SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D23-1413 Lower Tribunal No. 2021-CA-009876-O _____________________________
PHENGSANITH PRADAXAY,
Appellant, v.
JAMES ERASMUS KENDRICK, IV, M.D., FLORIDA HOSPITAL MEDICAL GROUP, INC., d/b/a ADVENTHEALTH MEDICAL GROUP GYN ONCOLOGY AT ORLANDO, and ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a ADVENT HEALTH ORLANDO, Appellees. _____________________________
Appeal from the Circuit Court for Orange County. Jeffrey L. Ashton, Judge.
May 17, 2024
TRAVER, C.J.
Phengsanith Pradaxay appeals the trial court’s dismissal of her complaint
against, among others, James Erasmus Kendrick, IV, M.D., with prejudice for failing
to comply with certain statutory presuit requirements applicable to medical
malpractice actions under chapter 766, Florida Statutes. 1 We have jurisdiction over
1 This case was transferred from the Fifth District Court of Appeal to this Court on January 1, 2023. this final order. 2 See Fla. R. App. P. 9.030(b)(1)(A). Because Pradaxay complied
with her presuit obligation to submit a corroborating expert affidavit by a doctor with
the same specialty, we reverse.
Before filing suit for medical malpractice, a prospective plaintiff must conduct
a statutory presuit investigation. This investigation determines whether the
prospective plaintiff has “reasonable grounds to believe” that a prospective
defendant provided negligent care or treatment that caused injury to him or her. See
§ 766.203(2)(a)–(b), Fla. Stat. (2021). As part of this process, a prospective plaintiff
must submit a “verified written medical expert opinion from a medical expert . . .,
which statement shall corroborate reasonable grounds to support the claim of
medical negligence.” Id. § 766.203(2).
The Legislature defines “medical expert” as “a person duly and regularly
engaged in the practice of his or her profession who holds a health care professional
degree from a university or college and who meets the requirements of an expert
witness as set forth in s. 766.102.” § 766.202(6), Fla. Stat. (2021). Section
766.102(5) outlines several qualifications an expert witness must have before he can
testify against a specialist about the “prevailing professional standard of care.” §
766.102(5)(a), Fla. Stat. (2021). The qualification relevant in this case requires the
2 The trial court dismissed this matter with prejudice because the statute of limitations had run on Pradaxay’s causes of action, and she could not amend her statutory presuit compliance. 2 expert witness to “[s]pecialize in the same specialty as the health care provider
against whom or on whose behalf the testimony is offered.” § 766.102(5)(a)1., Fla.
Stat. (2021). The trial court determines whether the prospective plaintiff complied
with her statutory presuit requirements, and if she did not, it must dismiss her case.
See § 766.206(2), Fla. Stat. (2021).
Dr. Kendrick is a gynecological oncologist who is board certified in obstetrics
and gynecology (“OB-GYN”). Dr. Kendrick attested that gynecological oncologists
complete an additional three-to-four-year fellowship after their four-year OB-GYN
residency. This training includes basic science research, specialized surgical
training, and the treatment and management of gynecological cancers.
Dr. Kendrick saw Pradaxay after she had suffered through years of excessive
bleeding. When medication and an ablation procedure failed to resolve the issue,
Dr. Kendrick surgically removed Pradaxay’s uterus, cervix, ovaries, and fallopian
tubes. The bleeding did not stop, and Pradaxay ultimately initiated a presuit medical
malpractice investigation against Dr. Kendrick.
As part of this investigation, Pradaxay obtained an affidavit from Martin
Gubernick, M.D. Like Dr. Kendrick, Dr. Gubernick is board certified in OB-GYN.
Unlike Dr. Kendrick, Dr. Gubernick is not a gynecological oncologist. Dr.
Gubernick attested that Dr. Kendrick performed a medically unnecessary surgery
that negligently injured Pradaxay.
3 After Pradaxay filed this lawsuit, Dr. Kendrick moved to dismiss it. He
contended Pradaxay failed to comply with her presuit obligations because she had
not procured someone from his “same specialty” to support her claims. The trial
court conducted an evidentiary hearing. Pradaxay argued that gynecological
oncology was a sub-specialty of gynecology, and because Dr. Gubernick had the
same specialty of gynecology, she complied with section 766.102(5)(a)1. She
highlighted section 766.102(5)’s failure to use “sub-specialty” as support for her
position. Pradaxay also filed Dr. Kendrick’s deposition testimony to further her
argument. In it, he attested gynecological oncology was a sub-specialty of
gynecology. He also testified that he viewed Pradaxay’s likelihood of having cancer
as “low” before he operated, and that the operation disclosed no cancer.
The trial court granted Dr. Kendrick’s motion. It reasoned that “specialty”
meant “somebody with same educational background [who] works in the same
area.” And because gynecological oncology and gynecology required “different
education, different training, [and] different certifications,” dismissal was required.
Finally, the trial court found the term “sub-specialty” had no independent legal
significance, and the Legislature did not mean to distinguish or exclude it from the
statutory reference to “specialty.”
We review de novo whether Dr. Gubernick’s qualifications satisfied
Pradaxay’s statutory presuit obligations. See Morris v. Muniz, 252 So. 3d 1143,
4 1155–56 (Fla. 2018); Riggenbach v. Rhodes, 267 So. 3d 551, 554 (Fla. 5th DCA
2019). The purpose of the presuit process is “the prompt resolution of medical
negligence claims.” § 766.201(2), Fla. Stat. (2021). The Florida Supreme Court
directs us to construe these statutory obligations “in a manner that favors access to
courts.” Morris, 252 So. 3d at 1154 (quoting Patry v. Capps, 633 So. 2d 9, 13 (Fla.
1994)).
When interpreting a statute, we follow the supremacy-of-the-text principle.
See Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020). This
principle dictates that “[t]he words of a governing text are of paramount concern,
and what they convey, in their context, is what the text means.” Id. (quoting Antonin
Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)).
Chapter 766 does not define “specialty,” but we can ascertain its meaning by
considering its plain and ordinary public meaning at the time of enactment. In doing
so, we must consider the term in context, “exhaust[ing] all the textual and structural
clues that bear on the meaning of a disputed text.” See Conage v. United States, 346
So. 3d 594, 598 (Fla. 2022) (internal quotations marks omitted) (quoting Alachua
Cnty. v. Watson, 333 So. 3d 162, 169 (Fla. 2022)). Typically, the best evidence of
what a contested term meant when enacted comes from a dictionary published close
to that time. Id. at 599.
5 The Legislature first enacted the “same specialty” requirement in 2013. See
§ 766.102(5), Fla. Stat. (2013).
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SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D23-1413 Lower Tribunal No. 2021-CA-009876-O _____________________________
PHENGSANITH PRADAXAY,
Appellant, v.
JAMES ERASMUS KENDRICK, IV, M.D., FLORIDA HOSPITAL MEDICAL GROUP, INC., d/b/a ADVENTHEALTH MEDICAL GROUP GYN ONCOLOGY AT ORLANDO, and ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a ADVENT HEALTH ORLANDO, Appellees. _____________________________
Appeal from the Circuit Court for Orange County. Jeffrey L. Ashton, Judge.
May 17, 2024
TRAVER, C.J.
Phengsanith Pradaxay appeals the trial court’s dismissal of her complaint
against, among others, James Erasmus Kendrick, IV, M.D., with prejudice for failing
to comply with certain statutory presuit requirements applicable to medical
malpractice actions under chapter 766, Florida Statutes. 1 We have jurisdiction over
1 This case was transferred from the Fifth District Court of Appeal to this Court on January 1, 2023. this final order. 2 See Fla. R. App. P. 9.030(b)(1)(A). Because Pradaxay complied
with her presuit obligation to submit a corroborating expert affidavit by a doctor with
the same specialty, we reverse.
Before filing suit for medical malpractice, a prospective plaintiff must conduct
a statutory presuit investigation. This investigation determines whether the
prospective plaintiff has “reasonable grounds to believe” that a prospective
defendant provided negligent care or treatment that caused injury to him or her. See
§ 766.203(2)(a)–(b), Fla. Stat. (2021). As part of this process, a prospective plaintiff
must submit a “verified written medical expert opinion from a medical expert . . .,
which statement shall corroborate reasonable grounds to support the claim of
medical negligence.” Id. § 766.203(2).
The Legislature defines “medical expert” as “a person duly and regularly
engaged in the practice of his or her profession who holds a health care professional
degree from a university or college and who meets the requirements of an expert
witness as set forth in s. 766.102.” § 766.202(6), Fla. Stat. (2021). Section
766.102(5) outlines several qualifications an expert witness must have before he can
testify against a specialist about the “prevailing professional standard of care.” §
766.102(5)(a), Fla. Stat. (2021). The qualification relevant in this case requires the
2 The trial court dismissed this matter with prejudice because the statute of limitations had run on Pradaxay’s causes of action, and she could not amend her statutory presuit compliance. 2 expert witness to “[s]pecialize in the same specialty as the health care provider
against whom or on whose behalf the testimony is offered.” § 766.102(5)(a)1., Fla.
Stat. (2021). The trial court determines whether the prospective plaintiff complied
with her statutory presuit requirements, and if she did not, it must dismiss her case.
See § 766.206(2), Fla. Stat. (2021).
Dr. Kendrick is a gynecological oncologist who is board certified in obstetrics
and gynecology (“OB-GYN”). Dr. Kendrick attested that gynecological oncologists
complete an additional three-to-four-year fellowship after their four-year OB-GYN
residency. This training includes basic science research, specialized surgical
training, and the treatment and management of gynecological cancers.
Dr. Kendrick saw Pradaxay after she had suffered through years of excessive
bleeding. When medication and an ablation procedure failed to resolve the issue,
Dr. Kendrick surgically removed Pradaxay’s uterus, cervix, ovaries, and fallopian
tubes. The bleeding did not stop, and Pradaxay ultimately initiated a presuit medical
malpractice investigation against Dr. Kendrick.
As part of this investigation, Pradaxay obtained an affidavit from Martin
Gubernick, M.D. Like Dr. Kendrick, Dr. Gubernick is board certified in OB-GYN.
Unlike Dr. Kendrick, Dr. Gubernick is not a gynecological oncologist. Dr.
Gubernick attested that Dr. Kendrick performed a medically unnecessary surgery
that negligently injured Pradaxay.
3 After Pradaxay filed this lawsuit, Dr. Kendrick moved to dismiss it. He
contended Pradaxay failed to comply with her presuit obligations because she had
not procured someone from his “same specialty” to support her claims. The trial
court conducted an evidentiary hearing. Pradaxay argued that gynecological
oncology was a sub-specialty of gynecology, and because Dr. Gubernick had the
same specialty of gynecology, she complied with section 766.102(5)(a)1. She
highlighted section 766.102(5)’s failure to use “sub-specialty” as support for her
position. Pradaxay also filed Dr. Kendrick’s deposition testimony to further her
argument. In it, he attested gynecological oncology was a sub-specialty of
gynecology. He also testified that he viewed Pradaxay’s likelihood of having cancer
as “low” before he operated, and that the operation disclosed no cancer.
The trial court granted Dr. Kendrick’s motion. It reasoned that “specialty”
meant “somebody with same educational background [who] works in the same
area.” And because gynecological oncology and gynecology required “different
education, different training, [and] different certifications,” dismissal was required.
Finally, the trial court found the term “sub-specialty” had no independent legal
significance, and the Legislature did not mean to distinguish or exclude it from the
statutory reference to “specialty.”
We review de novo whether Dr. Gubernick’s qualifications satisfied
Pradaxay’s statutory presuit obligations. See Morris v. Muniz, 252 So. 3d 1143,
4 1155–56 (Fla. 2018); Riggenbach v. Rhodes, 267 So. 3d 551, 554 (Fla. 5th DCA
2019). The purpose of the presuit process is “the prompt resolution of medical
negligence claims.” § 766.201(2), Fla. Stat. (2021). The Florida Supreme Court
directs us to construe these statutory obligations “in a manner that favors access to
courts.” Morris, 252 So. 3d at 1154 (quoting Patry v. Capps, 633 So. 2d 9, 13 (Fla.
1994)).
When interpreting a statute, we follow the supremacy-of-the-text principle.
See Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020). This
principle dictates that “[t]he words of a governing text are of paramount concern,
and what they convey, in their context, is what the text means.” Id. (quoting Antonin
Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 56 (2012)).
Chapter 766 does not define “specialty,” but we can ascertain its meaning by
considering its plain and ordinary public meaning at the time of enactment. In doing
so, we must consider the term in context, “exhaust[ing] all the textual and structural
clues that bear on the meaning of a disputed text.” See Conage v. United States, 346
So. 3d 594, 598 (Fla. 2022) (internal quotations marks omitted) (quoting Alachua
Cnty. v. Watson, 333 So. 3d 162, 169 (Fla. 2022)). Typically, the best evidence of
what a contested term meant when enacted comes from a dictionary published close
to that time. Id. at 599.
5 The Legislature first enacted the “same specialty” requirement in 2013. See
§ 766.102(5), Fla. Stat. (2013). At the time of section 766.102(5)’s enactment,
“specialty” was commonly understood to mean “[a] branch of medicine or surgery,
such as cardiology or neurosurgery, in which a physician specializes; the field or
practice of a specialist.” Specialty, American Heritage Dictionary (2011 ed.). This
term’s meaning has not since changed. See Specialty, American Heritage Dictionary
(2022 ed.). The 2011 definition of “specialty” is noteworthy because it references
the medical specialties of cardiology and neurosurgery. It does not, for example,
reference the sub-specialties of cardio-oncology or neuro-oncology. Indeed, the
evidentiary record does not support gynecological oncology’s classification as its
own “branch of medicine or surgery.” By Dr. Kendrick’s own admission, it is a part
of the medical branch of gynecology.
“Sub-,” in this context, means a “subdivision,” which in turns means “a
subdivided part.” Sub-, American Heritage Dictionary (2011 ed.); Subdivision,
American Heritage Dictionary (2011 ed.). A “sub-specialty” is therefore a more
limited form of a “specialty,” and the terms are readily distinguishable.
Contextually, section 766.102(5)’s reference to “the same specialty” is part of
a set of qualifications necessary before an expert witness can testify about the
prevailing professional standard of care in medical malpractice actions. See §§
766.202(6), 766.203(2). Nowhere in the operative section does it state, or even
6 suggest, that an expert witness offering this testimony have an identical educational
background and work history to a prospective defendant. If the Legislature wished
to require this higher qualification level, it knows how to do so.
Of course, a medical expert witness will not pass muster in a presuit
compliance setting if the witness specializes in a branch of medicine or surgery that
simply provides “similar treatment to the same areas of the body.” See Riggenbach,
267 So. 3d at 555 (plastic surgeon could not offer medical expert opinion against
orthopedic surgeon); Clare v. Lynch, 220 So. 3d 1258, 1260–62 (Fla. 2d DCA 2017)
(podiatrist could not offer medical expert opinion against board-certified orthopedic
surgeon). But this is not the case here. Dr. Kendrick and Dr. Gubernick specialize
in the same branch of medicine, as illustrated by their identical OB-GYN board
certifications.
For these reasons, the trial court dismissed Pradaxay’s action prematurely.
We reverse this decision and remand for further proceedings.
REVERSED and REMANDED.
NARDELLA and BROWNLEE, JJ., concur.
Andres I. Beregovich, of The Beregovich Law Firm, P.A. Orlando, for Appellant.
Christian P. Trowbridge, J. Charles Ingram, and Dinelia Concepcion, of Estes, Ingram, Foels & Gibbs, P.A., Maitland, for Appellees.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED 7