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Rodriguez v. Nicolitz

Florida Court of Appeals, First District

May 18, 2018

Diane Rodriguez and David Rodriguez, her husband, Appellants,
v.
Ernst Nicolitz, M.D. and Lenka Champion, M.D., Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Karen Cole, Judge.

          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.

          Bilbrey, J.

         Diane 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.

         I. Background

         On 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.

         By 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 Mrs. Rodriguez.

         Thereafter, 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.

         By 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."

         Thereafter, 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 infection.

         After a 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.[1] 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.

         The 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 ...


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