In this case, the patient underwent eye surgery and developed a severe infection after the procedure. She instituted a medical malpractice case against the ophthalmologist claiming that he committed malpractice because he used improperly sterilized instruments.
In Florida, a medical malpractice case begins when the patient serves the doctor or hospital with a Notice of Intent. Attached to the notice of intent, the patient must attach an affidavit of a doctor who is in the same specialty or specializes in a similar specialty that includes the diagnosis, evaluation or treatment of the medical condition at issue.
In this case, the patient utilized the affidavit of an infectious disease doctor taking the position that the expert diagnoses, evaluates and treats infections, including infections of the eye.
The ophthalmologist asked the court to dismiss the case and the court granted the motion. The patient then appealed the case the Fourth District Court of Appeal that hears cases in our area including Martin, St. Lucie and Indian River Counties.
The Fourth District affirmed the trial court’s dismissal stating:
Simply put, the infectious disease doctor is not an eye surgeon nor is the ophthalmologist an infectious disease doctor.
The infectious disease doctor does not “specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of” a bilateral blephroplasty (eye lid surgery) or any type of surgery.
This matters because in 2013, the legislature pretty much did away with the similar specialty part of the law. Now, a patient who claims they are a victim of medical malpractice has to retain an expert in the “same specialty.” This is just another hurdle that hurts victims of medical malpractice. Let me give you a few examples pointing out the hurdle.
Neurosurgeons and a subset of orthopedic surgeons both perform spine surgery. If a neurosurgeon allegedly committed malpractice, the patient could not utilize an orthopedic surgeon as an expert.
Plastic surgeons and a subset of orthopedic surgeons can specialize in hand surgery. If an orthopedic surgeon alleged committed malpractice, the patient could not have a plastic surgeon testify regarding the negligence.
Gynecologists and family doctors perform gynecological examinations of patients. If a family doctor is negligent in working up or treating his patient’s gynecological issues, a gynecologist could not be used as an expert.
What are your thoughts regarding these changes?
Florida medical malpractice law can be complex and there are a number of traps for unsuspecting patients. If you have any questions about a potential medical malpractice claim in treasure coast, give me a call.