Professional Liability

Morris v. Muniz: A Sword Against Whom?

Morris v. Muniz: A Sword Against Whom?

Until recently, there had been confusion regarding the application of Florida’s Medical Malpractice Act[1] (the “Act”) as it pertains to (1) the proper appellate standard of review of a presuit expert’s qualifications, and (2) whether a showing of prejudice is a prerequisite to dismissal of a medical malpractice case for failure to comply with presuit discovery requests. The widely anticipated case of Morris v. Muniz[2] clarifies these issues. Justice Barbara Pariente wrote for a majority of the court in a 4-3 opinion. The case broadly interprets the applicable subsections of the Act in an effort to preserve and promote a plaintiff’s access to courts and accuses defendants of using the Act’s requirements “as a sword against plaintiffs.”[3] This is at odds with the dissent’s plain reading of the Act. Morris makes it more difficult, although not impossible, to defend against medical malpractice suits based on the Act’s requirements pertaining to presuit expert witness qualifications.

To summarize, before filing suit, the Act requires a Plaintiff to investigate his or her claim to establish whether there are reasonable grounds to bring an action and plaintiffs must corroborate those grounds by expert opinion.[4] The expert must also meet the definition of medical expert,[5] and be qualified.[6] The crux of this case revolves around whether Plaintiff’s expert, Dr. Thompson (“Thompson”), was a qualified presuit expert under the Act.

Standard of Review

The case sets forth a bright line rule for the review of future cases involving the expert witness provisions of the Act. It establishes that where a presuit expert’s qualifications are unrefuted, the proper standard of review of a trial court’s dismissal of an action based on its determination that the plaintiff’s presuit expert witness was not qualified is de novo. This means that the issue of whether a presuit expert meets the statutory qualifications is a legal one and involves merely comparing the expert’s qualifications with that of the statutory requirements.

Applying the de novo standard, the majority found Thompson to be a qualified expert under the Act. In reaching its conclusion, the majority explained that an expert must be “duly and regularly engaged” in the practice of her profession but that the section does not define “duly and regularly engaged.” Likewise, an expert cannot give testimony unless he or she has a valid license and has devoted “professional time” during the 3 years immediately preceding the date of the occurrence about which the expert is to testify. Again, “professional time” is not defined. The Act’s lack of clarification resulted in the majority interpreting the Act in a way that favored access to courts for the Plaintiff.

The dissenting opinion, however, construed the Act literally, as including both present tense and backward-looking requirements. The requirement that the expert must “have devoted professional time in the past three years” is backward-looking. On the other hand, the requirement that an expert “be duly and regularly engaged” is a present tense construction, requiring an expert to be duly and regularly engaged in the profession at the time his or her opinion is given, which Thompson was not.

Disagreeing with the dissent, the majority claimed there was ample unrefuted evidence that Thompson was qualified. For example, she was an OB-GYN for over 30 years, had been in several leadership positions, carried memberships to peer review committees, and attested that she was engaged in full-time patient care until March of 2008.[7] Further, Defendants failed to present evidence to suggest Thompson’s claims were false. Rather, Defendants questioned the truthfulness of Thompson’s sworn statements, which the majority notes is not the same as presenting evidence to suggest such statements were false. Finally, the majority found that no such requirement of specificity exists in the relevant subsections of the Act, and the lower courts’ reading such a requirement into the Act was error.[8] In other words, to effectively challenge an expert’s qualifications, defendant must apparently present direct evidence contradicting an expert’s stated qualifications, not merely challenging the feasibility or truthfulness of his or her statements.

Scope of Presuit Discovery

The case next addressed the scope of presuit discovery. The Act provides that access to reasonable information shall be provided without formal discovery. However, the Act does not specify the scope of this type of discovery. Although it may be necessary to hold an evidentiary hearing to determine an expert’s qualifications where his or her affidavit fails to establish he or she is qualified, the same is not true where, as in this case, the presuit affidavit “clearly establishes” an expert’s qualifications, and the defendant has failed to provide evidence to the contrary. Thus, because it was “clear” Thompson was qualified from her affidavit, the trial court erred in allowing formal discovery (Thompson’s deposition) in this case. Therefore, a defendant’s request for limited formal discovery is proper only where there is a genuine dispute regarding an expert’s qualifications. What qualifies as a “genuine dispute” was not addressed in the case, but it presumably involves providing direct evidence that he or she is unqualified by contradicting his or her affidavit.[9]  

Prejudice Required

Lastly, the case establishes that, before a medical malpractice action can be dismissed for failure to comply with the informal presuit discovery process, the trial court must make a finding of prejudice.

The case quotes the well-established rule that “it is improper to dismiss an action for a plaintiff’s failure to comply with discovery where the defendant suffers no prejudice.”[10] This rule now applies to presuit discovery requests under the Act. Therefore, a motion to dismiss under the Act will survive only if the defendant can show prejudice. Defendants failed to identify any prejudice in this case, even though during Thompson’s deposition, Plaintiff’s counsel “repeatedly objected to questions,” “refused to allow” Thompson to answer certain questions, and “thwarted” Defendants from learning certain information.[11] Furthermore, it is now established that a claim of prejudice based on delay is “not the type of prejudice contemplated by . . . case law.”[12] The case does not, however, provide insight into what prejudice would have qualified as sufficient.[13]

In conclusion, this decision delivers a modest blow to defendants. Contrary to the asserted belief, defendants do not typically use the Act’s requirements “as a sword against plaintiffs.”[14] Instead, the Act’s provisions were intended to shield a defendant from unqualified plaintiff experts who lack sufficient knowledge of the relevant standard of care to properly corroborate whether there are “reasonable grounds” to bring an action under the Act. Thus, in presuming the Act is being used as a weapon, the majority threatens to frustrate the Act’s purpose of screening out meritless claims supported by unqualified experts. The arguments of both the majority and dissent detail numerous perceived ambiguities within the Act. Such ambiguities seem ripe for further review by the legislature. Without action by the legislature, ambiguities will likely persist and the Act’s purpose of screening out unfounded claims in the presuit period may be hindered.   

[1] See Fla. Stat. §§ 766.101­–316 (2018).

[2] Morris v. Muniz, No. SC16-931 (Fla. Sept. 6, 2018).

[3] Id. (quoting Michael v. Med. Staffing Network, Inc., 947 So. 2d 614, 619 (Fla. 3d DCA 2007)).

[4] § 766.203(2).

[5] § 766.202(6).

[6] Id.; Fla. Stat. § 766.102 (2011).

[7] The dissent found it significant that Thompson’s affidavit stated she retired in March of 2008, and thus, was not currently engaged in the practice of medicine at the time her opinion was given in 2011. Id. at 44 (Canady, J., Dissenting).

[8] The dissent found Thompson to be unqualified, citing to the fact that at the time she gave her opinion she had been retired from the practice of medicine for nearly three years. Similarly, when the incident arose in this case, Thompson had been retired for nearly ten months, although she was recertified as an OB-GYN in 2007 and 2009 in the state of Texas. According to the dissent’s construction of the Act Thompson did not meet the Act’s requirements to qualify as an expert.

[9] The majority does not disclose how such direct evidence contradicting the expert’s qualifications is to be obtained in the absence of any formal discovery.

[10] Id. at 34.

[11] Id. at 36.

[12] Id. at 38.

[13] Apparently, the inability to obtain direct evidence to contradict the Plaintiff’s expert’s affidavit regarding her stated “qualifications” is not sufficient to show “prejudice.”

[14] Id. (quoting Michael v. Med. Staffing Network, Inc., 947 So. 2d 614, 619 (Fla. 3d DCA 2007)).