Fla. SC says appeals court exceeded authority

By Jessica M. Karmasek | May 13, 2011

TALLAHASSEE, Fla. (Legal Newsline) - The Florida Supreme Court, in a ruling last week, said the state's First District Court of Appeal exceeded its authority by granting certiorari to review whether a plaintiff's expert met the proper qualifications.

On March 8, 2007, plaintiff Ted Williams sent a notice of intent to initiate litigation to Dr. Keith Oken and the Mayo Clinic of Jacksonville. The notice alleged that on Feb. 4, 2005 Williams went to the emergency room at St. Luke's Hospital complaining of chest pain.

There, he was evaluated by Dr. Catherine Northrop. Northrop assessed Williams and then ordered a consultation with Oken, a board-certified cardiologist. Williams alleged that, as a result of Oken's negligence, he suffered an acute myocardial infarction.

He alleged that Oken was negligent in misrepresenting EKG results, failing to admit him to the hospital, failing to conduct a full work-up, and later recommending that he take Maalox when he called in with worsening symptoms.

Attached to his notice was the corroborating affidavit and curriculum vitae, or CV, of a Dr. Foster. The doctor's affidavit and CV revealed he was "familiar with the appropriate work-up and treatment of suspected cardiac patients in the emergency room, and the consequences of failure to timely provide appropriate work up and treatment under such circumstances," and that he was "familiar with the standard of care of reasonably careful physicians in diagnosing and treating impending myocardial infarction under the same or similar circumstances as those presented in this case."

The affidavit and CV also indicated that Foster had been employed as an emergency room physician at multiple hospitals.

On Aug. 6, 2007, Williams filed a formal complaint in the Fourth Judicial Circuit Court in Duval County, alleging the same facts contained in the notice. Oken filed a motion to dismiss the complaint for Williams' alleged failure to timely comply with statutory presuit requirements of the state's Medical Malpractice Reform Act.

Specifically, Oken alleged that Foster was not an expert in the field of cardiology, and, as a result, Williams had failed to comply with the act because he failed to attach a corroborating affidavit from a qualified medical expert.

Williams filed a supplemental affidavit from Foster, indicating that Foster was board certified in emergency room and family medicine. It also indicated that both of those medical fields involve the "evaluation, diagnosis, or treatment of acute chest pain and impending myocardial infarction," and that Foster had "performed 15,000 to 20,000 evaluations of chest pain in an emergency room setting."

Based on the supplemental affidavit, the trial court concluded that Foster was qualified as an expert and denied Oken's motion to dismiss. Oken then petitioned the First District for a writ of certiorari.

The First District held that certiorari review was appropriate and Foster, as an emergency medicine and family physician, was not qualified to provide an expert corroborating affidavit for a cardiology-related claim. It granted Oken's petition for writ of certiorari and quashed the trial court's denial of the motion to dismiss.

On Jan. 13, 2010, Williams filed a notice to invoke discretionary review jurisdiction in the state's high court, alleging express and direct conflict between the First District's decision below and the district court decisions in Campbell v. State, Fassy v. Crowley, St. Mary's Hospital v. Bell, Fine v. Carney Bank of Broward County, and Finchum v. Vogel.

The Court, in its per curiam opinion filed Thursday, quashed the First District's decision.

It said the First District "exceeded its authority" in granting the writ of certiorari to review the sufficiency of Foster's qualifications.

Instead of granting Oken's petition, the Court said the First District should have dismissed the petition because Williams complied with the procedural statutory requirements -- the filing of the initial and supplemental affidavits and the CV.

"Dr. Oken was afforded the process guaranteed by statute because he received advance notice and an opportunity to examine Williams' claim before the filing of the lawsuit. Thus, a deprivation of the process did not occur," the Court wrote.

As to whether the trial court erred in finding that Foster was a qualified expert, that is "an issue of mere legal error" insufficient to merit certiorari review, the Court said.

Because it found that the First District's grant of certiorari was inappropriate, the Supreme Court declined to address Williams' remaining issues.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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