Florida Supreme Court Declines to Rehear Med Mal Case that Changed Rule on Experts

The Florida Supreme Court on Thursday declined to rehear a medical malpractice case that has made it easier for insurers and health care providers to challenge a plaintiff’s expert.

In University of Florida Board of Trustees vs. Laurie Carmody, the court in July changed the rules of appellate procedure, allowing mid-trial appeals on an expert witness’ qualifications, when a court denies a motion to dismiss. Carmody, a patient at the University of Florida’s Shands Teaching Hospital who said she was injured during spinal surgery in 2016, had asked the high court to rehear the case.

The justices all declined to reconsider. One, Justice Jorge Labarga, concurred, with a caveat:

“While I agree that rehearing on the merits is not warranted, I do adhere to my concurring-in-result, dissenting-in-part opinion, where I dissented to the majority’s unilateral decision to amend Florida Rule of Appellate Procedure 9.130,” Labarga noted.

The July rule change was seen as a win for medical malpractice insurers, hospitals and doctors.

The rule change was an outcome of Florida’s Medical Malpractice Act. The Florida Legislature in 2016 modified the statute to help limit some lawsuits and damages. It added a requirement that a plaintiff’s expert witness must be a physician in the same specialty, with at least three years of experience. A witness who is a general practitioner must have at least five years’ experience.

The law requires a notice of malpractice claim to be accompanied by a supporting affidavit from the expert. Carmody’s expert was experienced in internal medicine, cardiology and hospital admissions, but not necessarily in spinal surgery. The university filed a motion to dismiss the suit, arguing that the witness was not qualified to opine on the surgery. The trial court refused the motion and allowed the trial to proceed.

The university appealed, but Florida’s 1^st District Court of Appeal in 2021 found that court rules did not allow it to decide on the issue, although two other state appeals courts had decided differently. UF and Shands asked the high court to step in and clarify.

The Supreme Court did that, allowing the interlocutory appeals. The court found that the district court of appeals did not have the authority to rule on the expert qualification question. At the same time, in a separate order, the court changed the rules to allow those types of appeals.

Before the ruling, a defendant in many medical cases had to wait until the end of a trial to appeal a motion to dismiss a suit based on the plaintiff expert’s qualifications. After the rules change, the defense can now call a time out and move for an interlocutory appeal when a lower court denies a motion to dismiss.

Labarga, in his July dissent, had argued that the rules change was monumental and should go through a court committee and proper deliberations.

Topics Florida