MICHAEL CLARE, M.D., and FLORIDA ORTHOPAEDIC INSTITUTE, Petitioners,
MARIA JOHNSON LYNCH, Respondent.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
for Writ of Certiorari to the Circuit Court for Hillsborough
County; Claudia Rickert Isom, Judge.
S. Paikoff of Macfarlane Ferguson and McMullen, Clearwater;
and Stephen H. Sears of Macfarlane, Ferguson & McMullen,
Tampa (withdrew after briefing); Mark E. McLaughlin of
Beytin, McLaughlin, McLaughlin, O'Hara, Bocchino &
Bolin, Tampa (substituted as counsel of record), for
Johnson Lynch, pro se.
VILLANTI, Chief Judge.
Michael Clare, M.D., and Florida Orthopaedic Institute
(collectively "FOI") seek a writ of certiorari
directed to the trial court's order that granted a motion
for rehearing filed by respondent Maria Johnson Lynch and
reinstated her medical malpractice complaint against FOI.
Because the expert affidavit submitted by Lynch did not
satisfy the requirements of section 766.102(5)(a), Florida
Statutes (2015), we must grant the petition and quash the
trial court's order reinstating the complaint.
became a patient of FOI after she broke her toe. She
underwent a variety of treatments, including surgery, which
failed to fully resolve the problems. Lynch subsequently
obtained a second opinion, during which she was told that the
surgery performed by Dr. Clare was unnecessary and not
indicated for injuries such as hers. She then initiated
presuit proceedings with FOI. In support of her claim, Lynch
submitted, as the requisite "[c]orroboration of
reasonable grounds to initiate medical negligence
litigation" under section 766.203(2), the written
affidavit of Dr. Benjamin Overley, D.P.M., who is a
board-certified podiatrist. FOI challenged this affidavit,
asserting that it did not qualify as a proper corroborating
affidavit because Dr. Clare is a board-certified orthopedic
surgeon-not a podiatrist. Lynch did not respond to this
objection during the presuit period.
end of the presuit period, FOI denied liability, and Lynch
filed suit. FOI then moved to dismiss, arguing that Lynch did
not properly comply with the presuit investigation
requirements because she did not submit an expert affidavit
that complied with the statutory presuit requirements. The
trial court initially agreed and dismissed the complaint;
however, on rehearing, the trial court essentially changed
its mind, granted rehearing, and reinstated the complaint.
FOI then filed this petition for writ of certiorari.
initial matter, we have certiorari jurisdiction to review
this type of order. As the First District has explained:
Certiorari review of the denial of a motion to dismiss is
ordinarily unavailable. Baptist Med. Ctr. of Beaches,
Inc. v. Rhodin, 40 So.3d 112, 114-15 (Fla. 1st DCA 2010)
(citing Martin-Johnson, Inc. v. Savage, 509 So.2d
1097, 1099 (Fla. 1987)). But an exception applies to cases,
like this one, where a defendant asserts that an order
erroneously excuses a plaintiff from complying with chapter
766's presuit requirements. Id. Chapter 766
requires potential plaintiffs to investigate the merits of a
claim and provide notice of intent to litigate before filing
suit. Id. at 115. Where disputes arise regarding
compliance with chapter 766's requirements,
"[c]ertiorari review is proper to review the denial of a
motion to dismiss." Goldfarb v. Urciuoli, 858
So.2d 397, 398 (Fla. 1st DCA 2003); see also Rhodin,
40 So.3d at 115; S. Baptist Hosp. of Fla., Inc. v.
Ashe, 948 So.2d 889, 890 (Fla. 1st DCA 2007).
Shands Teaching Hosp. & Clinics, Inc. v. Estate of
Lawson ex rel. Lawson, 175 So.3d 327, 329 (Fla. 1st DCA
2015) (en banc); see also Rell v. McCulla, 101 So.3d
878, 880-81 (Fla. 2d DCA 2012). Here, FOI asserts that the
trial court's ruling departs from the essential
requirements of the law because it operates to effectively
excuse Lynch from the presuit requirements of chapter 766.
Therefore, we may properly review the trial court's
ruling by certiorari.
to the merits, we note that chapter 766 outlines an extensive
presuit procedure applicable to all actions for medical
malpractice. Section 766.203 requires the claimant to conduct
a presuit investigation to determine whether there are
reasonable grounds to initiate a medical negligence action.
As part of that presuit investigation, section 766.203(2)
requires that the claimant provide "[c]orroboration of
reasonable grounds to initiate medical negligence litigation,
" including "submission of a verified written
medical expert opinion from a medical expert as defined in s.
766.202(6)." Section 766.202(6) defines a "medical
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.
(Emphasis added.) In turn, section 766.102 sets forth the
requirements for an expert ...