State and national groups representing hospitals and doctors are trying to help sway the Florida Supreme Court in a dispute about whether a medical malpractice lawsuit should have been allowed to move forward.
The Supreme Court on Wednesday approved a request by the Florida Hospital Association, the Florida Medical Association and the American Medical Association to file a brief supporting an attempt by the University of Florida and Shands Teaching Hospital and Clinics to short-circuit the lawsuit.
The dispute could have broader implications because it involves questions about the qualifications of doctors who provide expert opinions required before medical-malpractice lawsuits can proceed. The Supreme Court in May agreed to hear the case after the 1st District Court of Appeal ruled against UF and Shands.
Plaintiff Laurie Carmody filed a notice that she planned to pursue a malpractice lawsuit because of an infection she suffered after having a cervical disc fusion in 2016, according to court documents. State law requires plaintiffs to follow a pre-suit process in malpractice cases that includes submitting affidavits of doctors who offer opinions that negligence occurred.
Carmody alleged that Shands employees Dr. William Friedman, a neurosurgeon, and Yolanda Gertsch-Lapcevic, an advanced registered nurse practitioner, had been negligent, according to court documents. She submitted an affidavit of Dr. James DeStephens, a physician who practiced in internal medicine and cardiology and had worked as a hospitalist.
UF and Shands sought to dismiss the case, at least in part, because they said DeStephens was not qualified to provide expert opinions related to neurosurgery. A circuit judge ultimately decided that DeStephens was qualified to provide an expert opinion about post-surgical care provided by the advanced registered nurse practitioner, court documents show.
The university and Shands appealed, but a panel of the 1st District Court of Appeal said in November that appellate courts lack jurisdiction to “address non-procedural disputes concerning the qualifications of claim-corroborating experts.” In doing so, however, the Tallahassee-based court acknowledged that other appellate courts had reached different conclusions on the issue.
That prompted UF and Shands to ask the Supreme Court to take up the dispute.
In seeking approval this week to file a friend-of-the-court brief, the Florida Hospital Association, the Florida Medical Association and the American Medical Association — which have long sought to curb medical-malpractice lawsuits — pointed to potential broader implications of the case.
“The requirement under (part of state law) that a claimant obtain a supporting affidavit from a medical expert in the ‘same specialty’ as a prospective defendant before filing a medical malpractice lawsuit, helps protect healthcare providers from frivolous claims,” the groups’ motion said. “The decision of the (Supreme) Court in this case will have statewide impact on medical malpractice litigation.”
But in a brief filed in April, Carmody’s attorneys argued that the Supreme Court shouldn’t consider the case.
“Here, the trial court properly conducted an evidentiary hearing to ascertain whether the plaintiff’s medical doctor expert was qualified to address the standard of care applicable to the nurse practitioner pursuant to (part of state law),” the brief said. “The First District Court of Appeal properly found that the trial court held an evidentiary hearing, understood its gatekeeping role under the statute, and ultimately ruled that Carmody's expert and the corroborating affidavit satisfied the requirements of the Medical Malpractice Act. In doing so, the trial court complied with the procedural requirements of the law.”
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