FORT WALTON BEACH MED. CENTER v. Dingler

697 So. 2d 575
CourtDistrict Court of Appeal of Florida
DecidedAugust 5, 1997
Docket97-934, 97-937
StatusPublished
Cited by16 cases

This text of 697 So. 2d 575 (FORT WALTON BEACH MED. CENTER v. Dingler) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
FORT WALTON BEACH MED. CENTER v. Dingler, 697 So. 2d 575 (Fla. Ct. App. 1997).

Opinion

697 So.2d 575 (1997)

FORT WALTON BEACH MEDICAL CENTER, INC., and Robert D. Siwicki, individually, and Robert D. Siwicki, P.A., Petitioners,
v.
Tony M. DINGLER and Staci L. Dingler, husband and wife, Respondents.

Nos. 97-934, 97-937.

District Court of Appeal of Florida, First District.

August 5, 1997.

*576 Frank C. Bozeman, Jr. of Bozeman, Jenkins & Matthews, P.A., and Ann J. Tipton of Lozier, Tipton, Tipton & Thames, Pensacola, for Petitioner Fort Walton Beach Medical Center, Inc.

A.G. Condon, Jr. of Emmanuel, Sheppard & Condon, Pensacola, for Petitioners Robert D. Siwicki & Robert D. Siwicki, P.A.

Gillis E. Powell, Jr. of Powell, Powell & Powell, Crestview, and Stanley Bruce Powell, P.A., Niceville, for Respondents.

VAN NORTWICK, Judge.

In this consolidated proceeding, Fort Walton Beach Medical Center, Inc., Robert D. Siwicki, D.P.M., individually, and Robert D. Siwicki, P.A., petition for writ of certiorari to review an order denying petitioners' motions which sought dismissal of the medical malpractice *577 action filed by Tony M. Dingler and Staci L. Dingler, respondents. Petitioners argue that the trial court departed from the essential requirements of law in refusing to dismiss the instant action because respondents' corroborating expert lacked the qualifications required by section 766.202(5), Florida Statutes (1991), and respondents failed to remedy such defect within the applicable statute of limitations. Because we conclude that the trial court did not depart from the essential requirements of law in ruling that the corroborating expert's qualifications satisfied section 766.202(5), we deny the petition.

I

On February 25, 1991, petitioner Robert D. Siwicki, a podiatrist, performed surgery on the right foot of respondent, Staci Dingler, at the petitioner hospital, Fort Walton Beach Medical Center. Following the surgery, Mrs. Dingler developed a lesion on her right calf which Siwicki suggested in his notes might have been caused by Betadine solution seeping under the pneumatic tourniquet placed on Mrs. Dingler's leg during surgery. Scar tissue from the healed lesion was later excised from Mrs. Dingler's calf resulting in a less than satisfactory cosmetic appearance of her calf.

Respondents served an initial and amended notice of intent to initiate litigation against petitioners in March 1993 and April 1993, respectively. Those notices stated that Siwicki had been negligent during Mrs. Dingler's surgery and that his negligence, together with the hospital's negligence, caused or allowed Betadine solution to chemically burn her right calf causing permanent scarring. The notices were accompanied by corroborating opinions and affidavits from Elliott Bernard Oppenheim, M.D.

Dr. Oppenheim's curriculum vitae was incorporated into his affidavits. It shows that he was board certified in family practice; completed his surgical internship at Providence Medical Center and surgical residency at the University of British Columbia; and has undertaken specialized surgical clerkships at Oxford University, Peter Brent Brigham Hospital and Stanford University. According to his curriculum vitae, Dr. Oppenheim, who had been licensed to practice medicine in the State of Washington, ceased the regular practice of medicine in June 1992 to attend law school and has not been licensed to practice medicine in any jurisdiction since December 1992. Dr. Oppenheim's first affidavit stated that he considers himself a "medical expert" as defined by section 766.202(5), Florida Statutes (1991). His second affidavit stated that he considered himself a "medical expert" as defined by section 766.102(2)(c)2., Florida Statutes (1991).

Respondents filed their complaint against petitioners in December 1993, alleging that both petitioners were medically negligent in the manner described in their presuit notices. In their answers, each petitioner raised as an affirmative defense that respondents had failed to corroborate their claim as required by section 766.203(3), Florida Statutes (1991), because Dr. Oppenheim, their corroborating expert, was not duly and regularly engaged in the practice of his profession at the time his investigation was undertaken and affidavit filed as required by section 766.202(5).

Subsequently, petitioners filed motions seeking dismissal of this action arguing that Dr. Oppenheim's affidavits could not constitute corroboration of respondents' claims as contemplated by the presuit investigation since the affidavits showed that he was not qualified as a "medical expert" as defined in section 766.202(5), Florida Statutes (1991). Following extensive briefing of the issues by the parties and a hearing, the trial court denied the petitioners various motions, citing Kukral v. Mekras, 679 So.2d 278 (Fla.1996).

II

Section 766.104(1), Florida Statutes (1991), provides that "[n]o action shall be filed for personal injury or wrongful death arising out of medical negligence ... unless the attorney filing the action has made a reasonable investigation... to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant." This statute provides a safe harbor for the attorney's good faith determination in that "good faith may be shown to exist if the claimant or his counsel has received *578 a written opinion ... of an expert as defined in s. 766.102 that there appears to be evidence of medical negligence."

Section 766.102, Florida Statutes (1991), among other things, sets forth the qualifications of the "health care provider" who may testify as an expert in a medical negligence action, and who, pursuant to section 766.104(1), may provide an opinion supporting the attorney's good faith presuit belief that there has been medical negligence. As relevant to the instant action, subparagraph 766.102(2)(c)2. provides that, "[a]ny health care provider may testify as an expert in any action" even though the proposed expert witness does not meet the standards for a "similar health care provider" under subsections 766.102(2)(a) and (b) if such person:

to the satisfaction of the court, possesses sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience, or knowledge must be as a result of the active involvement in the practice or teaching of medicine within the 5-year period before the incident giving rise to the claim.

Sections 766.201 through 766.206 set forth more detailed requirements for the presuit investigation and notice. Relevant to the instant action, section 766.202(4) requires the claimant's attorney to consult with and obtain an opinion from a medical expert. Further, section 766.203(2) requires that prior to the claimant issuing the notice of intent to initiate medical malpractice litigation pursuant to section 766.106, the claimant's presuit investigation must ascertain that there are reasonable grounds to believe that the proposed defendants were negligent in the care or treatment of the claimant and that such negligence resulted in injury to the claimant. Paragraph (2)(b) requires:

Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant's submission of a verified written medical expert opinion from a medical expert as defined in s.

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Bluebook (online)
697 So. 2d 575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fort-walton-beach-med-center-v-dingler-fladistctapp-1997.