The Florida Statutes currently state that, in order to give expert testimony concerning the prevailing professional standard of care, the person must be a health care provider who holds an active and valid license and who specializes in the same specialty as the health care provider against whom or on whose behalf the testimony is offered. § 766.102(5)(a)(1), Fla. Stat. While the statute was amended to its current form in 2013, the meaning of the language in the statutory change is just now circulating through the appellate courts.

As background, the Florida Legislature, in 2013, amended Florida Statute 766, making several changes, the effect of which was to make more difficult the consumer's ability to bring an action for medical malpractice.¹ Principally, the language allowing a similar specialty to opine on the standard of care of another physician was stricken from the Section 5(a)(1) and 5(a)(2)(a),(b), and (c). Further, Section 14, which allowed judicial discretion to qualify or disqualify an expert, was eliminated in its entirety. Despite this statutory change, the Florida Bar Code and Rules of Evidence Committee recommended, in a 24-to-1 vote, that the Supreme Court NOT adopt Chapter 2013-108 as a rule of evidence, to the extent it was procedural in nature. In doing so, they argued strongly that the "Same Specialty Amendment" was procedural, because it regulated "the course, form, manner, means, method, mode, order, process or steps by which a [medical malpractice litigant] enforces substantive rights." ² The Committee further noted that the Same Specialty Amendment contradicted a longstanding law that allowed qualified experts to testify on matters that would aid the jury. ³

In its Order of February 16, 2017, The Supreme Court of Florida declined to adopt the Same Specialty Amendment, Section 766.102(5)(a), Florida Statutes (2012) to the extent the changes were procedural. ⁴ This occurred due to the Supreme Court's concern that the statute was "unconstitutional, [had] a chilling effect on the ability to obtain expert witnesses, and [was] prejudicial to the administration of justice."⁵ No decision was made on the constitutionality of the change at the time, because no case or controversy was before the Court in which to make the decision.

Subsequently, in 2019, the Fifth District Court of Appeals quashed a lower court order concerning a same specialty issue and remanded to the trial court, stating:

On remand, the trial court rejected the constitutional arguments and ruled that the same specialty requirement was constitutional. This ruling included a dismissal with prejudice. That ruling was, itself, not further appealed, so to date, no opinion regarding the constitutionality of the statute by an appellate court exists.

At present, we are beginning to see appellate rulings come out regarding other aspects of the same specialty requirement. The most recent of these is Martinez v. Ortiz, 2022 WL 4389891 (Fla. 2d DCA 2022). In that case. two issues were brought before the Second District Court of Appeal. The first was whether or not the failure to provide a sworn affidavit contemporaneously with the notice of intent was fatal to the notice, or whether it could be cured.⁷ The second issue was about the same specialty requirement. The defendant ophthalmologist argued that the requirement was not met because the plaintiff's expert was also a neuro-ophthalmologist. As with previous cases on same specialty, the Martinez Court began its analysis with a review of the plain language of the statute, noting:

Next, the Court examined the relevant part of Section 766.102(5):

Importantly, the Court noted that the term "same specialty" is not defined in the statute, but that the language of the statute is "clear and requires the patient to provide a presuit affidavit from aspecialist in the same field as the prospective healthcare defendant."⁹ The Merriam Webster Dictionary defines "field" as "an area or division of an activity, subject, or profession."¹⁰ This definition may become important because many of the courts addressing these issues use the term "board certified" when discussing the "field" of the witness, such as podiatry versus orthopedic surgery; plastic surgery versus orthopedic surgery, etc. Many defendants are now moving to dismiss complaints where the plaintiff utilizes an expert who is in the same field but not board certified in the field. The arguments are that all appellate cases use the term "board certified" in the text of their opinions while comparing specialties, and thus, board certification is the relevant element of comparison in a dispute concerning whether the plaintiff's expert is in the "same specialty" as the defendant. It is noteworthy that no court has specifically made this distinction or ruled that board certification is the measure against which "same specialty" will be evaluated. While Martinez compares the specialties in question and refers to their board certification, it goes on to state that since both are ophthalmologists, the fact that additional training was had by plaintiff's expert was "split[ting] hairs."¹¹ While this is not direct language stating that an expert must only be in the same "field" as opposed to having an identical board certification, it seems to be a step in that direction.

Until the appellate courts define, further, the meaning of same specialty and root out the "hair splitting" engaged in by the defense, it remains advisable to use an expert with the same occupation and in the same field and, when possible, one with the same "board certification" as the defendant.

J. Clancey Bounds is the Founder and a practicing attorney for the Bounds Law Group, located in Maitland Florida. He is admitted to the bar and practices in Florida, Arizona, California, District of Columbia, and Texas

¹ Section 2 of Chapter 2013-108, Laws of Florida.
² Massey v. David, 979 So. 2d 931, 937 (Fla. 2008) (emphasis removed and quoting Haven Fed. Sav. & Loan Ass 'n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991)).
³ Section 90.702, Florida Evidence Code
⁴ In re: Amendments to the Florida Evidence Code, 210 So. 3d 1231, 1239 (Fla. 2018).
⁵ Id.
⁶ Riggenbach v. Rhodes, 267 So. 3d 551, 552 (2019)
⁷ As an aside, but important to medical malpractice practitioners, the Second District in Martinez agreed with the previous rulings of other courts that stated that as long as an appropriate affidavit is supplied prior to the running of the statute of limitations, the defect (failure to send corroborative affidavit with the notice of intent) in the notice of intent is cured. Specifically, the Court cited to Dial 4 Care, Inc. v. Brinson, 319 So.3d 111,114 (Fla. 3d DCA 2021), and Kukral v. Mekras, 679 So. 2d 278,280 (Fla. 1996) on this issue.
⁸ Martinez, supra at 3.
⁹ Id., citing Riggenbach v. Rhodes, 267 So. 3d 551, 555-56 (Fla. 5th DCA 2019).
¹⁰ Merriam-Webster Dictionary 2022.
¹¹Martinez, supra at 4.