TRIAL COURT ERRED IN DETERMINING THAT THE PLAINTIFF’S EXPERT POSSESSED THE SAME SUB-SPECIALTY AS THE DEFENDANT, AND THEN ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO COMPLY WITH PRE-SUIT REQUIREMENTS BASED ON THAT FINDING
Ghamra v. Williams, 50 Fla. L. Weekly D1989 (Fla. 2d DCA Sept. 5, 2025):
In this medical malpractice wrongful death lawsuit, the plaintiff’s served a notice of intent to initiate medical negligence litigation and attached an affidavit of a physician board certified in internal medicine, cardiovascular disease and interventional cardiology. The expert physician opined that the defendant doctor, as well as the other three physicians fell below the standard of care with respect to the cardiology and pulmonology consultations.
Twice before the expiration of the pre-suit period, as well as before the expiration of the statute of limitations, the physician and his medical group advised the plaintiff that her physician’s affidavit did not comply with section 766.102 because the expert did not share a specialty with the defendant.
The plaintiff opposed the motion to dismiss, arguing that specializing in the same specialty does not mean specializing in the same “sub-specialty.” The plaintiff asserted that the physician and the physician who provided the pre-suit affidavit, both specialized in internal medicine but practiced in critical care, pulmonology and cardiology respectively.
In support of the argument that internal medicine was the requisite specialty, the plaintiff cited the websites of the American Board of Internal Medicine, the American Board of Emergency Medicine, and a decision from the 6th DCA, Pradaxay v. Kendrick.
The trial court agreed with the plaintiff, denying the motion to dismiss after concluding that the two physicians did specialize in the same specialty: internal medicine.
The defendant argued that the pre-suit physician who specialized in cardiology, did not specialize in the same specialty because the defendant specialized in pulmonology or critical care pulmonology.
In the absence of a statutory definition for specialty or specialist, the court looked to sources bearing on its objective meaning as to what a reasonable reader would have understood it to mean. In the medical context, specialty is defined as that particular subject area or branch of medical science to which one devotes professional attention. A specialist is defined as one who has developed professional expertise in a particular specialty or subject area.
In this instance, the defendant was a pulmonologist who saw the decedent in response to a request for a pulmonology consultation based on the clear language of section 766.102(1)(5). The prevailing professional standard of care concerned pulmonology, requiring the plaintiff to provide an affidavit concerning the professional standard of care for pulmonology from an expert who specialized in the same specialty–pulmonology.
The court said its conclusion was buttressed by additional textual clues, namely that section 766.102(1)(5) differentiates between specialists and general practitioners, and provides criteria for each type of expert witness. Additionally, the court considered the legislature’s progressive narrowing of the medical expert qualifications for the purposes of chapter 766.
The court concluded it was constrained to reverse and remand for dismissal with prejudice because the plaintiff failed to provide an affidavit of an expert in the same specialty, rendering her pre-suit affidavit, legally insufficient.