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The below content previously appeared in the May 2023 issue of the Broward County Bar Association’s Barrister magazine.
Appellate court upholds trial court order enforcing discovery freeze between first and second trials.
After the first trial resulted in a mistrial following the jury’s verdict, the successor judge entered a “freeze” order precluding additional discovery, witnesses, or motions without a court order. The court then refused to allow the plaintiff to utilize an updated expert opinion during the second trial. On appeal, among other things, the appellate court upheld the decision to exclude that “new” testimony under a Binger analysis, giving the trial court appropriate discretion in upholding the freeze order. Kipp Cooper and Classic Plumbing of Brevard, LLC v. Gonzalez, Case No. 5D22-0079 (Fla. 5th DCA March 31, 2023).
Should appellate courts review, on certiorari, whether a specific doctor qualifies as an expert for presuit purposes in a medical malpractice case?
This appeal followed the trial court’s denial of a motion to dismiss certain medical malpractice claims based on the plaintiffs’ failure to comply with presuit, the sufficiency of their expert’s affidavit, and his qualifications. In virtually identical concurring opinions, two Second District judges seem to be joining the First District in its interpretation of how far that certiorari jurisdiction should extend. The pending question, perhaps to be decided by the Florida Supreme Court, is whether an appellate court has certiorari jurisdiction to review whether a specific doctor qualifies as an expert. Time will tell. Florida Health Sciences Center, Inc. v. Jackman, Case No. 2D22-1158 48 Fla. L. Weekly D531 (Fla. 2d DCA March 10, 2023).
An incident report involving a visitor who slipped and fell in a hospital is deemed “patient safety work product” protected from discovery.
The plaintiff, who slipped and fell on clear liquid while visiting a patient at the hospital, sought to discovery any investigative reports prepared in response to her fall. The hospital sought to protect a report that they claimed was prepared “solely for submission to a patient safety organization.” The trial court found that the federal Patient Safety and Quality Improvement Act only applied to records involving “patients” and ordered the hospital to produce the records. On certiorari review, the First District reversed, finding that because the report was assembled by a provider, reported to a patient safety organization, and could result in improved patient safety, it qualified as protected under the Act. Shands Teaching Hosp. and Clinics, Inc. v. Beylotte, No. 1D22-1277, 48 Fla. L. Weekly D522 (Fla. 1st DCA March 8, 2023).
A claim that alleges that emergency care provided by health care provider fell below the standard of reasonable care is a medical negligence claim, not a statutory claim for the failure to render emergency services altogether.
It is up to the trial court to determine whether a claim is one for medical negligence, ordinary negligence, or based on a separate statutory theory of liability. As such, the decision is reviewable by an appellate court, de novo. It is the allegations of the complaint, and not the legal conclusions as to the type of claim asserted, that govern the legal analysis. If a plaintiff is required to show that the alleged negligence constituted a breach of the prevailing professional standard of care, it is a medical negligence case, subject to a two-year statute of limitations and the presuit requirements denoted in Chapter 766, not a statutory claim based on the failure to provide such care at all, as set forth in Chapter 395. Ramsay v. South Lake Hosp., No. 5D22-1161, 48 Fla. L. Weekly D384 (Fla. 5th DCA Feb. 17, 2023).
Life care planner, who is disclosed as such, cannot give opinions about future medical needs, regardless of qualifications.
In this personal injury matter, the life care planner also happened to be a practicing neurosurgeon with a medical degree. However, the appellate court held that it was an abuse of discretion for the trial court to allow him to testify about his opinion regarding the patient’s future medical needs where he had not been disclosed as a medical expert or an expert acting in a dual capacity. Let this serve as yet another reminder of the need for proper expert disclosures. Anderson-Moody v. Wilson, 1D21-2560, 48 Fla. L. Weekly D380 (Fla. 1st DCA Feb. 15, 2023).