Although the Florida Rule of Appellate Procedure 9.130 outlines a list of nonfinal orders which are subject to appeal, the Florida Supreme Court has decided the rule does not identify all nonfinal orders that are appropriate for interlocutory review.
On its own motion, the Court amended Florida Rule of Appellate Procedure 9.130(a)(3) to include denying a motion to dismiss based on the qualifications of a corroborating witness under Section 766.102(5)-(9) of the Florida Statutes.
“The Medical Malpractice Act has changed the law such that an interlocutory remedy for parties facing claims that fail to satisfy its pre-suit requirements is warranted,” said William W. Large, president of the Florida Justice Reform Institute (FJRI), a lobbying organization in Tallahassee.
The rule change is effective immediately however the Court issued a companion opinion and is accepting public commentary until Sept. 19.
“The Court pointedly did not provide for an appeal of an order granting such a motion, as it would be an order dismissing the case with leave to amend,” Large told the Florida Record.
As previously reported in Florida Politics, a medical malpractice claim can only be launched after a litigant meets pre-suit requirements, such as filing a written opinion from a medical expert that corroborates the alleged malpractice. Serving as a medical expert is dependent on the specialty of the physician being sued.
However, in the University of Florida Board of Trustees v. Laurie Carmody, an exception to the Medical Malpractice Act’s pre-suit requirement was created.
“The Court distinguished the exception as only applicable where there is an issue with the procedural aspects of the pre-suit requirements,” Large said.
For example, a district court can grant a Petition for a Writ of Certiorari review to verify that the plaintiff submitted the corroborating expert affidavit.
“The Florida Supreme Court held that a trial court order denying a motion to dismiss a complaint due to the plaintiff’s failure to present a qualified expert under the Medical Malpractice Act was not subject to interlocutory certiorari review,” Large added. “The Court observed that Certiorari remains an 'extraordinary remedy that is not meant to be a substitute for an appeal and is available in only very limited circumstance,”
The case came about after Carmody developed complications from a cervical disc fusion that Dr. William Friedman, a neurosurgeon, had performed on her at Shands Teaching Hospital and Clinics. Carmody sued Shands and the University of Florida (UF) for medical malpractice allegedly caused by Dr. Friedman and a nurse.
"Shands and UF cannot show that the trial court departed from the essential requirements of the law by denying their motion to dismiss," the Court's July 6 ruling states.