NO ERROR IN FINDING THAT PLAINTIFF’S EXPERT WAS NOT A MEDICAL EXPERT QUALIFIED UNDER SECTION 766.102(5) AND 766.202(6) — PLAINTIFF’S PROPOSED MEDICAL EXPERT WAS NOT ENGAGED IN THE PRACTICE OF MEDICINE NOR WAS HE A HEALTH CARE PROVIDER AS REQUIRED BY LAW

Moncrieff v. Kolmer, 49 Fla. L. Weekly D2310 (Fla. 5th DCA Nov. 15, 2024):

The plaintiff’s Notice of Intent to initiate a medical malpractice suit included the affidavit of a physician who stopped working as a “patient treater” in 2015. After that point, his sole employment was as an expert witness at his consulting firm. The defendant moved to dismiss based on this flaw in the presuit affidavit.

In evaluating the affidavit, the physician’s testimony made clear that he had not evaluated or treated any individual in the context of a “physician-patient” relationship in the four years before the plaintiff’s surgeries (and it was more than six years before the plaintiff filed her suit). His practice during that time frame consisted solely of legal consulting.

Section 766.203(2) requires a medical malpractice plaintiff to conduct a pre-suit investigation and provide a verified written medical expert opinion from a medical expert as defined in section 766.202(6), to corroborate that reasonable grounds exist to support the claim.

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 healthcare professional degree from a university or college and who meets the requirements of expert witness as set forth in section 766.102. That statute requires that the expert has devoted professional time during the three years immediately preceding the date of the occurrence to a clinical practice, instruction, or clinical research.

The expert that the plaintiff retained was not regularly engaged in the practice of his profession. While his legal consulting work was no doubt related to the practice of his profession, it was not itself a medical practice.

Nor was the doctor a healthcare provider as required by the section because, as a legal consultant, he did not provide any health care.

The plaintiff urged the court to look beyond the statutory text to the purpose of the pre-suit screening requirements, stressing that the Florida Supreme Court has instructed courts to construe them in a manner that favors access to the courts. However, in the face of clear statutory text, the court found the plaintiff’s argument unpersuasive. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of a legislative choice and it frustrates rather than effectuates legislative intent to “simplistically assume” that whatever furthers the statute’s primary objective must be the law.

In this case, the plaintiff quickly procured a qualified replacement expert after her first expert was stricken. This showed the court that its reading of the relevant statutes would not deny access to the courts and that the plaintiff could have easily obtained an expert whose qualifications satisfied the statutory requirements.