Florida has established a statutory framework for the pre-suit investigation of medical malpractice cases.  See §766.201-.212, Fla. Stat.  Part of that framework requires that a claimant, prior to noticing its intent to initiate medical negligence litigation, “corroborate reasonable grounds to support the claim of medical negligence” with a “verified written medical expert opinion.”  On July 17, 2013, the Florida Supreme Court accepted review of a case that centers around the sufficiency of a plaintiff’s pre-suit expert corroborating affidavit.  See Rell v. McCulla, 101 So. 3d 878 (Fla. 2d DCA 2012) (Fla. Sup. Ct. Case No. SC12-2598).

Origin of Dispute


In the case, the plaintiffs, a husband and wife, filed a complaint based on injuries that the husband suffered to a tendon in his right ankle.  The plaintiffs claimed that the injuries were the result of two arthroscopic surgeries and a steroid injection performed by Dr. Rell, a podiatrist.  Following treatment with Dr. Rell, the husband sought a second opinion from Dr. Cottom, who ultimately performed two more surgeries on the husband’s ankle, stating that he suffered a “partial tear with tibialis anterior tendon as a result of previous arthroscopic debridement.”


The plaintiffs served a notice of intent to initiate a medical malpractice action on Dr. Rell and Coastal Orthopedics and Sports Medicine of Southwest Florida, P.A. and attached the affidavit Dr. Jeff Kopelman, which provided, in relevant part:


Dr. Rell injected 25% of dexamethasone phosphate into some scar buildup along the medical portal incision site. The concerns here, which would warrant further investigation, are (a) did the steroid go into the tendon and possibly weaken it and/or (b) predispose it to tearing? The evaluation of these concerns warrants further investigation….


In my expert opinion, based on the records provided, there are reasonable grounds that the patient’s tibialis anterior tendon could have been weakened or injured by the steroid shot given by Dr. Rell. This is notwithstanding that we are dealing with a patient with previous ankle medical history, as well as five surgeries on his foot, and therefore with increases in his risks of scarring, arthritis and possible future foot problems.


Dr. Kopelman did not opine whether he believed that Dr. Rell’s treatment fell below the standard of care or whether the injury was outside of the foreseeable results of the procedures.


Dr. Rell and Coastal responded to the notice of intent with a letter to the plaintiffs, advising them that the affidavit was deficient.  Dr. Kopelman then executed an addendum to his original affidavit, which provided: 


To clarify and supplement my Verified Opinion dated March 4, 2001, I would state that, based on the records reviewed, there exists reasonable corroborating grounds to further investigate a claim of medical negligence against Brian Rell, DPM and the causation of damage to patient David McCulla’s anterior tibialis tendon. I continue to reserve the right to modify my opinions based on additional information.


As with Dr. Kopelman’s original affidavit, the addendum did not include any opinion stating that there were reasonable grounds to believe that Dr. Rell’s treatment fell below the standard of care.


Trial Court Proceedings


After the plaintiffs filed their complaint, Dr. Rell and Coastal moved to dismiss, arguing that the plaintiffs failed to comply with Florida’s pre-suit notice requirements because they did not obtain a corroborating opinion from a medical expert attesting that the husband’s injuries were caused by medical negligence. The trial court denied the motion to dismiss, stating that while Dr. Kopelman’s affidavits may have been less than adequate to independently support a claim of medical negligence, the affidavits, in conjunction with the plaintiffs’ counsel’s review of the records, were sufficient to satisfy the statutory pre-suit requirements.  See §766.203(2), Fla. Stat. Dr. Rell and Coastal sought a writ of certiorari in the Second District Court of Appeal to quash the order denying the motion to dismiss.


Certiorari Proceeding


The Second District stated that the purpose of the medical expert opinion is to assure the defendant and the court that a medical expert has determined that there is justification for the plaintiff’s claim; i.e., to “corroborate that the claim is legitimate.”  The purpose is not to simply give notice of the plaintiff’s claim.  Thus, the issue was whether the plaintiffs’ expert’s affidavit sufficiently indicated that the husband had a legitimate claim for medical malpractice.  “In other words, did the corroborating affidavit sufficiently set forth that Dr. Rell was negligent in the care and treatment of [the husband] and that such negligence resulted in injury to [the husband]?”


The court found that while Dr. Kopelman noted in his affidavit that Dr. Cottom believed that the arthroscopic surgery performed by Dr. Rell tore the husband’s anterior tendon, Dr. Kopelman did not go so far as to opine that such action constituted medical negligence.  In addition, while Dr. Kopelman opined that there were reasonable grounds “to further investigate a claim of medical negligence” against Dr. Rell, he never provided any definitive corroboration that the plaintiffs’ claims were legitimate; that is, that Dr. Rell provided negligent care and treatment and that such negligence resulted in injury.  The court also stated that because the affidavit failed to indicate in which manner Dr. Rell deviated from the standard of care, Dr. Rell was prevented from conducting a full evaluation of the merits of the plaintiffs’ claim. Thus, the court held that the requirements of Section 766.203(2) were not met and that the trial court departed from the essential requirements of the law when it failed to grant the motion to dismiss.


The parties have begun the briefing process in the Florida Supreme Court, which will schedule oral argument in the future.  The author will update this article after the Court decides the case.