final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Karen Cole,
Brandon S. Vesely of Albertelli & Whitworth, Tampa;
Wesley T. Straw and Matthew D. Emerson of Emerson Straw PL,
St. Petersburg, for Appellants.
Michael R. D'Lugo and Richard E. Ramsey of Wicker, Smith,
O'Hara, McCoy & Ford, P.A., Orlando, for Appellee
Lenka Champion, M.D.
Rodriguez and her husband, David Rodriguez, appeal an order
dismissing with prejudice their medical malpractice complaint
as to Lenka Champion, M.D. Dr. Champion was one of two
defendants sued by the Rodriguezes after Mrs. Rodriguez
experienced an infection following eye surgery. Because the
presuit notice requirements were not met as to Dr. Champion,
the trial court correctly dismissed the complaint as to Dr.
Champion. We therefore affirm.
April 23, 2013, Mrs. Rodriguez underwent a blepharoplasty on
her upper and lower eyelids, a procedure to repair droopy
eyelids and to remove excess tissue around the eyes. The
surgery was performed by Ernst Nicolitz, M.D., an
ophthalmologist. Following the surgery, Mrs. Rodriguez
developed an infection in her left eye. Three post-operative
examinations of Mrs. Rodriguez were performed by Dr.
Champion, also an ophthalmologist, who was employed by the
same professional association as Dr. Nicolitz. According to
Mrs. Rodriguez, the infection left her with serious visual
impairments, dizziness, continued risk of infection, and an
asymmetrical facial appearance.
letter dated Jan. 13, 2014, Dr. Nicolitz was advised by Mr.
and Mrs. Rodriguez of their intent to initiate litigation for
medical malpractice. Attached to the letter was the affidavit
of Eliot B. Siegel, M.D., whose stated specialty was
ophthalmology. The letter indicated that no other defendants
were known at the time, and Dr. Champion was identified in
the letter as one of the known medical treatment providers to
by a complaint filed May 19, 2014, Mrs. Rodriguez sued Dr.
Nicolitz, but not his professional association (Ernest
Nicolitz, M.D., P.A., d/b/a Nicolitz Eye Consultants), for
medical negligence. A loss of consortium claim was alleged in
the complaint against Dr. Nicolitz by Mr. Rodriguez.
letter dated June 15, 2015, Dr. Champion was for the first
time advised of the Rodriguezes' intent to initiate
litigation against her for medical malpractice. Dr. Champion
was employed by Nicolitz Eye Consultants, and as noted, she
had conducted some post-operative examinations of Mrs.
Rodriguez. Unlike Dr. Nicolitz however, Dr. Champion was not
an officer, director, or shareholder of Nicolitz Eye
Consultants. Attached to the notice of intent was an
affidavit of Richard K. Sall, M.D., whose medical specialty
was listed as "Infectious Diseases."
the Rodriguezes sought leave to amend their complaint to add
Dr. Champion as a defendant. The amended complaint alleged
Dr. Champion committed medical negligence for failing to
accurately diagnose the nature of Mrs. Rodriguez' eye
stay requested by Dr. Nicolitz was denied and after leave was
granted to file the amended complaint, Dr. Champion moved to
dismiss that amended complaint. Dr. Champion argued that the
notice of intent to initiate litigation did not comply with
section 766.102(5)(a), Florida Statutes (2012), which
mandates that in litigation involving a specialist defendant,
a plaintiff's expert be of the same or similar specialty
as the defendant. Dr. Champion is an ophthalmologist while
Dr. Sall is an infectious disease specialist. In support of
her position, Dr. Champion cited Edwards v. Sunrise
Ophthalmology Assoc., 134 So.3d 1056 (Fla. 4th DCA
2013), where the reviewing court held that an ophthalmologist
and an infectious disease specialist were too dissimilar to
satisfy section 766.102(5)(a) under the facts of that case.
trial court here agreed that Dr. Sall's affidavit was
inadequate since his specialty differed from Dr. Champion,
and thus the mandatory presuit notice of ...