MICHAEL D. RIGGENBACH, M.D. AND ORLANDO ORTHOPAEDIC CENTER

v.

CHAD A. RHODES

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

MICHAEL D. RIGGENBACH, M.D.

AND ORLANDO ORTHOPAEDIC

CENTER,

Petitioners,

v. Case No. 5D18-1889

CHAD A. RHODES,

Respondent.

________________________________/

Opinion filed January 25, 2019

Petition for Certiorari Review of Order from the Circuit Court for Orange County, Chad K. Alvaro, Judge.

Thomas E. Dukes, III, and Wilbert R. Vancol, of McEwan, Martinez, Dukes & Hall, P.A., Orlando, for Petitioners.

Margaret E. Kozan, of Margaret E. Kozan, P.A., Winter Park, and Daniel C. Elkins, of Law Offices of Elkins & Freedman, Boca Raton, for Respondent.

EDWARDS, J.

Petitioners, Dr. Michael Riggenbach and Orlando Orthopaedic Center, have sought certiorari review of an order denying their motion to dismiss Respondent Chad Rhodes’ medical malpractice lawsuit. Petitioners moved to dismiss because Rhodes’ presuit written expert report, from a physician who specializes in plastic surgery, offered

BACKGROUND FACTS

After suffering injuries to his right wrist, Rhodes sought treatment from Dr. Riggenbach, who was employed by Orlando Orthopaedic Center. In March 2014, Dr. Riggenbach performed wrist surgery involving insertion of an anchoring mechanism which allegedly was improperly seated and became lost in Rhodes’ wrist. Rhodes’ medical malpractice complaint alleged that Dr. Riggenbach was negligent in performing this surgery, which resulted in the need for additional surgery and treatment, and ultimately caused permanent injury to Rhodes’ wrist.

Pursuant to section 766.106(4), Rhodes served Petitioners with a presuit notice of intent to initiate litigation for medical negligence. The presuit notice included a verified written medical expert opinion (“expert affidavit”)—signed by Drew Kreegel, M.D., a board certified plastic surgeon and otolaryngologist—to corroborate that reasonable grounds existed to initiate the medical malpractice claim. After objecting during the presuit period, Petitioners moved to dismiss the laterfiled medical malpractice complaint because Dr. Kreegel’s expert affidavit was not authored by a physician who practiced in the same specialty as Dr. Riggenbach. Petitioners supported their third motion to dismiss the complaint by providing an affidavit

LEGAL ANALYSIS

Availability of Certiorari Review “Although orders denying motions to dismiss are generally not reviewable by writ of certiorari, Florida courts have created an exception and permit certiorari review when the presuit requirements of the [Florida Medical Malpractice Act] are at issue.” Holmes Reg'l Med. Ctr., Inc. v. Dumigan, 151 So. 3d 1282, 1284 (Fla. 5th DCA 2014); accord Rell

The bill amends s. 766.102(5), F.S., to limit the class of specialists qualified to offer expert testimony in a medical negligence action against a defendant specialist, to those specialists who practice in the same specialty as the defendant. The bill repeals s. 766.102(14), F.S. This appears to have the effect of overturning Oliveros v. Adventist Health Systems/Sunbelt, Inc. and reinstating the holding in Barrio v. Wilson. Accordingly, the repeal of the subsection appears to remove the discretion of the court to qualify or disqualify an expert witness on grounds other than the specific qualifications specified in ss. 766.102(5) ̶ (9), F.S.

Prof’l Staff of the Comm. on Judiciary, Fla. S. Bill Analysis & Fiscal Impact Statement, S.B. 1792, 10 (Mar. 29, 2013) (emphasis added).

6 (a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:

1. Specialize in the same specialty as the health care

provider against whom or on whose behalf the testimony is offered; and

2. Have devoted professional time during the 3 years

immediately preceding the date of the occurrence that is the basis for the action to:

a. The active clinical practice of, or consulting with respect to, the same specialty;

§ 766.102(5), Fla. Stat. (2014) (emphasis added).

“The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.” Kephart v. Hadi, 932 So. 2d 1086, 1089 (Fla. 2006). When construing a statute, we strive to effectuate the Legislature’s intent. See, e.g., Borden v. E.-European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006) (“We endeavor to construe statutes to effectuate the intent of the Legislature.”). To determine that intent, we look first to the statute’s plain language. Id. at 595. “[W]hen the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Id. (quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005)).

Florida courts have previously decided that “same specialty” is to be taken literally and is not synonymous with physicians with different specialties providing similar treatment to the same areas of the body. First in Clare v. Lynch, the Second District held that a board certified podiatrist was not statutorily qualified to provide expert opinions, including in a presuit medical malpractice expert affidavit, regarding the care and treatment provided by the defendant board certified orthopedic surgeon who performed

7 surgery on the plaintiff’s foot. 220 So. 3d 1258, 1261–62 (Fla. 2d DCA 2017). “While both doctors’ practices focus primarily on foot and ankle surgery, these two doctors have different training and practice in different specialties.” Id. at 1260–61. The Second District noted that the legislative changes, discussed above, made it clear that opinions of providers from “similar” specialties would no longer suffice, and that only opinions offered by specialists from the “same” specialty would be acceptable. Id. at 1261. The Second District concluded that the trial court clearly departed from the essential requirements of the law by reinstating the malpractice suit, as it was supported only by the podiatrist’s noncomplying affidavit. Id.

Recently, the First District considered what “same specialty” means in the context of workers’ compensation statutes. Myers v. Pasco Cty. Sch. Bd., 246 So. 3d 1278 (Fla. 1st DCA 2018). An injured workers’ compensation claimant is entitled to a one-time change of “physician who practices in the ‘same specialty’ as the originally authorized doctor” pursuant to section 440.13(2)(f), Florida Statutes (2016). Id. at 1278–79. In Myers, the Judge of Compensation Claims (“JCC”) found that the employer/carrier (“E/C”) was justified in authorizing a neurosurgeon in response to the claimant’s request for a one-time change to a different orthopedic surgeon. Id. at 1279. The JCC denied the claimant’s objection to being provided a physician practicing a different specialty, “reasoning that the term ‘specialty’ is broader than the ‘specialty of [the] physician’ and ‘should be extended to’ the types of conditions the doctor treats.” Id. The JCC concluded that, “[b]ecause orthopedic surgeons and neurosurgeons both treat back injuries, and the Claimant [had] a compensable back problem,” the E/C’s decision to authorize a change from an orthopedic surgeon to a neurosurgeon complied with the statute. Id.

8

On appeal, the First District stated that “[a] physician who provides similar services in a different specialty does not qualify as a doctor in the ‘same specialty’ because—quite simply—‘same’ is different than ‘similar.’” Id. (citing Clare, 220 So. 3d at 1261). Because “the neurosurgeon authorized by the E/C did not practice in the ‘same specialty’ as the originally authorized orthopedic surgeon,” the First District reversed the JCC’s order denying the requested one-time change to a different orthopedist. Id. Finally, in another opinion from a different panel of our court, released today, we concluded that plaintiff’s medical malpractice presuit expert affidavits from an emergency room physician, a radiologist, and a nurse were legally insufficient because they were not provided by experts who practice in the same specialty as the defendant, an orthopedic surgeon. Davis v. Karr, No. 5D18-149 (Fla. 5th DCA Jan. 25, 2019). Our court affirmed the trial court’s order and resultant final judgment that dismissed plaintiff’s medical malpractice suit with prejudice. Id.

Because we find the applicable statutory language clear, and Clare, Myers, and Davis well-reasoned, we hold that the trial court erred in finding that a plastic surgeon and an orthopedic surgeon practiced the same specialties. Dr. Kreegel’s affidavit was statutorily insufficient; therefore, Rhodes failed to comply with the presuit requirements of filing a medical malpractice complaint against Petitioners pursuant to section 766.203. We hold that the trial court clearly departed from the essential requirements of the law by subjecting Petitioners to material injury that cannot be remedied on appeal. We grant the petition, quash the trial court’s order on rehearing that denied Petitioners’ motion to dismiss, and remand with instructions for the trial court to dismiss Rhodes’ malpractice suit.

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PETITION GRANTED, ORDER QUASHED, REMANDED WITH INSTRUCTIONS.

ORFINGER, J., and JACOBUS, B.W., Senior Judge, concur.