Sarah Lahlou-Amine recently co-authored an article for the Florida Bar Journal that examines the Appellate Courts’ review of the same-specialty requirement for presuit experts in medical malpractice cases.
The primary objective of Florida’s medical malpractice presuit process is to keep unsupported lawsuits from proceeding into litigation. To complete a statutorily mandated presuit investigation, a plaintiff must retain an expert to provide an opinion supporting the plaintiff’s medical malpractice claim. Compliance with this and all other presuit requirements is a condition precedent to filing suit.
Whether a plaintiff’s presuit expert opinion complies with the statutory requirement is a common point of attack in defendants’ motions to dismiss medical malpractice lawsuits. Often, the challenge pertains to whether the expert is of the necessary specialty – a matter that has been the subject of judicial interpretation, legislative change, and vigorous debate over the years. This article tracks the evolving law on this issue, provides recommendations for counsel handling these matters in Florida’s trial and appellate courts, and proposes a procedure that may better serve the parties and the policy behind the presuit statutory scheme.