been more *1082 probable than not that Mr. Fuentes would have survived his injuries. The trial court granted Dr. Spirer’s motion for summary judgment, finding that Fuentes failed to produce admissible expert testimony, based on section 766.102(6)(a), and, thus, there was no issue of material fact....
...Fallon did not qualify as a proper expert witness under the statute because he was not an emergency room physician. The statute, however, does not require that the standard of care expert against an emergency room physician also be an emergency room physician. Section 766.102(6)(a) states in pertinent part: In any action for damages involving a claim of negligence against a physician ......
...cians, osteopathic physicians, podiatrists, and chiropractors who have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department. (Emphasis supplied). Section 766.102(6)(b) defines “emergency medical services” as “those medical services required for the immediate diagnosis and treatment of medical conditions which, if not immediately diagnosed and treated, could lead to serious physical or mental disability or death.” Dr....
...In Miranda , the expert served as a consultant to an emergency room twice a month, and had, during every week for the previous five years, been in the emergency room as a consulting orthopedic physician. Miranda presents an example of exactly the type of expert testimony which section 766.102 is designed to prevent: an ill-informed “opinion” that the care given by an emergency room physician fell below the standard of care which could have been provided by a specialist in the particular field acting under nonemergency conditions. For the above stated reasons, we find that Dr. Fallon’s qualifications satisfy the statutory requirements of section 766.102(6)(a), and that, by presenting Dr....
CopyPublished | District Court of Appeal of Florida
that health care provider is a specialist. Id. §
766.102(5)(a)1. Alternatively, if the health care provider
CopyPublished | District Court, M.D. Florida | 2006 U.S. Dist. LEXIS 3704, 2006 WL 229514
...e breach proximately caused the injury alleged. Gooding v. University Hospital Building, Inc.,
445 So.2d 1015, 1018, 1020 (Fla.1984); Torres v. Sullivan,
903 So.2d 1064, 1067 (Fla. 2d DCA 2005); Moisan v. Kriz,
531 So.2d 398, 399 (Fla. 2d DCA 1988). Section
766.102(1), Florida Statutes (2002), codifies the prevailing professional standards of care....
CopyPublished | Florida 4th District Court of Appeal
...1st DCA 2006) (“By granting the extreme sanction
of dismissal of the cause after the jury had returned a verdict for appellant,
the court essentially assumed the role of a seventh juror by making a
credibility determination contrary to that reached by the jury . . . .”).
Plaintiff nonetheless argues that pursuant to section 766.102, Florida
Statutes (2022), in order to avoid entry of JNOV against them, the
Defendant Doctors were required to present independent expert testimony
on the standard of care issue....
...Specifically, Plaintiff argues the Defendant
Doctors were required to present expert testimony to oppose Dr. Gold’s
testimony that the failure to timely refer Mrs. Metzler for a chest CT scan
fell below the prevailing professional standard of care. In support of his
argument, Plaintiff points to the language in section 766.102(5)(a), Florida
Statutes (2022), stating: “If the health care provider against whom or on
whose behalf the testimony is offered is a specialist, the expert witness
must . . . .” (emphasis added). Based on the italicized language, Plaintiff
maintains the statute “requires expert testimony to support or oppose an
allegation of the breach of standard of care.”
We reject Plaintiff’s reading of section 766.102(5), Florida Statutes.
Section 766.102(5) governs the qualifications an expert witness needs to
testify on the standard of care. Although those qualifications certainly
apply to experts testifying on behalf of a defendant health care provider,
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....
...iding
that “the claimant shall have the burden of proving by the greater weight
of evidence that the alleged actions of the health care provider represented
a breach of the prevailing professional standard of care for that health care
provider.” § 766.102(1), Fla....
CopyPublished | Supreme Court of Florida
...assessment of the patient’s medical history,” which would mean the
recommendation would be made “in a manner consistent with this section.” Of
course, such a recommendation may fall outside “the prevailing professional
standard of care for that health care provider.” § 766.102(1), Fla....
CopyPublished | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 32, 2017 WL 372091, 2017 Fla. LEXIS 193
PARIENTE, J. The issue presented involves the interpretation of section 766.102(3)(b), Florida Statutes (2011) (the foreign-body presumption of negligence)—specifically whether, in a medical malpractice case involving a foreign body left inside a patient’s body, the burden of proof shifts to the defendant to prove that no medical negligence occurred. The foreign-body presumption of negligence set forth in section 766.102(3)(b) provides: [T]he discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, *1203 shall be prima facie evidence of negligence on the part of the health care provider....
...(Emphasis added.) In Dockswell v. Bethesda Memorial Hospital, Inc.,
177 So.3d 270 (Fla. 4th DCA 2015), the Fourth District determined that when direct evidence of negligence exists, the plaintiff is not entitled to the statutory presumption arising from section
766.102(3)(b)....
...Miller,
756 So.2d 133 (Fla. 3d DCA 2000). See art. V, § 3(b)(3), Fla. Const. After analyzing the statute and relevant case law, we conclude, consistent with the analysis of Judge Conner’s dissent in Dockswell, that the foreign-body presumption of negligence set forth in section
766.102(3)(b) is mandatory when a foreign body is found inside the patient’s body, regardless of whether direct evidence exists of negligence or who the responsible party is for the foreign body’s presence....
...The trial court ultimately denied the Dockswells’ request for Instruction 402.4c, reasoning that the Dockswells’ ability to identify Nurse Porges as the person who removed the drainage tube rendered the Instruction inapplicable. Further, the trial court reasoned that “the word ‘discovery’ in section 766.102[ (3)(b) ] (and thus the instruction) suggests a situation where a patient is uncertain as to where responsibility for negligence lies.” Id....
...ption of negligence and shifted the burden to Bethesda Memorial Hospital to disprove liability. Dockswell,
177 So.3d at 274 . The Fourth District rejected the Dockswells’ argument, agreeing with the trial court that the foreign-body presumption in section
766.102(3)(b) and, thus, Instruction 402.4c were inapplicable....
...The Dockswells petitioned for review, and this Court accepted jurisdiction based on express and direct conflict between the Fourth District’s decision in this case and the Third District’s decision in Kenyon. ANALYSIS The issue in this case involves the interpretation of the foreign-body presumption, as codified in section 766.102(3)(b), specifically whether, in a medical malpractice case involving a foreign body left in a patient, the burden of proof shifts to the defendant to prove that no medical negligence occurred....
...1 We conclude that, unlike the common law doctrine of res ipsa where direct evidence of negligence may defeat its application, the only prerequisite to applying the foreign-body presumption and Instruction 402.4c is the “discovery of the presence of a foreign bod/’ in the patient’s body. § 766.102(3)(b), Fla. Stat. We begin with an explanation of section 766.102(3)(b) and part of the medical malpractice statutory scheme and then distinguish the statutory foreign-body exception from the common law doctrine of res ipsa loquitur. Turning to this case, we conclude that the presence of the drainage tube fragment in Mr. Dockswell’s body following discharge from Bethesda Memorial Hospital entitled the Dockswells to the benefit of the foreign-body presumption in section 766.102(3)(b) and Instruction 402.4c. We also conclude that the failure to give Instruction 402.4c as well as the trial court’s giving of a nonstandard instruction cannot be considered harmless error. II. Section 766.102(3)(b) (the Foreign-Body Presumption of Negligence) Over the years, the Legislature has restricted plaintiffs’ ability to bring medical malpractice claims, including through the addition of a presuit process, with the requirement tha...
...imilar medical area, 2 The foreign-body presump *1206 tion of negligence, however, has survived throughout the legislative amendments restricting the ability of medical malpractice plaintiffs to bring claims. Because determining the applicability of section 766.102(3)(b) involves an issue of statutory interpretation, our review is de novo....
...l court and the Fourth District— that a plaintiff is entitled to the foreign-body presumption of negligence only in the absence of direct evidence of negligence— is consistent with the actual language of the statute. We turn first to the text of section 766.102, Florida Statutes, which provides both for the general proposition that in medical negligence cases the plaintiff bears the burden of proof of medical negligence and specifies in detail what the plaintiff must prove: (1) In any action...
...7 dure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider. § 766.102, Fla....
...nce of negligence on the part of the health care provider. Id. (emphasis added). 3 Subsection (3)(b) states that foreign-body cases are a class of medical malpractice cases in which the Legislature has given a singular benefit to plaintiffs. See id. § 766.102(3)(b) (2016). Under the plain language of the statute, specifically the first sentence of section 766.102(3)(b), the burden in ordinary medical malpractice suits lies with the plaintiff to prove that the defendant was negligent, or breached “the prevailing professional standard of care for that health care provider.” Id. § 766.102(1); accord id. § 766.102 (3)(b)....
...However, the third sentence of subsection (3)(b) provides that the burden shifts upon the “discovery” of a foreign body, which constitutes “prima facie evidence of negligence on the part of the health care provider.” Id. If there is any issue in interpreting the Legislature’s intent for the third sentence of section 766.102(3)(b), it turns on the use of the word “discovery,” which is what triggers the application of the foreign-body presumption and the accompanying Instruction 402.4c....
...To “discover” means “to obtain sight or knowledge of for the first time.” Id. According to Webster’s, a synonym for “discover” is “unearth,” which “implies bringing to light something forgotten or hidden.” Id. [[Image here]] *1208 I contend the last sentence of section 766.102(3)(b) is a recognition by the legislature that the first sentence of the section places too onerous a burden on the claimant to show a breach of the standard of care, when the universe of explanations for why a foreign body remained includes doctor error, nurse error, and product defect....
...on of negligence has been established. We next address the effect, if any, of other evidence or knowledge of the identity of the specific actor responsible for leaving the foreign body may have on the applicability of the foreign-body presumption in section 766.102(3)(b)....
...Rather, as Judge Conner’s dissent explained, “If a set of facts entitles one to a legal determination that prima facie evidence of negligence is established, additional affirmative evidence of negligence does not erase the prima facie determination.” Id. at 277 . Further: The first sentence of section 766.102(3)(b) codifies the principle that a medical injury does not create any inference or presumption of negligence by a health care provider. ... The last sentence of section 766.102(3)(b) provides an exception to the general rule established by the first sentence....
...han his or her negligence. This interpretation of the statute is consistent with the Fourth District’s earlier decision in Castillo v. Visual Health & Surgical Ctr., Inc.,
972 So.2d 254 (Fla. 4th DCA 2008). In Castillo, the trial court applied section
766.102(3) and denied a directed verdict for the patient. The Fourth District affirmed, stating: Section
766.102(3) provides that “the discovery of the presence of a foreign body, *1209 such as a sponge ......
...or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.” [[Image here]] The parties have not cited, nor has our own research revealed any Florida case law interpreting section 766.102(3), Florida Statutes....
...that the burden, when shifted to the defendants], cannot be met by pure speculation and conjecture. ... The jury is free to accept or reject any of this testimony. The trial court did not err in making it a jury question as to whether the defense met their burden in overcoming the presumption created by section 766.102(3), Florida Statutes. [[Image here]] [W]e affirm as the trial court did not err in making it a jury question as to whether the defense met their burden in overcoming the presumption created by section 766.102(3), Florida Statutes....
...Rather than a tool to help the jury determine the appropriate outcome in the case only when needed, the text of the statute indicates that the foreign-body presumption shifts the burden to health care providers to prove that they were not negligent in treating the patient. Likewise, Instruction 402.4c, derived from section 766.102(3) and adopted by this Court in 2010, states: [Negligence is the failure to use reasonable care.] The presence of (name of foreign body) in (patient’s) body establishes negligence unless (defendant(s)) prove(s) by the greater weight of the evidence that [he] [she] [it] was not negligent....
...ical negligence, based upon the presence of a foreign object in a patient’s body.” Std. Jury Instrs. in Civil Cases-Report No. 09-01,
35 So.3d at 670 . Further, the Notes on Use for Instruction 402.4c state: 1. This instruction is derived from F.S.
766.102(3)....
...inition. See Kenyon v. Miller,
756 So.2d 133 (Fla. 3d DCA 2000). Id. at 705. Thus, under the plain language of the statute and the Notes on Use of Instruction 402.4c, the existence of a foreign body invokes the statutory presumption of negligence in section
766.102(3)(b), entitling the plaintiff to the benefit of Instruction 402.4c, regardless of the evidence available to either party....
...mon law doctrine of res ipsa loquitur with the statutory foreign-body presumption, we now turn to an explanation of the distinction between the foreign-body presumption and *1210 the common law doctrine of res ipsa loqui-tur. II. Differences Between Section
766.102(3)(b) and Common Law Res Ipsa Loquitur We conclude that the Fourth District made a foundational error when it stated that the statutory foreign-body presumption “is a codification of the doctrine of res ipsa loquitur in the medical negligence context.” Dockswell,
177 So.3d at 272 ....
...We now turn to foreign-body law, a specific subset of medical malpractice cases, which concern those cases where a foreign body is unintentionally left inside the body of a patient. Judge Conner discussed the origins of the foreign-body presumption in his dissent in Dockswell: [T]he last sentence of section 766.102(3)(b) codifies and expands “the Zeagler Rule” espoused in our case law during the 1930’s in Smith v....
...Therefore, different from common law res ipsa loquitur, the statutory foreign-body presumption is one that provides plaintiffs with a presumption of negligence even if direct evidence of negligence exists. Thus, we conclude that the comparison between foreign-body law—specifically section 766.102(3)(b) and Instruction 402.4c—and res ipsa begins and ends with their effect: imposing a prima facie case of negligence and shifting the burden to the defendant....
...h that the Dockswells knew when the drainage tube broke, how it broke, or who was responsible for it breaking. Contrary to the Fourth District’s and trial court’s conclusions that sufficient direct evidence existed to negate the applicability of section 766.102(3)(b) and Instruction 402,4c, the Dockswells’ alternative theories of how the drainage tube fragment remained in Mr....
...Notwithstanding whether the trial court or Fourth District were correct to conclude that direct evidence of negligence existed, it is clear that the drainage tube fragment was not intended to remain in Mr. Dockswell and was, therefore, a foreign body within the meaning of section 766.102(3)(b)....
...e applicable to the Dockswells’ case as a mandatory presumption, unavoidable by evidence. Thus, the jury should have been instructed to determine whether Bethesda Memorial Hospital sufficiently refuted the presumption of negligence, as provided by section 766.102(3)(b)....
...Bethesda Memorial Hospital cannot establish that there is no reasonable possibility that this error was harmless. Accordingly, for the reasons stated, we conclude that the Dockswells are entitled to a new trial. CONCLUSION For the reasons explained above, the foreign-body presumption of negligence in section 766.102(3)(b), Florida Statutes, as set forth in Florida Standard Jury Instruction 402.4c, establishing a presumption of negligence and shifting the burden to the defendant when a foreign body is discovered inside a patient, was applicable to the Dockswells when they proved that a drainage tube fragment improperly remained inside Mr. Dockswell Further, the nonstandard jury instruction given at trial, omitting the second portion of section 766.102(3)(b), was misleading and, thus, separately constituted reversible error....
...Accordingly, we approve of the Third District’s decision in Kenyon v. Miller,
756 So.2d 133 (Fla. 3d DCA 2000), quash the Fourth District’s decision in Dockswell, and remand with instructions that a new trial be ordered in which the Dockswells receive the benefit of the foreign-body presumption of negligence in section
766.102(3)(b) as set forth in Florida Standard Jury Instruction 402.4c. It is so ordered. LABARGA, C.J., and LEWIS, and QUINCE, JJ., and PERRY, Senior Justice, concur. POLSTON, J., dissents with an opinion, in which CANADY, J., concurs. . We use "presumption” throughout to characterize section
766.102(3)(b), Florida Statutes, even though the statutory language provides for "prima facie evidence” because, as we explained in State v....
...the claimant.” §
766.104(1), Fla. Stat. (2016). It also provides that "good faith” may be shown if the claimant or his counsel has received a written opinion of an expert "that there appears to be evidence of medical negligence.” Id. (citing §
766.102, Fla....
...In 2013, the Florida Legislature passed the Florida Medical Malpractice Act, ch. 2013-108, Laws of Fla., which placed further restrictions on plaintiffs’ ability to prove their cases by revising qualifications to give expert testimony on the prevailing standard of care. . This language has not changed since 2011. See § 766.102(3)(b), Fla. Stat. (2011). Also, before 2003, the foreign-body statutory presumption was codified at section 766.102(4), Florida Statutes. See, e.g., § 766.102(4), Fla....
CopyPublished | Florida 4th District Court of Appeal | 1993 WL 517231
...er to perform a biopsy, the trial court excluded Dr. Singer's testimony on standard of care. In a medical malpractice action, the requirements for an expert to testify in judgment of another health care provider's actions or inactions are defined by section 766.102, Florida Statutes (1991)....
...nt, added by the 1985 amendments to the medical malpractice statute, is that the individual's training, experience or knowledge be a result of "active involvement in the practice or teaching of medicine" within the five years preceding the incident. § 766.102(2)(c)(2), Fla....
...When referral is made from one specialty to the other, the question is not whether the referring doctor makes the decision on performing the procedure, but whether the referring doctor possesses the requisite training, experience and knowledge in a "given field of *609 medicine." § 766.102(2)(c)(2), Fla....
...opractor for failure to timely refer a patient with neck problems to a neurologist. The court noted that in any event the neurosurgeon could testify as a "not similar health care provider" in a "related field of medicine" pursuant to Florida Statute 766.102(2)(c)(2), since the neurosurgeon ultimately treats significant neck problems....
CopyPublished | Florida 5th District Court of Appeal
...hat the negligence resulted in injury to the claimant." (citing §
766.203(2)(a)-(b), Fla. Stat. (2016) ) ). 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....
...This statute defines a medical expert as: [A] person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102. 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....
...Any reference in Long of there being a less stringent standard for the qualification of experts in the presuit screening process for medical malpractice suits was dicta. Appellant also briefly raises for the first time on appeal the constitutionality of the "same specialty" requirements of section 766.102(5)(a)....
...Essex was initially the appellant in this case. She passed away shortly before oral argument, and the personal representative of her estate was substituted as a party. The Florida Supreme Court has recently declined to adopt the "same specialty" amendment to section
766.102(5)(a) "to the extent it is procedural." See In re Amendments to the Florida Evidence Code ,
210 So.3d 1231 , 1239 (Fla....
...tent that it is procedural does "not vitiate or overturn the statute," and "the statute remains the law in Florida." Clare ,
220 So.3d at 1262 (quoting Bivins v. Rogers ,
207 F.Supp.3d 1321 , 1326 (S.D. Fla. 2016) ). Because the constitutionality of section
766.102(5)(a) is not properly before us, the statute remains in effect....
CopyPublished | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 1514, 2011 WL 439467
...of intent to initiate litigation for medical negligence.” §
766.106(2)(a). “[T]he proper test for determining whether a defendant is entitled to notice under section
766.106(2) is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1).” Weinstock v. Groth,
629 So.2d 885, 838 (Fla.1993). The standard for recovery in a medical negligence case is set forth in section
766.102(1): In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in - s....
...undisputed that HCA is not a health care provider. In addition, it has not been alleged that the Pharmacists or HCA are vicariously liable in this case for the acts of a health care provider. Therefore, this argument fails. The language of sections
766.102(1) and
766.202(4) is unambiguous, and our conclusion regarding the Pharmacists is consistent with our obligation to narrowly construe statutes that restrict access to the courts....
...See Weinstock,
629 So.2d at 838 . Here, the Estate alleged that the Hospital breached a standard of care in failing to properly maintain records, but the Estate did not allege that that breach caused the “death or personal injury of any person.” §
766.102(1)....
...McCullough,
590 So.2d at 441 (noting *144 that a nonhealth care provider may be entitled to presuit notice because it is vicariously liable for employees or agents that are health care providers). V. Conclusion The Estate carefully avoided invoking the presuit notice requirements of section
766.102 when fashioning its complaint against petitioners....
CopyPublished | Florida 4th District Court of Appeal
negligence standard of care as set forth in section
766.102(1).” Integrated Health Care Servs., Inc
CopyPublished | Florida 4th District Court of Appeal
...nce
of (name of foreign body) in (patient’s) body establishes negligence
unless (defendant(s)) prove(s) by the greater weight of the
evidence that [he] [she] [it] was not negligent.
(Emphasis in original). The instruction is derived from section 766.102(3),
Florida Statutes, which provides that a plaintiff generally maintains the
burden of proving a breach of the professional standard of care, but that
“the discovery of the presence of a foreign body . . . commonly used in
surgical, examination, or diagnostic procedures, shall be prima facie
evidence of negligence . . . .” See id. at n.1; § 766.102(3)(b), Fla....
...Neither the
Dockswells nor the hospital submitted the instructions as requested by
the trial court.
The trial court ultimately denied the requested instruction, explaining
that the Dockswells had the ability to present direct evidence of the nurse’s
negligence, whereas the word “discovery” in section 766.102 (and thus the
instruction) suggests a situation where a patient is uncertain as to where
responsibility for negligence lies....
...in the case support the giving of the instruction, and (3) the instruction
was necessary to allow the jury to properly resolve the issues in the case.”
Florio v. Eng,
879 So. 2d 678, 680 (Fla. 4th DCA 2004) (citation omitted).
The foreign body instruction is derived from section
766.102(3), which
provides in pertinent part:
(b) The existence of a medical injury does not create any inference
or presumption of negligence against a health care provider, and the
claimant must maintain the burden of proving that...
...ain as a
part of her treatment, but had to be removed following infection. The
appellate court held that negligence cannot be inferred from the fact that
1In Borghese, the court was interpreting section 768.45(4), which was eventually
renumbered as section 766.102(4), then as 766.102(3)....
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 1897, 2011 WL 519896
...eated an athlete on the field, never practiced orthopedic surgery, and was not board certified, he was “similarly licensed” because both the doctor and the expert were medical doctors. Section
768.135 requires no more than that. This leads us to section
766.102, Florida Statutes (2003), which governs expert witness testimony in medical malpractice actions....
...or clinical research program in the same or similar specialty; or c. A clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same or similar specialty. § 766.102(5), Fla....
...Because of the specific holding in Bardo, however, we find it unpersuasive. In Bardo, the defendant was an emergency room physician. The expert was not. The trial court found the pulmonologist qualified as a similar health care pro *400 vider. Id. The Second District held that section 766.102(6)(a), Florida Statutes (1997), 2 which establishes the qualifications for an expert in the field of emergency-medical services, controlled over the more general requirements for an expert witness found in section 766.102(2)(c)2 (1997)....
...emergency department. While not an orthopedic surgeon, his qualifications satisfied the requirement that his “similar specialty” included “the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim ....”§
766.102(5)(a)(l), Fla. Stat. (2003). More recently, in Oken v. Williams,
23 So.3d 140 (Fla. 1st DCA 2009), the First District tackled the issue of whether an expert met the qualifications of section
766.102(5) for the purpose of filing an affidavit during the pre-suit screening process....
...It rejected the First District’s rigid adherence to “same specialty,” and reversed the dismissal of the plaintiffs complaint. Id. at 402-03 . The court remanded the case to the trial court to determine, in an evidentiary hearing, whether the emergency room physician’s affidavit was sufficient to comply with section 766.102(5). Id. at 403 . Our legislature has spent a considerable amount of time over the last few decades defining and redefining Florida’s Medical Malpractice Act. Section 766.102, which sets the standard for an expert witness’s qualifications, has also been the subject of amendments....
...mages. Affirmed. GROSS, C.J., and DAMOORGIAN, J., concur. . The plaintiff separately appealed the defense verdict for the other defendants; those defendants cross-appealed on other issues. All appeals were heard together at oral argument. . In 2003, section 766.102 was amended and the specific provision applicable to emergency room physicians changed from section 766.102(6)(a) to 766.102(9)(a). . This statute is the predecessor of section 766.102(5), Florida Statutes (2003)....
CopyPublished | Florida 2nd District Court of Appeal | 2013 WL 561464, 2013 Fla. App. LEXIS 2315
...The First District reversed, explaining: The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section
766.106, Florida Statutes, is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1), Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal
...He was the chief operating officer at Cedars Sinai Hospital in Los Angeles during the 1980s. He is currently a consultant to hospitals and spends about one-third of his time as an expert witness in cases involving hospital administration. The hospital argues that Shorr was not qualified to testify under section 766.102(7), Florida Statutes, which provides: ....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Jul 27, 2023
...health pro-
vider,” which in Florida requires “the level of care, skill, and treat-
ment which . . . is recognized as acceptable and appropriate by rea-
sonably prudent similar health care providers.” Fla. Stat. Ann. §
766.102(1).
But none of the defendant officers is a doctor or even a
nurse....
CopyPublished | Supreme Court of Florida
130(a)(3)(H) to reference subsection (12) of section
766.102, because subsection (12) also articulates the
CopyPublished | Florida 2nd District Court of Appeal
..."[P]roving a
medical malpractice claim requires establishing that the allegedly negligent act
'represented a breach of the prevailing professional standard of care,' as testified to by
-4-
a qualified medical expert." Townes,
242 So. 3d at 309 (quoting §
766.102(1), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2013 WL 4614754, 2013 Fla. App. LEXIS 13965
PER CURIAM. The appellant, Jerry Lucante, raises two issues on appeal. First, the appellant argues that its experts’ affidavits fulfilled the “similar specialty” presuit compliance requirement of section 766.102(5), Florida Statutes....
...Second, the appellant argues that the appellees waived any issue regarding presuit compliance because the appellees failed to specifically plead these issues. Because the issue regarding waiver is dispositive, this Court declines to address the meaning of the phrase “similar specialty” found in section 766.102(5)....
CopyPublished | Florida 5th District Court of Appeal | 2002 Fla. App. LEXIS 12081
..., against another cardiologist, and he had not been disqualified by any court from testifying as an expert in those fields. His opinion was rejected in one case, however, because it related to the standard of care of an emergency medicine physician. Section 766.102(6)(a) provides that in malpractice actions against emergency room physicians, the court shall admit expert medical testimony only from physicians who have had substantial professional experience within the preceding five years while a...
CopyPublished | Florida 1st District Court of Appeal
...re provider),
review denied,
666 So. 2d 901 (Fla. 1996). The core legal inquiry
here would involve a medical negligence question evaluating the
acceptability of Appellees’ medical treatment decisions under the
medical malpractice standard of care. §
766.102(1), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2004 Fla. App. LEXIS 11826
...her doctors. The duty that a typical doctor owes to a patient is governed by the professional negligence standard, which generally requires that the doctor provide that level of care that a similar and reasonably careful physician would provide. See § 766.102(1), Fla....
CopyPublished | District Court of Appeal of Florida
required to plead a medical malpractice claim. See §
766.102(1), Fla. Stat. Appellant included customary,
CopyPublished | United States Bankruptcy Court, M.D. Florida | 9 Fla. L. Weekly Fed. B 48, 1995 Bankr. LEXIS 918
...ient to establish a viable claim to the exception to discharge under § 523(a)(6). Neither is a conduct which otherwise would be tantamount to malpractice, which conduct fell below the prevailing professional standard in the community. See Fla.Stat. 766.102(1)....
CopyPublished | Florida 4th District Court of Appeal | 2001 WL 321249
...In that case, the second district held that although a nursing home is not a health care provider as defined under chapter 766, the notice provisions of the Malpractice Act apply to a negligence action against a nursing home if the professional medical negligence standard of care set forth in section 766.102 applied to the active tortfeasorthe agent or employee of the nursing home....
...Thereafter, the Florida Supreme Court, in an unrelated case, agreed with the McCullough court that the proper test for determining whether a defendant is entitled to notice under section
766.106(2) is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1)....
CopyPublished | Florida 1st District Court of Appeal | 2016 WL 1660554, 2016 Fla. App. LEXIS 6298
...rovide reasonable access to information during pre-suit investigation pursuant to section
766.205(2), Florida Statutes (2011), and that, based on this failure, the record did not support a finding that her medical expert was qualified under sections
766.102(5)(a)2., (6) and- (9), Florida Statutes (2011)....
...her such negligence re- *350 suited in injury to the claimant. §
766.203(2), Fla. Stat. A medical expert must corroborate such findings in. a verified written opinion. Id. The expert must meet the qualifications set forth in sections
766.202(6) and
766.102(5)....
...ismissal under sections
766.205(2) and
766.206(2), Florida Statutes. Because the court did not abuse its discretion in dismissing the medical malpractice claim, we affirm. LEWIS, J., concurs; SWANSON, J., dissents with opinion. ' . Subsection (5) of section
766.102 addresses the qualifications for an expert concerning the professional standard of care for physicians, osteopathic physicians, podiatric physicians, optometrists, dentists, chiropractic physicians, and pharmacists....
CopyPublished | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 6148, 2016 WL 1600606
...defines "medical expert" as "a
person duly and regularly engaged in the practice of his or her profession who holds a
health care professional degree from a university or college and who meets the
requirements of an expert witness as set forth in s. 766.102."8 While Nordelo may
was error to allow a chiropractor qualified to testify as an expert in chiropractic matters
to opine on the plaintiff’s need for future surgery....
...n and
existing organic brain damage, because the witness was not a medical doctor, the
witness was not qualified to opine as an expert on the future deterioration of the
plaintiff’s brain as a result of the accident. Id. at 82.
8
Section 766.102(5)(c)1., Florida Statutes (2011) provides:
(c) If the health care provider against whom or on whose
behalf the testimony is offered is a health care provider other
than a specialist or...
...6
qualify as a medical expert under this statute for purposes of the medical malpractice
presuit screening process, this is not a medical malpractice case. Furthermore, we
have previously recognized that "section 766.102(5) provides a less stringent standard
for qualification of experts in the medical malpractice screening process than might be
required of an expert to offer testimony at trial." Apostolico v....
CopyPublished | Supreme Court of Florida | 2016 WL 1592719
...prevail, (claimant) must show by the greater weight of the evidence that his or
her injury was not within the necessary or reasonably foreseeable results of
the treatment or procedure.]
NOTES ON USE FOR 402.4a
1. See F.S. 766.102. Instruction 402.4a is derived from F.S. 766.102(1)
and is intended to embody the statutory definition of “prevailing professional
standard of care” without using that expression itself, which is potentially
confusing.
2. The second bracketed paragraph is derived from F.S. 766.102(2)(a)
and should be given only in cases involving a claim of negligence in affirmative
medical intervention.
b....
...of foreign body) in (patient’s) body establishes negligence unless (defendant(s))
prove(s) by the greater weight of the evidence that [he] [she] [it] was not
negligent.
NOTES ON USE FOR 402.4c
1. This instruction is derived from F.S. 766.102(3)....
CopyPublished | Supreme Court of Florida
...providers], then, in order to prevail, (claimant) must show by the greater weight of the evidence that his or her injury was not within the necessary or reasonably foreseeable results of the treatment or procedure.] NOTES ON USE FOR 402.4a 1. See F.S. 766.102. Instruction 402.4a is derived from F.S. 766.102(1) and is intended to embody the statutory definition of “prevailing professional standard of care” without using that expression itself, which is potentially confusing....
...e of (name of foreign body) in (patient’s) body establishes negligence unless (defendant(s)) prove(s) by the greater weight of the evidence that [he] [she] [it] was not negligent. *1186 NOTES ON USE FOR 402.4c 1. This instruction is derived from F.S. 766.102(3)....
CopyPublished | Florida 3rd District Court of Appeal
...s
improper where the estate presented “expert testimony setting forth the
applicable standard of care, how it was breached, and how the breach was
the proximate cause of the decedent’s suicide.” This duty, it continued, is
based in part on section 766.102(1), Florida Statutes, providing “the
prevailing standard of care” for a physician in Florida. § 766.102(1), Fla....
...r. Chirillo owed
the decedent no duty at all.[] As we plainly stated in McCain,
there are several sources of duty. Although the inpatient duty
to prevent suicide does not apply here, there still existed a
statutory duty under section 766.102 to treat the decedent in
accordance with the standard of care....
