“Similar,” “Specialize” and “Specialty”

August 31, 2013

Edwards v. Sunrise Ophthalmology ASC, — So.3d —, 2013 WL 4525599 (Fla.App. 4 Dist. 2013)

This decision adjudicated an appeal from an order dismissing the plaintiff’s medical malpractice action against an ophthalmologist and his employer due to her failure to obtain a written opinion from an expert specializing in a field similar to the defendant’s specialty. The plaintiff alleged that she contracted a rare bacterial infection as a result of lower eyelid surgery improperly carried out by the defendant. Specifically, she claimed that the defendant did not use proper sterilization techniques.

To establish this claim, the plaintiff produced an opinion from an infectious disease doctor. The plaintiff relied on Weiss v. Pratt, 53 So.3d 395 (Fla.App. 4th Dist. 2011) – a decision that allowed an emergency room physician to testify against an orthopedic surgeon on how to move an injured football player from the field. The appellate court ruled that the Weiss holding was narrow in that it applied only to the emergency part of the patient’s treatment by the orthopedic surgeon. As a general rule, the plaintiff expert’s specialty must align with the defendant’s specialty. Absent this alignment, the expert would not be qualified to testify about the applicable standard of care.  The court illustrated this generally accepted rule by Barrio v. Wilson, 779 So.2d 413 (Fla.App. 2d Dist. 2000) – a decision holding that a pulmonologist was not qualified to testify against an emergency room physician.

Based on this analysis of the law, the court decided that the infectious disease doctor called by the plaintiff was not qualified to testify about medical norms followed by ophthalmologists.

The dissenting judge has opined that people’s constitutional right to access to courts calls for a broader interpretation of the alignment rule. This opinion resonates with the Oklahoma Supreme Court decision, Wall v. Marouk, — P.3d —, 2013 WL 2407160 (Okla. 2013), that I discuss here. I believe that it takes the access-to-courts entitlement too far. This entitlement does not allow a plaintiff to establish an element of her suit – here, the requisite care standard – by evidence that the law deems irrelevant or unsafe to rely upon.