The dispute over who can serve as an expert under the 2003 version of Chapter 766 pre-suit requirements is, by itself, an opinion which covers new ground in Florida law.
While Florida court watchers have experienced an overdose of Amendment 7 opinions, we can’t think of any opinions which have significantly interpreted Chapter 766 (Florida’s medical malpractice statute) since it was amended in 2003. Then, in the heat of appellate battle, the issue arises about the appropriateness of appellate judges citing internet sources in opinions.
Since, on this site, we embrace medical cases and internet issues, this case is right up our alley. Will this 15-page opinion in Keith Robinson Oken v. Mayo Clinic of Florida get traction to travel to the Florida Supreme Court?
First, let’s dig into the pre-suit issue. Prior to 2003, a pre-suit expert who signs the required corroborating medical affidavit must have “training, experience and knowledge” similar to the prospective defendant doctor. Since 2003, Florida Statute 766.102(5) requires the expert to specialize in the same or similar specialty that includes the evaluation, diagnosis or treatment of the medical condition at issue.
Notably, “similar specialty” in the current statute is not defined nor interpreted. Here, the defendant doctor is a board certified cardiologist. The plaintiff had used a family/ER doctor (who proclaimed experience in evaluating, diagnosising and treating heart attacks) as an expert. The defendant moved for dismissal under F.S. 766.202(6), claiming the standards for the expert had not been met.
The majority held that it was the claimant’s (plaintiff’s) burden to demonstrate by facts, not conclusions in the expert affidavit, that the expert met the statutory requirements. In short, statements such as “expert’s practice is a similar specialty” apparently is insufficient. After some discussion and reference to internet medical citations, the majority held that family/ER practice is not the same or sufficiently similar to a board certified cardiologist and that public policy behind the 2003 amendment were not met.
Second, let’s turn to the internet citations. The majority turned to the internet for citations to the American Board of Family Medicine, American Board of Internal Medicine, and the American Board of Emergency Medicine for its discussion of whether the expert was a “similar specialty.”
Upon being challenged for use of these citations by the dissent, the majority shored up its position by reporting that (1) these cites were raised without objection in the Reply Brief and (2) the use of “generally-known knowledge” which is capable of accurate and ready determination from sources whose accuracy cannot be reasonably questioned does not present concerns.
The dissent complained that the majority reliance on internet cites for the recitation of certification criteria for cardiology was never presented below and was “injected at the appellate level.” Interesting references were made to the proposed revision to the ABA Model Code of Conduct 2.09 which prohibits a judge from making independent investigation through various means including “electronic access.” The dissent further complains that there is no “check” on proficiency and objectivity of the judge’s or JA’s research. The majority fired back, in a footnote, that even without the citations, the outcome would be the same.
