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Ramiro Nieves, M.D. v. Jose Viera, et al., Case No. 3D13-1137 (3rd DCA)

In Nieves, the Third DCA denied a petition for writ of certiorari filed by a defendant doctor in a medical malpractice case, from an order denying his motion to dismiss. On November 8, 2009, the defendant doctor, an orthopedic surgeon, performed a surgery on the decedent's femur. The surgery was uneventful and successful, and the decedent was noted as doing well in the post-anesthesia care unit. Several hours later, after having been administered pain medication by the hospital nursing staff, the decedent suffered respiratory arrest. She died four days later. During the four days, the hospital staff did not contact the defendant doctor, nor did the defendant doctor contact the decedent.

On April 25, 2011, the plaintiff sent the defendant doctor a notice of intent to initiate a medical malpractice action pursuant to section 766.106, Fla. Stat., and included a verified writen medical expert opinion by a medical doctor specializing in the practice of internal medicie and pulmonology. The defendant doctor moved to dismiss the complaint on the ground that the affiant did not specialize in the same or similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients, as required by Fla. Stat. 766.102(5)(a)1.

The Third DCA noted that the central issue presented as it pertains to the defendant doctor was whether he had a duty to follow the decedent's medical progress and care after she was transferred out of the post-anesthesia care unit, and if so, whether his failure to do so was the proximate cause of her death. The plaintiff argued that the affiant was an appropriate expert because the claim against the defendant doctor was not based upon his orthopedic skill, but rather only his alleged post-operative negligence. The defendant doctor argued that only an orthopedic surgeon could satisfy the statutory same or similar requirement. The Third DCA noted however that the gravamen of the defendant doctor's petition was that the trial court failed to conduct an evidentiary hearing on the motion to dismiss.

The Third DCA determined that because medical malpractice presuit requirements permit certiorari review, the only question before the court was whether the trial court departed from the essential requirements of the law when it denied the motion to dismiss without calling, sua sponte, an evidentiary hearing. The court noted that the a departure from the essential requirements of the law is a high standard. The Third DCA determined that the trial court did not have an obligation to conduct an evidentiary hearing before ruling on the motion to dismiss. There is no statutory or case law mandating such a requirement. Notably, in this case, the defendant doctor did not ask for an evidentiary hearing at the trial court level.


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