Sunset falls over the Florida Supreme Court building (Phil Sears)
The Florida Supreme Court heard two cases Thursday testing the boundaries of pre-suit requirements for medical malpractice lawsuits.
The estate of Enrique Casasnovas, a diabetic who died in 2007, alleges it should not have to comply with pre-suit requirements because it isn’t bringing a medical malpractice case. Casasnovas was refused the care of a gastroenterologist when he was taken to the emergency room at Palms West Hospital in Loxahatchee.
The Palms West staff examined him and determined he needed a gastroenterologist. Six were on staff, but all of them refused to see or treat him.
Because an identical situation arose a month earlier and the previous patient also died, the estate alleged Palms West knew it wasn’t providing the medical care it promised the state and didn’t correct the problem, creating a negligent retention cause of action.
The justices appeared unconvinced, with several doubting the proposition that the case wasn’t connected to malpractice.
Justice Charles Canady cited the statute, noting eligible expert testimony for a malpractice action would cover administrative actions.
Hospital attorney Mark Hicks of Hicks, Porter, Ebenfeld & Stein in Miami argued the correct test is the plain language of the medical malpractice law—claims “arise out of the rendering of or the failure to render medical care or services.”
Family attorney Andrew Harris of Burlington & Rockenbach in West Palm Beach said it could not be a medical malpractice case because there can be no expert testimony on the standard of care for a physician who had no relationship with the patient.
“You can say that until you’re blue in the face,” Justice R. Fred Lewis said. “It’s a shame that this kind of situation arises, but it has something to do with doctors not coming to the hospital.”
In the second case, the justices examined whether an affidavit given by the plaintiffs expert witness was sufficient.
David McCulla was preparing to sue Dr. Brian Rell, a podiatrist, in 2011 alleging he committed malpractice when he injured a foot tendon during surgery. His expert, Dr. Jeff Kopelman, submitted an affidavit stating Rell could have weakened or injured the tendon based on the record. He cited several issues, concluding, “These concerns warrants further investigation.”
Kopelman’s affidavit was given to Rell’s attorney early in the 90-day pre-suit period but was not challenged until three days before the period ended.
McCullas’ attorney, Louis Thaler of Coral Gables, argued it was unreasonable for the defendant to insist on a more definitive statement. Kopelman did not want to allege Rell committed malpractice without hearing him, but depositions do not occur until after a lawsuit reaches the discovery phase.