Interesting 1st DCA case – presuit notice requirements: most interesting part is discussion of internet citation

Today the First DCA  issued an opinion in Oken v. Williams, 1D08-3398, granting a petition for cert in case that argued that the trial court had failed to follow the law when denying a motion to dismiss for failure to comply with presuit notice in a medical malpractice action.  Basically, the plaintiff was attempting to bring a action against a board certified cardiologist, but had a corroborating affidavit signed by a doctor who was board certified in family and emergency medicine.  The motion to dismiss alleged that he was not a qualified expert.  The trial court however found that the areas he was certified in covered the areas of evaluating heart conditions and he was qualified therefore to do an affidavit.  The court found this in error, and basically said that you would have to be a cardiologist to be an expert.  The opinion then detoured off into the questions of whether citation to internet sources was appropriate, since the majority cited to internet sources to demonstrate what his not cardiology certifications did not qualify him as a cardiology expert- a generalist was not qualified to opine as to a specialist.

Appears the majority is correct on the standard for a presuit expert, but the interesting question is whether the record below, without resort to internet explanation of the meaning of specific board certifications, was sufficient to determine he was not qualified as an expert in cardiology.  Anyone with a med background or similar exposure could easily have reached that conclusion- generalist and specialist board certifications are different, but should a trial judge have understood that?  The majority said their result did not depend on internet citation and with basic background med knowledge, that is certainly true.  The dissent though doubted that the factual record was sufficient to make the determination without understanding the meaning of board certification, and raises the issue of when it is proper to cite to the internet, and what sources on the internet, if not part of the record below.  The opinion has a wealth of cites to other Florida appellate cases in which citations to the internet have been done, and it is an interesting discussion that will be more and more relevant in this electronic age.

Posted on September 30th, 2009 by Woodring Law, filed under Uncategorized
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