A Florida woman cannot sue a Lakeland orthopedic doctor for unnecessary surgery because her medical expert was not from the same medical specialty as the treating physician.
Maria Johnson Lynch went to the Florida Orthopaedic Institute (FOI) in Lakeland after breaking a toe. She underwent surgery as well as other therapies which, she said, did not fix her problems. She then went to see other doctors. One of them told her that the surgery she underwent was not necessary or appropriate in her case.
Filed Claim without Medical Malpractice Lawyer
Accordingly, Lynch filed a lawsuit in Hillsborough County Court alleging that Dr. Michael Clare and FOI committed medical malpractice by performing unnecessary surgery. She filed her suit without an attorney, working pro se.
A person suing for medical malpractice in Florida must provide an affidavit from a qualified medical expert. The expert must practice the same kind of medicine as the defendant. The expert has to testify that a doctor or other health care provider violated the standard of care in providing treatment. As part of her suit, Lynch filed an expert affidavit from a board-certified podiatrist named Dr. Benjamin Overley.
Dr. Clare’s attorneys challenged Dr. Overly’s affidavit because Dr. Clare is an orthopedic surgeon. The attorneys said that orthopedic surgery is a different medical specialty than podiatry. The Hillsborough court agreed at first, but then ruled in Lynch’s favor that the case could go forward.
The recent ruling from the Florida 2nd District Court of Appeal reversed that decision, dismissing the case.
The court said that “Clare is a board-certified orthopedic surgeon. It is also undisputed that Dr. Overley is a board-certified podiatrist. While the practices of both doctors does focus primarily on foot and ankle surgery, these two doctors have different training and practice in different specialties.”
Sources:
http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/June/june2117.shtml
http://flarecord.com/stories/511131889-2nd-district-court-of-appeal-rejects-malpractice-lawsuit-over-expert-affidavit
https://www.law360.com/articles/937201
