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Preparing a Med Mal Case in Florida: Beware of Your Verified Medical Opinion

Among the twists and turns provided in Chapter 766 for the presuit initiation and investigation of medical malpractice litigation in Florida, section 766.203(2) requires a verified medical opinion to provide “corroboration of reasonable grounds to initiate medical negligence litigation” against the prospective defendant. Although this statute restricts access to courts, a recent opinion from the 2nd DCA reveals that Florida courts can require strict compliance with this statute, and will narrowly construe its terms. How do you make sure that your client’s rights are protected?

In Rell v. McCulla, 37 FLW D2399 (Fla. 2d DCA 1012), the plaintiff brought a case against a podiatrist after multiple surgeries and a steroid injection caused injuries to the anterior tendon in his right ankle. The plaintiff’s expert issued two written opinions in the case. Taken together, the opinions identified the surgical procedure which likely injured the plaintiff’s tendon, and further identified the likely mechanism of injury by which the tendon was torn during the surgery: the surgical injection of steroids either weakened the tendon or predisposed it to tearing.

The plaintiff’s expert’s written opinion further stated that there were “reasonable corroborating grounds to further investigate a claim of medical negligence” against the defendant.

On a motion to dismiss, the trial court found the verified medical opinion was sufficient to satisfy the statute, and that the statute must be broadly construed in order not to offend the access to courts provision of the Florida constitution.

The 2d DCA disagreed, quashed the trial court’s order, and remanded the case for further proceedings (presumably a dismissal).

The 2d DCA found that the verified medical opinion failed to allow the defendant the ability to properly investigate the claim. Because the verified medical opinion did not corroborate reasonable grounds for initiating medical malpractice litigation, because the verified medical opinion did not identify what was negligent on the part of the defendant, and because the verified medical opinion only corroborated grounds for further investigation of the claim, the plaintiff had failed to satisfy the statute. Dismissal was proper.

Practice tip: make certain your verified medical opinion tracks the language of the statute. Make sure it corroborates reasonable grounds for initiating medical malpractice litigation and make sure it specifically identifies the negligent acts that probably caused the plaintiff’s injuries.

To read the Rell opinion, click here.