Friday Florida Law Update- Medical Malpractice

TGIF all, and welcome back to the blog for your Friday Florida law update!  Today we discuss a Florida Supreme Court opinion in a medical malpractice case.  In Williams v. Oken, 2011 WL 1675242 (Fla. May 5, 2011), the Florida Supreme Court quashed the First District Court of Appeal’s Writ of Certiorari relating to a Motion to Dismiss denied at the trial court level. 

The facts of the case are that Plaintiff Williams went to the emergency room with chest pain.  After he was referred to a cardiologist, he was sent home with instructions to consume Maalox if the pain persisted.  Shortly thereafter, Plaintiff suffered a heart attack. 

Pursuant to Florida statutory procedures for medical malpractice cases, Plaintiff served the hospital and physician with a Notice of Intent to Sue.  In light of the malpractice insurance crisis faced by health care providers, Florida requires malpractice plaintiffs to follow a presuit process intended to ferret out frivolous cases and to promote early resolution in potentially meritorious ones.  As required by Florida law, Plaintiff attached a supporting Affidavit to his Notice from an emergency room physician opining that Defendant Oken had indeed committed medical malpractice. 

After the pre-suit process was completed, Plaintiff filed a civil action.  Defendants moved to dismiss, claiming that Plaintiff failed to follow presuit procedures because the emergency room physician was not a qualified expert in the field of cardiology.  The trial court denied the motion.  Defendants then filed a petition for a Writ of Certiorari to the appellate court.  These petitions are quasi-appellate procedures for mid-case situations where the Florida rules do not permit normal appeals in the middle of the case, a/k/a “interlocutory appeals.”  To obtain a Writ of Certiorari, petitioners must meet a higher standard than a normal appeal, proving, among other things, that the trial court departed from “the essential requirements of the law.” 

The First District Court of Appeal indeed granted the Defendants’ petition and issued a Writ of Certiorari, finding that Plaintiff’s supporting affidavit did not come from an appropriately qualified expert.  On appeal, the Florida Supreme Court reversed, quashing the First DCA’s finding.  The Supreme Court held that the First DCA overstepped its bounds in applying the “departed from the essential requirements of the law” standard by second-guessing the trial court’s assessment of the Plaintiff’s argument.  By analogy, the Supreme Court discussed that the heightened standard would have been appropriate for clear departures such as permitting a civil action if the Plaintiff had not attached any Affidavit to the Notice of Intent to Sue.  Reviewing the trial court’s judgment call about the adequacy of the expert, however, exceeded the appellate court’s authority.  The case was remanded for further proceedings in the trial court.

I have mixed views about this one.  I think the Supreme Court applied the law correctly.  The bigger picture question is, which system bears a greater risk of wasting legal resources in the future?  A system which permits potentially frivolous cases from going too far before they are overturned on appeal, or a system which potentially permits too much mid-case review by the appellate courts (the law’s version of stop-and-go driving).  The current system probably is the least imperfect of the bunch!

Have a great weekend everyone!!



THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction. 
Explore posts in the same categories: Florida Law Updates

2 Comments on “Friday Florida Law Update- Medical Malpractice”

  1. Roland Gour Says:

    Awesome work once again! I am looking forward for more updates!

  2. […] Images from:,,, […]

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