Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT FLORIDA HEALTH SCIENCES CENTER, INC. d/b/a TAMPA GENERAL HOSPITAL, Petitioner, v. AUDREY JACKMAN and KEITH JACKMAN; UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES; TAMPA BAY HEARING & BALANCE CENTER, P.L.; and KYLE ALLEN, M.D., individually, Respondents. No. 2D22-1158 March 10, 2023 Petition for Writ of Certiorari from the Circuit Court for Hillsborough County; Melissa M. Polo, Judge. Mindy McLaughlin and Carissa Wheeler Brumby of Beytin, McLaughlin, McLaughlin, O'Hara & Bocchino, P.A., Tampa; and Dinah S. Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Petitioner. Martez Gordon of The Gordon Firm, LLC, Zephyrhills; and Zedrick Barber, II of The Barber Firm, LLC, Palm Beach Gardens, for Respondents Audrey Jackman and Keith Jackman. No appearance for Respondents University of South Florida Board of Trustees, Tampa Bay Hearing and Balance Center, P.L., and Kyle Allen, M.D. PER CURIAM. Florida Health Sciences Center, Inc. d/b/a Tampa General Hospital (TGH) seeks certiorari review of an order denying its motion to dismiss two counts of a multicount complaint for medical negligence. TGH contends that respondents Audrey and Keith Jackman did not satisfy the presuit requirements set forth in section 766.203(2), Florida Statutes (2020). We agree. We grant the petition for writ of certiorari and quash the order denying TGH's motion to dismiss. Background A few days after undergoing a surgical procedure at TGH in August of 2018, Mrs. Jackman experienced postoperative complications. She reported her symptoms to her surgeon, who scheduled Mrs. Jackman for an outpatient follow-up and ordered several imaging studies. Mrs. Jackman ultimately was readmitted to TGH, where she received intravenous antibiotics and underwent a lumbar puncture. Subsequent imaging studies revealed that Mrs. Jackman had developed a postoperative brain abscess, which required her to undergo two additional surgeries. In August 2020, the Jackmans sent TGH a notice of intent to initiate medical negligence litigation under chapter 766, alleging that TGH breached the standard of care in several ways. The Jackmans contended that TGH failed to obtain appropriate imaging studies that would have identified the brain abscess sooner and resulted in earlier antibiotic treatment. They also alleged that TGH negligently performed the lumbar puncture. And, with respect to the initial surgery, the Jackmans contended that TGH failed to properly sterilize surgical instruments, materials, and the surgical site. The notice did not include 2 any expert affidavits to corroborate the Jackmans' allegations.1 The Jackmans later supplemented their notice with affidavits from three experts—neurosurgeon Jeffrey Oppenheimer, M.D., neurologist Richard Rubenstein, M.D., and otolaryngologist Wayne Shaia, M.D.2 Dr. Oppenheimer opined that there were reasonable grounds to support a medical negligence claim against TGH, and that TGH breached the standard of care by (1) failing to properly evaluate, recognize, and diagnose the abscess Mrs. Jackman developed after her first surgery; (2) failing to promptly refer Mrs. Jackman for appropriate imaging studies after she developed postoperative symptoms; and (3) failing to promptly refer Mrs. Jackman for a neurological surgical consultation. Dr. Oppenheimer's affidavit did not mention the lumbar puncture, nor did it mention any issues concerning unsterile surgical instruments. TGH disputed the Jackmans' allegations and the opinions of their presuit experts. TGH also informed the Jackmans on several occasions that, in TGH's view, the Jackmans had not sufficiently corroborated their claims against TGH. The Jackmans relied on the expert affidavits already provided, and TGH denied the claim. The Jackmans then filed a complaint against TGH and others, 1 The Jackmans' position at that time was that TGH had waived the corroboration requirement by allegedly failing to respond to the Jackmans' request for medical records. See § 766.204(2) ("Failure to provide copies of [any medical record relevant to any litigation of a medical negligence claim] . . . shall waive the requirement of written medical corroboration by the requesting party."). The parties resolved this issue presuit so it is not material to this appeal. 2 Because the trial court relied exclusively on Dr. Oppenheimer's affidavit, we confine our discussion to his qualifications and the sufficiency of his affidavit. We express no opinion as to the qualifications of Drs. Rubenstein and Shaia or the sufficiency of their affidavits. 3 which they amended twice. In count two of the Jackmans' second amended complaint, they asserted a claim for negligence against TGH. The Jackmans alleged that cultures in samples extracted during Mrs. Jackman's second and third surgeries demonstrated that three forms of bacteria were present. On this basis, the Jackmans alleged that TGH— through scrub technicians who were agents or employees of TGH— breached the standard of care by failing to use sterile medical instruments when performing Mrs. Jackman's surgeries. In count three of their second amended complaint, the Jackmans asserted a claim for vicarious liability against TGH. This claim was based on allegations that an unidentified "Anesthesiologist or Physician Assistant" at TGH negligently performed the lumbar puncture on Mrs. Jackman eight days after her initial surgery, and that this lumbar puncture resulted in injury. TGH moved to dismiss counts two and three on the basis that the Jackmans did not corroborate these claims with presuit expert affidavits as chapter 766 requires. The trial court denied TGH's motion to dismiss, finding that the Jackmans' presuit notice in conjunction with Dr. Oppenheimer's affidavit were sufficient to put TGH on notice of the claims in counts two and three. The trial court further found that Dr. Oppenheimer's affidavit sufficiently corroborated counts two and three. TGH timely filed its petition for certiorari. We have jurisdiction. See Fla. R. App. P. 9.030(b)(2)(A); see also Clare v. Lynch, 220 So. 3d 1258, 1260 (Fla. 2d DCA 2017) ("Where disputes arise regarding compliance with chapter 766's requirements, '[c]ertiorari review is proper to review the denial of a motion to dismiss.' " (alteration in original) (quoting Shands Teaching Hosp. & Clinics, Inc. v. Est. of Lawson ex rel. Lawson, 175 So. 3d 327, 329 (Fla. 1st DCA 2015))). But see Univ. of Fla. 4 Bd. of Trs. v. Carmody, 331 So. 3d 236, 239 (Fla. 1st DCA 2021) (certifying conflict with Clare), reh'g denied (Dec. 16, 2021), review granted, No. SC22-68, 2022 WL 3082574, at *1 (Fla. May 25, 2022). Certiorari Review and the Essential Requirements of Law "To be entitled to certiorari review, the petitioner[] 'must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.' " Sabra Health Care Holdings III, LLC v. Est. of DeSantis ex rel. DeSantis, 331 So. 3d 1258, 1260 (Fla. 2d DCA 2022) (quoting E. Bay NC, LLC v. Reddish, 306 So. 3d 1225, 1226 (Fla. 2d DCA 2020)). "We examine prongs two and three first to determine our certiorari jurisdiction." Id. (quoting Cap. One, N.A. v. Forbes, 34 So. 3d 209, 212 (Fla. 2d DCA 2010)). "Certainly, where a plaintiff in a medical malpractice action has failed to satisfy the presuit notice requirements set forth in section 766.203(2), the defendant in such an action would suffer a material injury that could not be remedied in a postjudgment appeal if the action was allowed to proceed." Rell v. McCulla, 101 So. 3d 878, 880–81 (Fla. 2d DCA 2012) (citing Corbo v. Garcia, 949 So. 2d 366, 368 (Fla. 2d DCA 2007)). Our court has expanded the scope of certiorari jurisdiction to address not only a plaintiff's facial compliance with section 766.203(2), see, e.g., Andary v. Walsh, 342 So. 3d 749, 752 (Fla. 2d DCA 2022) (issuing certiorari where corroborating expert's presuit letter was unverified); Rell, 101 So. 3d at 883 (granting certiorari where plaintiff's presuit affidavit failed to include any averment that any medical negligence had been committed), but also the quality of a plaintiff's compliance with the statute's strictures, see Clare, 220 So. 3d at 1260 (holding that the circuit court's acceptance of a board certified 5 podiatrist's affidavit for alleged medical malpractice by an orthopedic surgeon regarding a patient's broken toe "effectively excuse[d] Lynch from the presuit requirements of chapter 766," warranting certiorari relief). As a panel, we are bound to follow Clare's precedent. Cf. Cent. Bank of the S. v. Seppala & Aho Constr. Co., 658 So. 2d 1248, 1249 (Fla. 4th DCA 1995) ("Although the members of this panel might have agreed with the fifth district on this issue, we are bound to follow the precedents of this court.").3 Since, under Clare, we have jurisdiction to consider the arguments raised in TGH's petition, we now turn our analysis to prong one of certiorari—whether the trial court departed from the essential requirements of law in denying TGH's motion to dismiss. Chapter 766 "outlines an extensive presuit procedure applicable to all actions for medical malpractice." Clare, 220 So. 3d at 1260. Relevant to this appeal, section 766.203(2) requires a medical negligence claimant to provide an affidavit from a medical expert that corroborates reasonable grounds for the claim. It states: Prior to issuing notification of intent to initiate medical negligence litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that: (a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and (b) Such negligence resulted in injury to the claimant. Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant's 3 The First District deemed Clare's exercise of jurisdiction a bridge too far for certiorari, see Carmody, 331 So. 3d at 239, and certified conflict with our decision. The Florida Supreme Court accepted jurisdiction of Carmody on May 25, 2022. See Univ. of Fla. Bd. of Trustees v. Carmody, No. SC22-68, 2022 WL 3082574, at *1 (Fla. May 25, 2022). 6 submission of a verified written medical expert opinion . . . which statement shall corroborate reasonable grounds to support the claim of medical negligence. § 766.203(2). But not any medical expert will do. The expert must meet the definition of "medical expert" in section 766.202(6), which, in turn, means "a person . . . who meets the requirements of an expert witness as set forth in [section] 766.102." These requirements differ based on the health care provider against whom the expert opines. For example, an expert offering testimony against a specialist must specialize in the "same specialty." § 766.102(5)(a); see also Clare, 220 So. 3d at 1260 ("[I]f the intended medical defendant is a specialist, the corroborating affidavit must come from a provider who specializes in the same specialty."). If the expert's testimony relates to medical support staff, the expert must have knowledge of the standard of care applicable to such medical support staff through active clinical practice or instruction. See § 766.102(6). These and other presuit requirements "must be 'interpreted liberally so as not to unduly restrict a Florida citizen's constitutionally guaranteed access to the courts.' " Morris v. Muniz, 252 So. 3d 1143, 1151 (Fla. 2018) (quoting Kukral v. Mekras, 679 So. 2d 278, 284 (Fla. 1996)). However, these requirements are "more than mere technicalities" and compliance with them is a condition precedent to filing an action for medical negligence. Correa v. Robertson, 693 So. 2d 619, 621 (Fla. 2d DCA 1997). Departure from the Essential Requirements of Law The trial court departed from the essential requirements of law in denying TGH's motion to dismiss. It found that Dr. Oppenheimer's affidavit corroborated counts two and three, in which the Jackmans 7 alleged that scrub technicians and an anesthesiologist or a physician assistant were negligent and that their negligence resulted in injury to Mrs. Jackman. But nothing in Dr. Oppenheimer's affidavit identifies any deficiencies in the care these individuals provided or any injury resulting from such care. With respect to count two, the Jackmans contend that scrub technicians at TGH provided unsterile equipment to the surgeons who performed Mrs. Jackman's surgeries. But nowhere in his five-page affidavit does Dr. Oppenheimer mention a scrub technician, unsterile equipment, or anything remotely approaching these topics. In fact, Dr. Oppenheimer does not identify any issue with the surgeries at all. His opinions relate only to alleged delays and failures associated with diagnosing Mrs. Jackman's postoperative condition, which is not the care upon which the Jackmans base count two.4 The Jackmans argue that Dr. Oppenheimer could not corroborate the allegations in count two because the scrub technicians' identities and roles are not in the medical records. But the Jackmans concede that Dr. Oppenheimer received records related to the bacterial cultures that form the basis of their unsterile surgical instruments claim. Nothing in Dr. Oppenheimer's affidavit suggests that he evaluated the cultures or reasonably investigated the Jackmans' allegation that the surgical instruments Mrs. Jackman's surgeons used were unsterile and caused bacterial infections. The Jackmans alternatively contend that count two qualifies as a 4 Because we conclude that Dr. Oppenheimer's affidavit does not corroborate count two, we express no opinion on whether Dr. Oppenheimer was qualified to opine on the standard of care applicable to scrub technicians. 8 simple negligence claim for which no expert corroboration was required. We disagree. The Jackmans' second amended complaint asserts at the outset that the "action is brought pursuant to [c]hapter 766, Florida Statutes, for medical negligence," and this allegation is incorporated to count two. Count two likewise alleges that TGH breached its duty "to render medical care in accordance with the prevailing standards of care for similar health care providers." This is plainly a claim for medical negligence for which presuit corroboration was required. See J.B. v. Sacred Heart Hosp. of Pensacola, 635 So. 2d 945, 949 (Fla. 1994) ("[C]hapter 766's notice and presuit screening requirements apply to claims that 'aris[e] out of the rendering of, or the failure to render, medical care or services.' " (second alteration in original) (quoting § 766.106(1)(a))); see also S. Baptist Hosp. of Fla., Inc. v. Ashe, 948 So. 2d 889, 890 (Fla. 1st DCA 2007) ("A court must . . . look to the allegations made in the complaint when determining whether a suit raises an issue of ordinary negligence or medical malpractice."). And Dr. Oppenheimer's affidavit did not provide the requisite presuit corroboration for count two. The same is true for count three, which is based on allegations that an unnamed anesthesiologist or physician assistant at TGH negligently performed Mrs. Jackman's lumbar puncture. The term "lumbar puncture" appears nowhere in Dr. Oppenheimer's affidavit, and the affidavit mentions no deficiencies in the care the anesthesiologist or physician assistant provided. In other words, there is no indication that Dr. Oppenheimer investigated, much less corroborated, the Jackmans' allegation that the lumbar puncture was negligently performed and resulted in injury to Mrs. Jackman. Moreover, because Dr. Oppenheimer specializes in neurosurgery, not anesthesiology, he isn't statutorily authorized to opine on the prevailing standard of care for 9 anesthesiologists. See § 766.102(5)(a); see also Clare, 220 So. 3d at 1260–61 (holding that orthopedic surgeon could not corroborate medical negligence claim against podiatrist). This court has consistently held that denying a motion to dismiss where presuit expert corroboration is insufficient is a departure from the essential requirements of law. See Univ. of S. Fla. Bd. of Trs. v. Mann, 159 So. 3d 283, 284 (Fla. 2d DCA 2015) ("Because the affidavit is plainly insufficient as a statement to corroborate reasonable grounds to support a claim of medical malpractice as to the nurses and supervisors, the trial court departed from the essential requirements of law in denying Tampa General's motion to dismiss count I of the amended complaint."); Rell, 101 So. 3d at 883 ("Because the requirements of section 766.203(2) were not met, the trial court departed from the essential requirements of the law when it failed to grant Dr. Rell and Coastal's motion to dismiss."); Bonati v. Allen, 911 So. 2d 285, 288 (Fla. 2d DCA 2005) ("Because [the expert's] affidavit does not serve its purpose of corroborating that Dr. Bonati acted negligently toward Allen, the presuit investigation requirement has not been satisfied . . . [and] the trial court departed from the essential requirements of law in denying Dr. Bonati's motion to dismiss."). Because Dr. Oppenheimer's affidavit does not corroborate reasonable grounds to support the Jackmans' medical negligence claims in counts two and three, the trial court departed from the essential requirements of law by denying TGH's motion to dismiss these counts. Accordingly, we grant TGH's petition for writ of certiorari, quash the order denying TGH's motion, and remand for further proceedings. We also certify conflict with Carmody to the extent it holds that appellate courts lack certiorari jurisdiction to review non-procedural disputes 10 involving corroborating experts under chapter 766. Petition granted; order quashed; conflict certified. LUCAS, J., Concurs. SMITH, J., Concurs specially with an opinion. LABRIT, J., Concurs specially with an opinion. SMITH, Judge, Specially concurring. I concur in the decision to certify conflict, and I concur in the result of this case but only because we are bound by our prior precedent in Clare, 220 So. 3d 1259, review pending, No. SC22-68. See Lee v. Est. of Payne, 148 So. 3d 776, 781 (Fla. 2d DCA 2013) ("We are constrained by precedent unless changed by the supreme court."); Gulf Am. Fire & Cas. Co. v. Singleton, 265 So. 2d 720, 721 (Fla. 2d DCA 1972) (acknowledging "stare decisis demands that we adhere to our ruling on identical facts" in prior cases). However, I disagree with Clare's implicit holding that a court of appeal has certiorari jurisdiction to review whether a specific doctor qualifies as an expert for presuit notice requirements under chapter 766. I agree with our sister court in Carmody that we are bound by the supreme court's holding in Williams v. Oken, 62 So. 3d 1129, 1137 (Fla. 2011), which expressly states that "[w]hether the trial court erred in finding that [a doctor] was a qualified expert under the statute is an issue of mere legal error that is insufficient to merit certiorari review." Accordingly, I believe this petition should have been dismissed for lack of certiorari jurisdiction. Id. LABRIT, Judge, Specially concurring. I concur in the majority opinion and in the decision to certify conflict with Carmody because we are bound by this court's decision in Clare, 220 So. 3d at 1259–60, review pending, No. SC22-68. If we were 11 writing on a clean slate, I would conclude that we lack jurisdiction for the reasons our sister court explained in Carmody when it certified conflict with Clare. See Carmody, 331 So. 3d at 238–39. Opinion subject to revision prior to official publication. 12