Angel Tomas v. Dmitry Sandler, DPM

• Court: District Court of Appeal of Florida
• Decided: March 26, 2025
• Docket: 3D2023-2157
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 26, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-2157 Lower Tribunal No. 22-CA-34-P ________________

Angel Tomas, Appellant,

vs.

Dmitry Sandler, DPM, et al., Appellees.

An Appeal from the Circuit Court for Monroe County, Luis Manuel Garcia, Judge.

Gerson & Schwartz, P.A., Philip M. Gerson, and Edward S. Schwartz, for appellant.

McEwan, Martinez, Dukes, Hall & Vancol, P.A., Rafael E. Martinez, and Zachary D. Trapp (Orlando), for appellees, Dmitry Sandler, DPM and Southernmost Foot & Ankle Specialists, P.A.

Wicker Smith O’Hara McCoy & Ford, P.A. and Jessica L. Gross, for appellee, Mariners Hospital, Inc.

Before EMAS, MILLER, and BOKOR, JJ. MILLER, J.

Dmitry Sandler, DPM performed an ankle replacement on Angel

Tomas at Mariners Hospital, Inc. After Tomas experienced wound

dehiscence, osteomyelitis, and chronic infection, he brought negligent

credentialing and apparent authority claims against Mariners and a medical

malpractice suit against Southernmost Foot and Ankle Specialists, P.A., and

Dr. Sandler, individually, alleging vicarious liability and medical negligence,

respectively. The trial court dismissed the claims against Mariners due to a

deficient presuit corroborating expert affidavit and the remaining claims for

failure to join the State of Florida and the Florida Department of Health as

indispensable parties. Tomas seeks review of this decision.

I

Tomas sustained a left ankle fracture and subsequently sought

treatment from Good Health Clinic. According to Dr. Sandler, the Clinic

operates in conjunction with the Florida Department of Health Volunteer

Health Care Provider Program, which provides healthcare services to the

indigent. The Clinic, in turn, referred Tomas to Dr. Sandler, a board-certified

foot and ankle surgeon, at Southernmost. Dr. Sandler performed total ankle

replacement surgery on Tomas at Mariners Hospital using the Scandinavian

Total Ankle Replacement (“STAR”).

2 Following the surgery, Tomas purportedly suffered from loss of ankle

function, as well as chronic infection and other complications. He served

Mariners with a Notice of Intent to Initiate Litigation. Appended to the notice

was the corroborating affidavit of Matthew D. Sorensen, DPM, another

board-certified foot and ankle surgeon. Dr. Sorenson reviewed records from

several providers, including the Clinic, Southernmost, Dr. Sandler, and

Mariners, and opined that Dr. Sandler was negligent in multiple respects:

a. Providing excessive contraindicated serial steroid injections over an extended period prior to surgery b. Fail[ing] to obtain an informed consent by disclosing to patient potential for outcomes as well as the recognized and foreseeable risks of surgical complications from the procedure. c. Fail[ing] to obtain an informed consent by disclosing to patient the training, experience, and qualifications to perform ankle replacement surgery. d. Fail[ing] to obtain an informed consent by disclosing to patient the surgical option of ankle fusion as an alternative to the ankle replacement surgery.

e. Performing a contraindicated surgical procedure based on the patient’s prior history and co-morbid medical conditions and lifestyle.

f. Applying improper surgical techniques during ankle replacement surgery. g. Fail[ing] to provide timely and appropriate post-surgical care complications for nonhealing surgical wounds and infection.

h. Fail[ing] to provide timely and appropriate recommendations for further surgery to treat the non-healing infected surgical wounds.

3 i. Performing a total left ankle replacement procedure in lieu of an ankle fusion procedure.

j. Undertaking a surgical procedure for which he lacked adequate qualification, training or experience to perform properly.

k. Fail[ing] to provide adequate conservative and palliative post- surgery care.

I. Fail[ing] to monitor Mr. Tomas adequately for infection or other complications.

m. Fail[ing] to obtain informed consent by advising Mr. Tomas adequately of the indications and contraindications for surgery and the optimal surgical technique to employ. n. Fail[ing] to review applicable medical records of Mr. Tomas adequately before undertaking surgery, selecting a surgical technique, and performing surgery. He then rendered the further opinion that

Mariners Hospital, Inc. fell below applicable standards of care for credentialing surgeons in credentialing and authorizing Dr. Sandler to perform a total ankle replacement procedure. It is therefore my opinion within reasonable medical probability that Mariners Hospital, Inc. fell below applicable standards of care in their supervision and credentialing of Dr. Sandler and was therefore negligent, and that this negligence resulted in injury to Mr. Tomas as summarized above. Tomas brought suit against Dr. Sandler and the treating entities. In his

third amended complaint, Tomas alleged medical negligence against Dr.

Sandler, vicarious liability against Southernmost, and negligent credentialing

and apparent authority against Mariners. 1 Several documents including a

1 Although the Clinic is a named party in the lower court and this appeal, it was never served process.

4 referral form, Dr. Sandler’s STAR training certificate, the Notice of Intent to

Initiate Litigation, and Dr. Sorenson’s affidavit2 were attached to the

complaint. The referral form contained the following language:

The care you receive from the volunteer health care professionals will be provided at no charge to you. . . . By acceptance of this referral, you acknowledge that the [State of Florida] is solely liable for any injury or damage suffered by you . . . and that the State’s liability is limited as found in section 768.28, Florida Statutes (copy provided).

Invoking this language, the treatment providers moved to dismiss the

complaint on the basis that the State was an indispensable party. Mariners

further sought dismissal of the negligent credentialing claim on the ground

that Dr. Sorenson’s presuit affidavit was deficient. The trial court dismissed

the complaint, and this appeal ensued.

II

A

This appeal implicates several standards of review. We conduct a de

novo review of an order granting a motion to dismiss a complaint with

prejudice. Johansson v. Mia.-Dade Cnty. Value Adjustment Bd., 346 So. 3d

90, 92 (Fla. 3d DCA 2022). “Generally, a dismissal of a medical malpractice

action for failure to comply with the presuit requirements is reviewed for

2 Tomas attempted to remedy the defect by filing a supplemental affidavit after the statute of limitations expired.

5 abuse of discretion. But the trial court’s ruling that the appellants’

corroborating affidavit failed to comply with the statutory requirements is

reviewed de novo.” Oliveros v. Adventist Health Sys./Sunbelt, Inc., 45 So.

3d 873, 876 (Fla. 2d DCA 2010) (citations omitted); see also Univ. of Fla. Bd.

of Trs. v. Carmody, 372 So. 3d 246, 253–54 (Fla. 2023) (finding the post-

2013 amended medical malpractice statutes “still call[] on the trial courts to

make some discretionary decisions” involving the presuit affidavit). This

court reviews a question of whether a party is legally indispensable de novo.

Fla. Dep’t of Revenue v. Cummings, 930 So. 2d 604, 607 (Fla. 2006).

B

Tomas first contends the trial court erred in dismissing his claims

against Mariners on the basis that his corroborating presuit affidavit was

insufficient. We are not so persuaded.

Section 766.203, Florida Statutes (2022), governs the presuit

investigation of medical negligence claims. Subsection (2) requires

corroboration of reasonable grounds to support a claim “from a medical

expert as defined in s. 766.202(6).” § 766.203(2), Fla. Stat. Section

766.202(6), Florida Statutes (2022), in turn, defines such an expert as one

who qualifies under section 766.102, Florida Statutes (2022). Section

766.102(5) requires an expert to specialize in the same specialty as the

6 healthcare provider against whom the testimony is being offered. Section

766.102(7) further provides the requirements for expert witnesses testifying

on the standard of care as to administrative and other nonclinical issues in

actions against hospitals or other medical facilities.

By their plain language, the presuit statutes require corroboration of all

medical negligence claims by a qualified expert. See §§ 766.102(5), 202(6),

203(2), Fla. Stat. The purpose of the medical expert opinion is to “assure

the defendants, and the court, that a medical expert has determined that

there is justification for the plaintiff’s claim; that is, the purpose is not to give

notice of the plaintiff’s claim, but rather to corroborate that the claim is

legitimate.” Rell v. McCulla, 101 So. 3d 878, 881 (Fla. 2d DCA 2012)

(quoting Davis v. Orlando Reg’l. Med. Ctr., 654 So. 2d 664, 665 (Fla. 5th

DCA 1995)) (internal quotation marks and alterations omitted); see also

DeCristo v. Colum. Hosp. Palm Beaches, Ltd., 896 So. 2d 909, 911 (Fla. 4th

DCA 2005); Shands Teaching Hosp. & Clinics, Inc. v. Barber, 638 So. 2d

570, 572 (Fla. 1st DCA 1994). In this vein, “the notice of intent to initiate

litigation and the corroborating medical expert opinion, taken together, must

sufficiently indicate the manner in which the defendant . . . allegedly deviated

from the standard of care, and must provide adequate information for the

defendants to evaluate the merits of the claim.” Rell, 101 So. 3d at 881

7 (quoting Ragoonanan ex rel. Ragoonanan v. Assocs. in Obstetrics &

Gynecology, 619 So. 2d 482, 484 (Fla. 2d DCA 1993)) (internal quotations

and alterations omitted).

Negligent credentialing, otherwise known as negligent privileging, is a

distinct tort that “involve[s] wrongful conduct both by the person who is

derivatively liable and the actor whose wrongful conduct was the direct cause

of injury to another.” Grobman v. Posey, 863 So. 2d 1230, 1235–36 (Fla.

4th DCA 2003) (quoting William D. Underwood & Michael D. Morrison,

Apportioning Resp. in Cases Involving Claims of Vicarious, Derivative, or

Statutory Liab. for Harm Directly Caused by the Conduct of Another, 55

Baylor L. Rev. 617, 619 (2003)). It is administrative, rather than medical, in

nature. The plaintiff bears the burden of proving that the hospital negligently

granted privileges to a physician it knew or should have known was

incompetent or unqualified. See Peter Schmit., Causes of Action for

Negligent Credentialing, 18 COA 2d 329, § 6 (2025).

Here, Dr. Sorenson stated in his presuit affidavit that the hospital

negligently credentialed Dr. Sandler to perform a total ankle replacement.

The affidavit, however, is devoid of detail as to the administrative standard

of care relating to credentialing or any supporting facts. Consequently,

Mariners was left with no information to evaluate the merits of the negligent

8 credentialing claim. We therefore impute no error in the finding that the

affidavit was deficient. See Rafferty v. Martin Mem’l Med. Ctr., Inc., 335 So.

3d 144, 144 (Fla. 4th DCA 2022) (“While the corroborating statements the

plaintiff submitted with the notice of intent identified reasonable grounds to

initiate medical malpractice litigation against the midwife who delivered the

baby, nothing in the statements addressed any deficiencies in the care

provided by the hospital and its nursing staff. Thus, dismissal is

required . . . .”); Univ. of S. Fla. Bd. of Trs. v. Mann, 159 So. 3d 283, 284

(Fla. 2d DCA 2015) (“[N]othing in the affidavit addresses any deficiencies in

the care provided by the nursing staff or supervisors.”); Rell, 101 So. 3d at

881 (stating that the notice of intent to initiate litigation and corroborated

medical expert opinion “must provide adequate information for the

defendant[] . . . to evaluate the merits of the claim”) (quotation marks and

citations omitted). To conclude otherwise would allow every plaintiff to

automatically transform any individual medical malpractice claim against a

physician with credentials or privileges into an administrative claim without

complying with the safeguards of section 766.102(7). See Moncrief v.

Kollmer, 397 So. 3d 190, 195 (Fla. 5th DCA 2024) (“That theory, if accepted,

would eviscerate the Legislature’s authority to impose conditions on the

initiation of medical-malpractice suits.”).

9 C

Tomas next contends the trial court erred in dismissing the remaining

claims for failure to join the State as an indispensable party. In Florida, the

failure to join an indispensable party is properly raised by motion. See Fla.

R. Civ. P. 1.140(b)(7). Although the term is somewhat nebulous, the United

States Supreme Court has defined an indispensable party as a

[p]erson[] who not only ha[s] an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience[.]

Shields v. Barrow, 58 U.S. 130, 139 (1854).

The law distinguishes between “indispensable” parties and others who

are more aptly characterized as merely “necessary.” Joinder is compulsory

as to the former, but permissive as to the latter. The Florida Supreme Court

has explained this dichotomy as follows:

Indispensable parties are necessary parties so essential to a suit that no final decision can be rendered without their joinder. This is in contrast to other necessary parties, who have an interest in a suit and ought to be made parties, but who do not have to be joined before a final decision may be rendered. A final decision will bind those parties joined in the suit, but will have no effect on the rights of necessary but unjoined parties.

Hertz Corp. v. Piccolo, 453 So. 2d 12, 14 n.3 (Fla. 1984).

10 In assessing whether a party is indispensable, this court has reasoned

that “it is not necessary to join all persons potentially liable for damages for

an action to proceed.” Diaz v. Impex of Doral, Inc., 7 So. 3d 591, 594 (Fla.

3d DCA 2009). In this vein, “the mere fact that the absence of a party in one

lawsuit may lead to multiple litigation is [an] insufficient reason to declare a

person to be an indispensable party.” W.R. Cooper, Inc. v. City of Miami

Beach, 512 So. 2d 324, 326 (Fla. 3d DCA 1987).

Against these principles, we examine the instant case. Here, the

providers contend the State is an indispensable party because they provided

treatment in their capacity as agents of the State. The flaw in this reasoning

is twofold.

First, although the argument is couched in terms of “failure to join an

indispensable party,” it is essentially an indirect assertion of sovereign

immunity. A factual determination as to whether the providers were negligent

in treating Tomas is not dependent upon the addition of the State as a party,

and whether the providers enjoy immunity as agents of the sovereign has

not yet been litigated. While we are cognizant that this court has found that

“[g]overnmental immunity may be raised any time[,]” including for the first

time on appeal, because it “relates to subject matter jurisdiction,” the referral

form cannot be viewed in isolation to support the application of sovereign

11 immunity upon this undeveloped factual record. See State, Dep’t of Highway

Safety & Motor Vehicles, Div. of Highway Patrol v. Kropff, 491 So. 2d 1252,

1254 n.1 (Fla. 3d DCA 1986).

Second, the parties concede that any potential cause of action against

the State or its agencies is barred by the statute of limitations. The Fourth

District Court of Appeal has twice found that

the underlying rationale of the rule requiring joinder of indispensable parties, i.e., to protect the defendant from the expense of defending multiple separate lawsuits and the exposure to multiple separate judgments arising out of the same claim, [is] eliminated by the expiration of the statute of limitations.

DeToro v. Dervan Invs. Ltd. Corp., 483 So. 2d 717, 722 (Fla. 4th DCA 1985);

see also Meyerowich v. Carrere Gen. Contractors, Inc., 611 So. 2d 41, 42

(Fla. 4th DCA 1992) (“[A] court ought not to dismiss an action on the grounds

of failure to join an indispensable party if dismissal would foreclose the claim

of the present plaintiff[] and the only adverse result of failure to dismiss is a

possible subsequent action against the defendant by the missing party.”)

(quoting Phillips v. Choate, 456 So. 2d 556, 558 (Fla. 4th DCA 1984)) (first

alteration in original). In light of these principles, we conclude that joinder of

the State was not required. See LeGrande v. Emmanuel, 889 So. 2d 991,

996 (Fla. 3d DCA 2004).

12 Accordingly, we affirm that portion of the order dismissing the negligent

credentialing claim against Mariners and reverse that aspect dismissing the

remaining claims for failure to join an indispensable party.

Affirmed in part; reversed in part; remanded.