It was the same, but now….

FLORIDA LAW WEEKLY

VOLUME 50 NUMBER 39

CASES FROM THE WEEK OF OCTOBER 3, 2025

TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO COMPLY WITH PRESUIT—PLAINTIFF’S EXPERT AFFIDAVIT FAILED TO CORROBORATE THE NEGLIGENCE CLAIM SET FORTH IN PLAINTIFF’S AMENDED COMPLAINT

Potparic v. Barnes, 50 Fla. L. Weekly D2104 (Fla. 4th DCA Sept. 24, 2025):

The plaintiff sued the defendant plastic surgeon for post-surgical complications she suffered after her surgery. The plaintiff submitted the affidavit of a plastic surgeon expert, opining that the doctor had violated the medical standard of care by performing level 3 office surgery at a center not properly registered with the Florida Department of Health. The affidavit further opined that the nurse who had administered anesthesia during the surgery had violated the medical standard of care by doing so while the surgeon was not registered.

After discovery showed that the surgeon was properly registered at the time of surgery, the plaintiff sought leave to amend to file a second amended complaint, abandoning the original negligence theory. Instead, the plaintiff alleged that she was harmed because the nurse was not properly registered with the DOH. The plaintiff did not submit a new affidavit with the second amended complaint.

In reviewing the second amended complaint, the court concluded that the expert’s affidavit failed to corroborate reasonable grounds to support the claim of medical negligence set out in that complaint (and there was no other corroborating affidavit provided).

The purpose of the medical expert’s opinion is to assure the defendants and the court that a medical expert has determined that there is justification for the plaintiff’s claim. The purpose is not simply for “notice,” but for corroboration of the legitimacy of the claim.

Because the plaintiff failed to comply with the procedural requirement requiring her to submit a corroborating affidavit of an expert witness for the claim she was making, the appellate court granted defendant’s petition, quashing the denial of the motion to dismiss, and dismissing the claim.

TRIAL COURT ERRED BY ALLOWING AN EXPERT NEPHROLOGIST TO TESTIFY AND PROVIDE OPINIONS ON THE STANDARD OF CARE FOR A VASCULAR SURGEON FROM THE STANDPOINT OF A NEPHROLOGIST—AN EXPERT MAY NOT TESTIFY TO THE PROFESSIONAL STANDARD OF CARE AGAINST A SPECIALIST UNLESS THAT EXPERT SPECIALIZES IN THE SAME SPECIALTY AS THE HEALTH CARE PROVIDER AGAINST WHOM OR ON WHOSE BEHALF THE TESTIMONY IS OFFERED

Blackshear v. Haynes, 50 Fla. L. Weekly D2114 (Fla. 2d DCA Sept. 26, 2025):

The defendant physician first saw the plaintiff because the plaintiff was experiencing a “whooshing” sound in her chest, suspected of being a narrowing or obstruction of her carotid artery.

The doctor ordered a series of tests and then performed a renal vein assay procedure and an angioplasty on the right artery. Hours after the angioplasty, the doctor was called back to the hospital due to the plaintiff’s complaints of back pain. The doctor ordered a blood transfusion upon learning that her blood pressure was low. A CTA test revealed that the plaintiff had blood near her left kidney.

The plaintiff ultimately sought the treatment of another physician, and it was revealed that the defendant doctor was completely off with his diagnosis, and that the plaintiff was in reality experiencing an atrophying right kidney that lacked proper blood flow.

At trial, the plaintiff presented expert testimony from a vascular surgeon that many of the tests had been unnecessary. The plaintiff also presented expert testimony from a nephrologist who testified about the alleged medically unnecessary tests.

The physician objected to the nephrologist’s testimony, arguing that Florida’s same-specialty requirement rendered the physician not qualified to give an opinion on the standard of care for a vascular surgeon. The plaintiff successfully argued to the trial court that the doctor’s testimony was not about doing the surgery but about evaluating the surgery, which she argued was within a nephrologist’s purview.

The trial court agreed with the plaintiff. The defendant moved for a mistrial at the conclusion of the nephrologist’s testimony, again asserting the expert could not testify regarding the standard of care for a vascular surgeon. The jury reached a verdict for the plaintiff.

The appellate court reversed, finding that the nephrologist’s testimony was “mere smoke and mirrors,” improperly encroaching on the standard of care in a case against a vascular surgeon. Because the testimony ran afoul of section 766.1025, the court reversed the final judgment and remanded for a new trial on the two counts involving the standard of care for the vascular surgeon.

NO ERROR IN DENYING MOTION TO AMEND COMPLAINT TO ADD CLAIM FOR PUNITIVE DAMAGES—PLAINTIFF FAILED TO MAKE A REASONABLE SHOWING OF THE REQUISITE LEVEL OF REPREHENSIBILITY

Medfast Urgent Care Centers v. Arbogast, 50 Fla. L. Weekly D2122 (Fla. 5th DCA Sept. 26, 2025):

The court concluded that the plaintiff failed to make a reasonable showing of a reasonable basis for the award of punitive damages because the allegations in the proposed amended complaint and the evidence in the record did not rise to the level of reprehensibility required.

The plaintiff’s showing that two of the defendants had formed an entity during their tenure with the plaintiff and relied upon certain information, practices, and processes learned from the plaintiff—even when viewed in a light most favorable to the plaintiff—fell short of demonstrating a reasonable basis upon which a rational jury could conclude by clear and convincing evidence that the plaintiff should recover punitive damages.