CopyCited 130 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 202, 2011 Fla. LEXIS 1027, 2011 WL 1675242
...of chapter 766, Florida Statutes (2005), the Medical Malpractice Reform Act. See Oken,
23 So.3d at 142. Specifically, Dr. Oken alleged that Dr. Foster was not an expert in the field of cardiology, and as a result, Williams had failed to comply with section
766.102, Florida Statutes (2005), because he failed to attach a corroborating affidavit from a qualified medical expert....
...*1135 The Fourth District's decision in St. Mary's, which serves as the basis for this Court's discretionary review, got it right. In St. Mary's, the personal representative of the deceased's estate filed with St. Mary's Hospital a notice of intent to initiate litigation, pursuant to section 766.102(2), alleging failure to properly deliver medical care to the decedent....
0 red4 yellow61 green1 procedural
CopyCited 50 times | Published | Supreme Court of Florida | 1993 WL 528465
...In McCullough, the Second District held that although a nursing home is not a health care provider as defined under chapter 766, the notice provisions of the Act apply to a negligence action against a nursing home if the professional medical negligence standard of care set forth in section 766.102 applied to the active tortfeasor the agent or employee of the nursing home....
...However, it is only logical that the term refers to defendants in a medical malpractice action who are health care providers as defined in chapter 766 or who, although not expressly included within that *838 class, are vicariously liable for the acts of a health care provider. It is clear that under section 766.102(1) "prospective defendants" in medical negligence actions are "health care providers as defined in [section] 768.50(2)(b):" In any action for recovery of damages based on the death or personal injury of any person in which it is alleg...
...s. 768.50(2)(b), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. § 766.102(1) (emphasis added)....
...action, even if the employer does not fall within the statutory definition of health care provider. As noted by the McCullough court, such a defendant may be vicariously liable under the professional medical negligence standard of care set forth in section 766.102(1) when its agent or employee, who is a health care provider, negligently renders medical care or services....
...Thus, we agree with the McCullough court that the proper test for determining whether a defendant is entitled to notice under section
766.106(2) is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1)....
...See Ragoonanan v. Associates in Obstetrics and Gynecology,
619 So.2d 482 (Fla. 2d DCA 1993). Accordingly, Groth was not required to give Weinstock notice prior to filing the instant action because Weinstock is not a health care provider to which the section
766.102(1) standard of care applies....
...Pinellas to the extent it conflicts herewith. It is so ordered. BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES and HARDING, JJ., concur. NOTES [1] Section 768.50(2)(b), was repealed except to the extent that it is incorporated by reference into section 766.102(1), Florida Statutes (1991)....
0 red0 yellow34 green1 procedural
Cited as authorityKOLODZIEJ (2025)phrase: "rule_authority"
Cited as authorityKing (2025)phrase: "rule_authority"
CopyCited 39 times | Published | Supreme Court of Florida | 1992 WL 110906
...y a "provider of health care." The Second District concluded that blood banks are health care providers, relying on a statutory definition formerly found in section 768.50(2)(b), Florida Statutes (1985) (repealed 1986). As the Second District noted, section 766.102, Florida Statutes (1989), defines the standards of recovery in medical malpractice actions....
...However, I do believe that Southwest is a "provider of health care" as contemplated by the statute of limitations for medical malpractice. Id. The medical malpractice limitations statute, section
95.11(4)(b), does not define "any provider of health care." However, section
766.102(1), Florida Statutes (1991), which sets the standards for recovery in medical malpractice actions, refers to the "negligence of a health care provider as defined in section 768.50(2)(b)." The latter section was enacted in the same bill [4] as the predecessor to section
766.102 [5] and defined health care providers to include blood banks. The fact that section 768.50 was repealed in 1986 does not invalidate the reference to that statute because as noted by the 1989 statutory reviser to section
766.102 "generally a specific cross-reference is unaffected by subsequent amendments to or repeal of the statute....
...When the medical malpractice statute of limitations was passed in 1975, the legislature did not specify whether or not blood banks were health care providers. However, it would be anomalous to conclude that when the legislature passed the predecessor to section 766.102 in 1977 it intended blood banks to be a health care provider subject to the medical malpractice standard of care and yet at the same time be subject to a different nonmedical malpractice statute of limitations because it was not a health care provider....
0 red0 yellow23 green1 procedural
CopyCited 35 times | Published | Supreme Court of Florida | 1995 WL 424171
...Threlkel,
640 So.2d 183, 186 (Fla. 1st DCA 1994). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the question in the affirmative provided the children of the patient first establish that pursuant to the prevailing standard of care set forth in section
766.102, Florida Statutes (1989), a reasonably prudent physician would give such warning to his or her patient in light of all relevant circumstances....
...We conclude that to answer the certified question we must consider two questions related to duty. First, we must determine whether New's physicians had a duty to warn New of the genetically transferable nature of her disease. We find that to make this determination we must apply section 766.102, Florida Statutes (1989), which defines the legal duty owed by a health care provider in a medical malpractice case....
...The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. § 766.102, Fla....
...will be satisfied by warning the patient. Accordingly, we conclude that the trial court erred by dismissing the complaint with prejudice. Whether the Pates can recover for medical malpractice depends upon the prevailing standard of care pursuant to section 766.102....
...tion against each named defendant. For purposes of this section, good faith may be shown to exist if the claimant or his counsel has received a written opinion, which shall not be subject to discovery by an opposing party, of an expert as defined in s. 766.102 that there appears to be evidence of medical negligence.
0 red0 yellow29 green0 procedural
Cited as authorityJONES (2025)phrase: "rule_authority"
Cited as authorityJONES (2024)phrase: "rule_authority"
Cited as authorityDayton (2024)phrase: "rule_authority"
CopyCited 25 times | Published | Supreme Court of Florida | 2006 WL 3093186
...It was only after she "presented the case . . . in a couple of different forums" that she made a determination about whether the defendant met the standard of care. [6] Allowing qualified experts to testify as to the prevailing professional standard of care under section 766.102(1), Florida Statutes (2005), does not permit experts to conduct a survey of a myriad of other experts or colleagues to derive a consensus on the standard of care....
...ving out a special rule. Experts are qualified to render opinions based on their experience, background, and training. In medical malpractice actions, the law imposes additional requirements to ensure that the expert has the necessary expertise. See 766.102(5), Fla. Stat. (2005). It would be *1041 contrary to the purpose of this statute to allow qualified experts to testify that they consulted with unidentified individuals who may or may not meet the requirements of section 766.102(5)....
...I agree with the First District. We should discharge jurisdiction. Moreover, I dissent from the majority's resolution of the issue it does consider, specifically as it applies in the instant case to testimony about the standard of care. The very definition of standard of care in section 766.102(1), Florida Statutes (2005), requires proof of what is "recognized as acceptable and appropriate by reasonably prudent similar health care providers." This obviously requires discussions with similar health care providers....
...ion on standard of care. So I wouldn't be inclined to do that for that reason. The First District agreed with the trial court's assessment: The testimony at issue in this case is an opinion regarding the proper standard of medical care. According to section 766.102(1), Florida Statutes, the prevailing standard of care for a health care provider is "that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by re...
0 red0 yellow25 green0 procedural
Cited as authorityHaynes (2025)phrase: "rule_authority"
Cited as authorityHaynes (2025)phrase: "rule_authority"
CopyCited 19 times | Published | Court of Appeals for the Eleventh Circuit | 2014 A.M.C. 2710, 2014 U.S. App. LEXIS 21375, 2014 WL 5802293
...2007) (finding no clear error in determination that ambulatory
care clinic was not required under applicable standard of care to stock Mannitol,
since evidence suggested that “Mannitol was not a medication normally
administered outside of a hospital setting”); cf. Fla. Stat. Ann. § 766.102 (2013)
(defining standard of care in medical malpractice action “in light of all relevant
surrounding circumstances”)....
0 red0 yellow33 green0 procedural
Cited as authorityGourley (2025)phrase: "rule_authority"
Cited as authorityHERNANDEZ (2025)phrase: "rule_authority"
Cited as authorityMasse (2025)phrase: "rule_authority"
CopyCited 22 times | Published | Florida 2nd District Court of Appeal | 2004 WL 2008478
...Lang-Redway,
840 So.2d 974 (Fla. 2002), the circuit court noted that the test for determining whether the presuit notice requirements of section
766.106 apply is whether the plaintiff must rely on the medical negligence standard of care as set forth in section
766.102(1)....
...by certiorari." Id. at 682 (paraphrasing Heggs,
658 So.2d at 525). Chapter 766 Presuit Requirements in General Chapter 766 presuit screening is required only where the plaintiff must rely upon the medical negligence standard of care as set forth in section
766.102(1)....
...Sunrise Cmty., Inc.,
738 So.2d 420, 421 (Fla. 3d DCA 1999). The Personal Representative persuaded the circuit court that a claim founded on section
393.13(3)(g) can be proved by showing a breach of a standard of care other than medical malpractice under section
766.102(1), namely, section
393.13(4)(c), which provides: "Each client shall receive prompt and appropriate medical treatment and care for physical and mental ailments and for the prevention of any illness or disability....
...ard. The answer in this case is not clearly established. Dr. Fassy and PMA argue that the trial court departed from the essential requirements of law by misinterpreting the significance of section
393.13(4)(c) to establish a standard of care outside section
766.102, Florida Statutes (2002)....
0 red0 yellow17 green0 procedural
Cited as authorityMcCray (2017)phrase: "rule_authority"
Cited as authorityMcCray (2017)phrase: "rule_authority"
CopyCited 20 times | Published | Florida 5th District Court of Appeal | 2002 WL 1389304
...The applicable level of care "for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." § 766.102(1), Fla....
0 red1 yellow14 green0 procedural
Cited "but see"Ritland (2006)phrase: "but see"
Cited as authorityYerks (2017)phrase: "rule_authority"
CopyCited 22 times | Published | Florida 2nd District Court of Appeal | 1991 WL 178109
...cal malpractice" as defined in section
766.106(1)(a), Florida Statutes (1989). The plaintiff's complaint does not seek recovery based on either direct or vicarious liability under the professional standard of care for medical negligence described in section
766.102, Florida Statutes (1989)....
...Azzariti,
573 So.2d 173 (Fla. 2d DCA 1991). The plaintiff argues that chapter 766 does not apply to nursing homes or to statutory claims against nursing homes under chapter 400. We agree that a nursing home is not a "health care provider as defined in s. 768.50(2)(b)." §
766.102(1), Fla. Stat. (1989); see Silva v. Southwest Florida Blood Bank, Inc.,
578 So.2d 503 (Fla. 2d DCA 1991) (section 768.50(2)(b), Florida Statutes (1985), was not repealed to the extent that it is incorporated within section
766.102(1), Florida Statutes (1989))....
...We agree that these notice provisions may occasionally apply to a defendant that is not a health care provider, but we do not find this case to be one of those occasions. The simplest test to determine whether the notice provisions apply to a claim is whether the professional medical negligence standard of care described in section 766.102, Florida Statutes (1989), applies to the active tortfeasor. Although a nursing home is not itself a health care provider for purposes of section 766.102, it may be vicariously liable under that higher standard of care for the acts of some of its agents or employees....
0 red0 yellow11 green0 procedural
Cited as authorityMosley (2011)phrase: "rule_authority"
Cited as authorityLang-Redway (2002)phrase: "rule_authority"
Cited as authorityPreston (2001)phrase: "rule_authority"
CopyCited 18 times | Published | Supreme Court of Florida
...2014) (declining to adopt chapter 2011-183, section 1, Laws of Florida, creating section
90.5021, Florida Statutes (2012), which establishes a "fiduciary lawyer-client privilege," and declining to adopt chapter 2011-233, section 10, Laws of Florida, creating section
766.102(12), Florida Statutes (2012), which pertains to a medical malpractice expert witness provision)....
0 red0 yellow16 green0 procedural
CopyCited 20 times | Published | Florida 4th District Court of Appeal | 1995 WL 25297
...tatutory definition of "prevailing professional standard of care" without using that expression itself, which is potentially confusing." Fla.Std.Jury Instr. (Civ.) 4.2, Comment 1. Section 768.45(1), Florida Statutes, (1985), is currently codified at section 766.102(1), Florida Statutes (1993)....
...el of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. The trial court did not read this statute, but instead, read section 766.102(3)(a), Florida Statutes (1993), pursuant to appellees' request for a special instruction: If the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in...
...if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider. By so charging the jury with the standard in section 766.102(3), the trial court generated that confusion which the standard instruction attempted to avoid by eliminating the "prevailing professional standard of care" language. Furthermore, we conclude that section 766.102(3) is not applicable under these facts [1] and contains other language which is inherently confusing....
...y, appropriate pretrial motions in limine. While some cases require that the pleadings be precluded from amendment, on remand, this case does not require such restriction. REVERSED and REMANDED. GLICKSTEIN, WARNER and PARIENTE, JJ. concur. NOTES [1] Section 766.102(3) may not apply where the alleged negligence arises from a failure to diagnose. Unlike other statutory provisions in which the legislature expressly limited the liability of a health care provider to those situations where damage results from a failure to provide medical care or omission in treatment, section 766.102(3) is silent on this point....
...Therefore, with little guidance from the legislature or predecessor courts, we determine that the plain import of "affirmative medical intervention" requires some act beyond the mere failure to diagnose and render treatment before the plaintiff's burden of proof set forth in section 766.102(3) is triggered. [2] Assuming the execution of a mammogram and performance of a physical examination to be a "diagnostic procedure" constituting an affirmative act of medical intervention, section 766.102(3) is susceptible to varying interpretations....
...ith a second opportunity to prove a breach of the professional standard of care upon showing that the physician's actions were not reasonably foreseeable, even though the action was carried out with in the professional standard of care as defined in section 766.102(1)....
0 red0 yellow8 green0 procedural
Cited as authorityGolian (2005)phrase: "rule_authority"
Cited as authorityHadley (2004)phrase: "rule_authority"
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 1994 WL 630814
...ull adversarial proceeding. Corroboration Required Ms. Archer first argues that the (initial) omission of a corroborating medical opinion was immaterial because the complaint alleged sufficient facts to give rise to a presumption of negligence under section 766.102(4), Florida Statutes (1993), which provides: The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an in...
0 red0 yellow14 green0 procedural
Cited as authorityBerry (2012)phrase: "rule_authority"
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 1992 WL 34638
...A certain percentage of false negatives do occur. [2] Paragraph 15 of the Swains' Second Amended Complaint reads: 15. The Defendant, CALVIN H. CURRY, M.D., was negligent and breached the prevailing professional standard of care for members of his profession, as defined by Section 766.102, Florida Statutes (1988) by failing to properly diagnose and treat his patient, Mary J....
0 red0 yellow14 green2 procedural
Cited as authorityGill (2012)phrase: "rule_authority"
Cited as authorityBauer (2007)phrase: "rule_authority"
CopyCited 16 times | Published | Florida 1st District Court of Appeal | 1996 WL 738386
...In my view, the allegations of that portion of the dismissed complaint were sufficient to establish a duty owed by Dr. Stringer to Nurse Vause and a breach of that duty which resulted in Nurse Vause's death. In 1995, the Florida Supreme Court took occasion to emphasize the provisions of section 766.102, Florida Statutes (1989) defining the legal duty owed by a health care provider in a medical malpractice case....
0 red0 yellow11 green3 procedural
Cited as authorityNeff (2010)phrase: "rule_authority"
Cited as authorityMorillo (2007)phrase: "rule_authority"
CopyCited 14 times | Published | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 149, 2010 Fla. LEXIS 302
...providers], then, in order to prevail, (claimant) must show by the greater weight of the evidence that his or her injury was not within the necessary or reasonably foreseeable results of the treatment or procedure.] NOTES ON USE FOR 402.4a 1. See F.S. 766.102. Instruction 402.4a is derived from F.S. 766.102(1) and is intended to embody the statutory definition of "prevailing professional standard of care" without using that expression itself, which is potentially confusing. 2. The second bracketed paragraph is derived from F.S. 766.102(2)(a) and should be given only in cases involving a claim of negligence in affirmative medical intervention....
...Foreign bodies: [Negligence is the failure to use reasonable care.] The presence of (name of foreign body) in (patient's) body establishes negligence unless (defendant(s)) prove(s) by the greater weight of the evidence that [he] [she] [it] was not negligent. NOTES ON USE FOR 402.4c 1. This instruction is derived from F.S. 766.102(3)....
0 red2 yellow12 green0 procedural
Cited "but see"Risen (2016)phrase: "but see"
Cited "but see"Kessler (2010)phrase: "but see"
CopyCited 13 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 8643, 2010 WL 2382569
...rvices rendered to him. We reject this argument as it flies in the face of logic. "The question in determining if a claim is a medical malpractice claim is whether the plaintiff must rely upon the medical negligence standard of care, as set forth in section
766.102(1)...." Tenet S. Fla. Health Sys.,
991 So.2d at 399. Section
766.102 provides, in pertinent part: (1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s....
0 red0 yellow12 green0 procedural
CopyCited 13 times | Published | Supreme Court of Florida | 27 Fla. L. Weekly Supp. 1030, 2002 Fla. LEXIS 2591, 2002 WL 31769252
...did not cause Mr. Redway's death. However, both claims are based upon a violation of a statutory right instead of a common law right. The six-count complaint does not name or identify any physician or other "health care provider" as a defendant. See § 766.102(1), Fla....
...Medfield, Inc.,
681 So.2d 711 (Fla. 2d DCA 1995). In general, a plaintiff must comply with these conditions if it seeks to make a defendant vicariously liable for the actions of a health care provider under the medical negligence standard of care set forth in section
766.102(1)....
...Properties. In that case, we suggested that a nursing home could be liable under a professional standard of care for the actions of a licensed nurse. See NME Properties,
590 So.2d at 441. Such a nurse is a "health care provider" for the purposes of section
766.102(1), and we continue to believe that a nursing home could be liable, on a common law claim, for the actions of such a licensed nurse....
...The Court concluded that the proper test for determining whether a defendant is entitled to the presuit requirement of notice under section
766.106(2) is "whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1)." [5] Id. at 838. Lang-Redway's cause of action arose in 1997 and is governed by section
766.102(1), which for the purpose of defining "health care provider" incorporates a cross-reference to section 768.50(2)(b), which was repealed in 1986....
...ember of its nursing staff. We disagree. As we have previously held, in order to determine whether the presuit requirements of chapter 766 apply, we look to whether the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1)....
...§
766.106(2)-(3)(a), Fla. Stat. (1997). [4] See NME Properties, Inc. v. McCullough,
590 So.2d 439, 440 n. 1 (Fla. 2d DCA 1991) ("We have recently lamented the difficulty of interpreting chapter 766 because the chapter lacks comprehensive definitions."). [5] Specifically, section
766.102(1), Florida Statutes (1997), defines this standard as follows: In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s....
...2d DCA 1991), which held "although a nursing home is not a health care provider as defined under chapter 766, the notice provisions of the Act apply to a negligence action against a nursing home if the professional medical negligence standard of care set forth in section
766.102 applied to the active tortfeasorthe agent or employee of the nursing home." Weinstock,
629 So.2d at 837 (citing McCullough,
590 So.2d at 441)....
0 red0 yellow11 green0 procedural
Cited as authorityKing (2025)phrase: "rule_authority"
Cited as authorityFerraro (2016)phrase: "rule_authority"
CopyCited 15 times | Published | Florida 2nd District Court of Appeal | 1995 WL 642743
...The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section
766.106(1), Florida Statutes (1989), is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1)....
0 red0 yellow7 green0 procedural
Cited as authorityKing (2025)phrase: "rule_authority"
Cited as authorityCorbo (2007)phrase: "rule_authority"
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 2007 WL 624722
..." Fassy,
884 So.2d at 364 (quoting J.B.,
635 So.2d at 947) (quotation marks omitted) (alteration in original). "Chapter 766 presuit screening is required only where the plaintiff must rely upon the medical negligence standard of care as set forth in section
766.102(1)." Fassy,
884 So.2d at 364....
..."The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section
766.106(1) . . . is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1)." Liles v. P.I.A. Medfield, Inc.,
681 So.2d 711, 712 (Fla. 2d DCA 1995). Section
766.102(1) provides that *369 the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider....
...es, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. Garcia does not dispute that the petitioners are considered health care providers for purposes of the presuit screening requirements of chapter 766. Section
766.102(1) refers to the definition of health care provider in section
766.202(4), which includes physical therapists licensed under chapter 486 and professional association partnerships of physical therapists....
0 red0 yellow13 green0 procedural
Cited as authorityYoung (2020)phrase: "rule_authority"
CopyCited 12 times | Published | Florida 4th District Court of Appeal | 1995 WL 455437
...n vascular surgery and the applicable standard of such care. Thus, the judge refused to allow the jury to consider Dr. Wengler in apportioning fault. The case proceeded to trial. At the close of the evidence the court refused to instruct the jury on section 766.102(4) Florida Statutes (1993). The jury returned a verdict finding Dr. Greene 70% responsible and Dr. Haas 30% responsible and awarded substantial damages to the child and his mother. The judge later denied post trial motions for a new trial or remittitur. Section 766.102(1), Florida Statutes (1993), places on the claimant in a medical malpractice action the burden of "proving by the greater weight of the evidence that the alleged actions of the [physician] represented a breach of the prevailing profes...
...Defendants were expressly foreclosed from defending to the jury on the basis that jointly they were not negligent and that the patient's medical injury resulted from the *1133 negligence of a third party. This was not only unfair, but it was also not required by anything contained in section 766.102....
...We believe that the judge in so doing confused the ultimate burden of proof on the plaintiff in a medical malpractice action with the entirely separate subject of the physicians' defenses and the evidence allowable to sustain these defenses. As we have just seen, subsection (3) of section 766.102 explicitly provides that the claimant must show that the injury resulted from a departure from the applicable standard of care and that it was not within the expected or foreseeable results of the procedure....
...In excluding defendants' evidence in this case, the trial judge accepted the argument of plaintiff that the evidence was not admissible because it is couched in terms of the "possible" rather than the time-honored locution "reasonable medical probability." We note that section 766.102 does not use the formulation "reasonable degree of medical probability." [1] Rather it requires the claimant to prove "by the greater weight of the evidence that the alleged actions of the [physician] represented a breach of the preva...
0 red0 yellow13 green1 procedural
Cited as authorityDayton (2024)phrase: "rule_authority"
CopyCited 12 times | Published | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 20157, 2014 WL 6990548
...cause: (1) the allegations of the complaint arise out of the rendering of, or the failure to render, medical care or services; (2) to prevail on their claims, the Dumigans would be required to address the medical negligence standard of care found in section 766.102(7), Florida Statutes (2013); and (3) the trial court’s finding that the Dumi-gans’ claims against HRMC are for product liability and not medical negligence contradicts well-established Florida law regarding strict liability and healthcare providers....
.... There is no dispute that the Dumigans did not provide presuit notice. . We do not consider the merits of any of the causes of action. Instead, we address only the issue of presuit notice. . The medical malpractice standard of care is set forth in section 766.102(1), which provides: In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s....
...The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. § 766.102(1), Fla....
0 red0 yellow12 green0 procedural
CopyCited 13 times | Published | Florida 1st District Court of Appeal
...nce December 1992. Dr. Oppenheim's first affidavit stated that he considers himself a "medical expert" as defined by section
766.202(5), Florida Statutes (1991). His second affidavit stated that he considered himself a "medical expert" as defined by section
766.102(2)(c)2., Florida Statutes (1991)....
...r treatment of the claimant." This statute provides a safe harbor for the attorney's good faith determination in that "good faith may be shown to exist if the claimant or his counsel has received *578 a written opinion ... of an expert as defined in s.
766.102 that there appears to be evidence of medical negligence." Section
766.102, Florida Statutes (1991), among other things, sets forth the qualifications of the "health care provider" who may testify as an expert in a medical negligence action, and who, pursuant to section
766.104(1), may provide an opinion supporting the attorney's good faith presuit belief that there has been medical negligence. As relevant to the instant action, subparagraph
766.102(2)(c)2. provides that, "[a]ny health care provider may testify as an expert in any action" even though the proposed expert witness does not meet the standards for a "similar health care provider" under subsections
766.102(2)(a) and (b) if such person: to the satisfaction of the court, possesses sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medic...
...Oppenheim does not meet the definition of a medical expert in section
766.202(5) because, at the time he signed his initial and amended affidavits, he was not "duly and regularly engaged in the practice of his profession." In response, the respondents argue that Dr. Oppenheim was qualified under section
766.102(2)(c)2....
...They note that Florida courts have made a distinction between the qualifications of a presuit investigation medical expert under section
766.202(5) and the qualifications of the expert who will be permitted to testify at a subsequent malpractice trial under section
766.102....
...college and has had professional training and experience." The statute then sets forth an alternative qualification by the use of the disjunctive article "or" followed by the noun "one," which can only, grammatically and logically in the context of section 766.102(5), be read in parallel construction with the noun "person." To satisfy this alternative qualification, the expert must be "possessed of special health care knowledge or skill about the subject upon which he is called to testify or provide an opinion." We agree with the trial court below that Dr....
...d. *580 Our task here is made more complex because chapter 766 appears to adopt two different standards for the qualifications of a "medical expert" who may issue an opinion corroborating a claimant's presuit investigationthe standard set forth in section
766.102(2)(c)2, as allowed by section
766.104(1), and that the standard set forth in section
766.202(5). [2] Nonetheless, as applied in the instant case, the standards in both sections
766.202(5) and
766.102(2)(c)2 seek to achieve the same legislative intent. Both statutes are intended to assure that the presuit investigation expert has sufficiently current knowledge of "the prevailing professional standard of care in a given field of medicine," section
766.102(2)(c)2, Florida Statutes (1991), such that the corroborating opinion can form a reasonable basis to support a claim of medical negligence....
...Thus, we reject petitioners' argument that, to qualify as an expert under section
766.202(5), a medical expert must be "regularly engaged in the practice of his profession" at the time the corroborating opinion and affidavit are signed. We believe it is logical that the legislature intended the more specific time period in section
766.102(2)(c)2 to define when the proposed expert must have been "engaged in the practice" under section
766.202(5)....
...Thus, an expert satisfies the section
766.202(5) requirement of engagement in the practice so long as the expert's "active involvement" in the practice occurred "within the five-year period before the incident giving rise to the claim," as provided by section
766.102(2)(c)2. Here, Dr. Oppenheim meets each of the alternative requirements for qualification as a "medical expert" under section
766.202(5). His opinion, therefore, satisfies the requirements of both sections
766.102(2)(c)2....
...in denying the petitioners' motions. PETITION DENIED. JOANOS, J., concurs. WOLF, J., specially concurs with written opinion. WOLF, Judge, specially concurring. While I do not agree with the majority that we should engraft the definition of expert in section
766.102(2)(c)2, Florida Statutes, onto the definition of expert contained in section
766.202(5), Florida Statutes, in light of the ambiguous wording of section
766.202(5), Florida Statutes, I agree with the alternative reason for denying the petition....
...3d DCA 199) (quoting 49 Fla.Jur.2d, Statutes § 137 at 179 (1984)). [2] Other courts have also commented upon the imprecise language in chapter 766, Florida Statutes. See, e.g., Catron v. Roger Bohn, D.C., P.A.,
580 So.2d 814, 817 (Fla. 2d DCA 1991) ("[S]ection
766.102 and many other sections of chapter 766 are appalling in their lack of definition of critical terms and in their total lack of consistency in the manner of use and apparent meaning of those critical ......
0 red0 yellow9 green1 procedural
CopyCited 12 times | Published | Florida 5th District Court of Appeal | 1995 Fla. App. LEXIS 10641, 20 Fla. L. Weekly Fed. D 2304
...Foss,
655 So.2d 1151 (Fla. 5th DCA 1995); Shands Teaching Hospital and Clinics, Inc. v. Barber,
638 So.2d 570 (Fla. 1st DCA 1994); NME Hospitals, Inc. v. Azzariti,
573 So.2d 173 (Fla. 2d DCA 1991). This is apparently a case of first impression in this state. Section
766.102, Florida Statutes (1993) sets out the standards for recovery in medical negligence cases....
0 red0 yellow9 green0 procedural
Cited as authorityPierrot (2013)phrase: "rule_authority"
CopyCited 13 times | Published | Florida 5th District Court of Appeal | 2004 Fla. App. LEXIS 3847, 2004 WL 587660
...(citing Patry v. Capps,
633 So.2d 9, 13 (Fla.1994)). ORMC correctly observes that section
766.203(2), Florida Statutes (2002), provides that a claimant must establish both negligence and causation to support a claim for medical negligence. See also §
766.102(1), Fla....
...P'ship,
645 So.2d 86, 88 (Fla. 3d DCA 1994). Section
766.203(2) simply requires a corroborating opinion from a medical expert, as defined in section
766.202(5); it does not require a corroborating opinion from a medical expert as more narrowly defined by section
766.102(6)....
...college and has had professional training and experience." The statute then sets forth an alternative qualification by the use of the disjunctive article "or" followed by the noun "one," which can only, grammatically and logically in the context of section
766.102(5), be read in parallel construction with the noun "person." To satisfy this alternative qualification, the expert must be "possessed of special health care knowledge or skill about the subject upon which he is called to testify or provide an opinion."
697 So.2d at 579....
...rescription and operation, if approved by joint committee of Board of Nursing and Board of Medicine members). Under the Medical Malpractice Act, a claimant must establish both negligence and causation to support a claim for medical negligence. See §§
766.102,
766.203, Fla....
...nicalities. Archer v. Maddux,
645 So.2d 544, 546 (Fla. 1st DCA 1994). Instead, the presuit notice and screening statute should be construed in a manner that favors access to courts. Patry v. Capps,
633 So.2d 9, 13 (Fla.1994). [4] The 2002 version of section
766.102(6), Florida Statutes, does not delineate the requisite qualifications of the medical expert offering a presuit affidavit....
0 red0 yellow7 green0 procedural
Cited as authorityWirth (2010)phrase: "rule_authority"
Cited as authorityHolden (2010)phrase: "rule_authority"
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 21 Fla. L. Weekly Fed. D 2406
...l care. We considered the same issue in NME Properties, Inc. v. McCullough,
590 So.2d 439, 440 (Fla. 2d DCA 1991). There, in regard to a nursing home (East Manor), we said: Although a nursing home is not itself a health care provider for purposes of section
766.102, it may be vicariously liable under that higher standard of care for the acts of some of its agents or employees....
0 red0 yellow10 green0 procedural
CopyCited 13 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 12923, 2010 WL 3447253
...See Holden,
39 So.3d at 400. Section
766.203(2) requires a corroborating affidavit from a medical expert as defined in section
766.202(6). Section
766.202(6) provides that a medical expert must meet the requirements of an expert witness as set forth in section
766.102. See Holden,
39 So.3d at 399. Section
766.102(9)(a) defines an expert in emergency medicine as a licensed physician who has "had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department." Dr....
...en he first tends to them. Dr. Sichewski testified that he "gained probably more experience on the medical evacuation flights than [he] possibly could in an emergency room." The appellees contend that a physician must fall within the requirements of section 766.102(9) in order to qualify as an emergency medicine expert. [4] However, section 766.102(12) provides that "[t]his section does not limit the power of the trial court to disqualify or qualify an expert witness on grounds other than the qualifications in this section." The appellants argue that section 766.102(12) allowed the trial court to qualify Dr. Sichewski as an expert in emergency medicine on the basis of his extensive experience as both a med-evac physician and a locum tenens emergency room physician. Under section 766.102(12), the trial court could have considered this experience in determining whether Dr....
...s, qualified him to give an opinion as an emergency medicine expert. *878 The appellees rely on this court's decision in Barrio v. Wilson,
779 So.2d 413 (Fla. 2d DCA 2000), in arguing that the trial court was limited to the requirements set forth in section
766.102(9). In Barrio, this court held that a specific provision relating to qualifications for emergency medicine experts in section
766.102 applies over a general provision relating to qualifications for a general health care expert....
...g subsection (12) in determining whether a proffered expert in emergency medicine should be qualified as such. The trial court erred in limiting its consideration of Dr. Sichewski's qualifications as an emergency medicine expert to the strictures of section 766.102(9)....
...Sichewski testified that a large medical group with contracts to staff emergency rooms would hire him to fill their emergency shifts on a temporary basis, i.e., for three days or even a week in some instances. [4] We note that in arguing that Dr. Sichewski did not qualify as an expert in emergency medicine under section 766.102(9), the appellees seemed to treat "substantial professional experience" as a legal issue for the trial court....
...But "substantial professional experience" is "determined by the custom and practice of the manner in which emergency medical coverage is provided in hospital emergency departments in the same or similar localities where the alleged negligence occurred." § 766.102(9)(b)(2)....
0 red0 yellow6 green0 procedural
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2005 WL 1521251
...The prevailing professional standard of care is that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. See § 766.102(1), Fla....
0 red1 yellow11 green0 procedural
Cited "but see"Sweet (2006)phrase: "but see"
Cited as authorityLaw (2021)phrase: "rule_authority"
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 2017 WL 2664320, 2017 Fla. App. LEXIS 8924
...the trial court's order that granted
a motion for rehearing filed by respondent Maria Johnson Lynch and reinstated her
medical malpractice complaint against FOI. Because the expert affidavit submitted by
Lynch did not satisfy the requirements of section 766.102(5)(a), Florida Statutes (2015),
we must grant the petition and quash the trial court's order reinstating the complaint.
Lynch became a patient of FOI after she broke her toe....
... a person duly and regularly engaged in the practice of his or
her profession who holds a health care professional degree
from a university or college and who meets the requirements
of an expert witness as set forth in s. 766.102.
(Emphasis added.) In turn, section 766.102 sets forth the requirements for an expert
witness as follows:
(5) A person may not give expert testimony
concerning the prevailing professional standard of care
unless the person is a h...
...While both
doctors' practices focus primarily on foot and ankle surgery, these two doctors have
different training and practice in different specialties. Therefore, the affidavit from Dr.
Overley could not meet the requirements of the plain language of section 766.102(5),
and the noncomplying affidavit was insufficient on its face to constitute the required
corroboration of reasonable grounds to initiate medical negligence litigation....
...She argues that their different training and different titles
should not matter. However, this argument is based on nothing more than Lynch's
opinion, which cannot supplant the legislative intent evidenced by the amendments
made by the legislature to section 766.102 in 2013.
Prior to 2013, section 766.102(5) provided that if the intended defendant
was a specialist, the corroborating medical expert opinion had to come from a health
care provider who specialized in either the same specialty or "in a similar specialty that
includes the evaluation, diagnosis, or treatment of the medical condition that is the
subject of the claim." § 766.102(5)(a)(1), Fla....
...(2012). In addition, the statute
provided that it did "not limit the power of the trial court to disqualify or qualify an expert
-5-
witness on grounds other than the qualifications in this section." § 766.102(14), Fla.
Stat....
..." to qualify as an expert witness
in a medical malpractice case. See ch. 2013-108, § 2, at 1466, Laws of Fla. The
legislature also deleted the provision giving trial courts the authority to qualify an expert
on grounds other than those listed in section 766.102....
...Finally, we note that while this case was pending, the Florida Supreme
Court issued its decision in In re Amendments to the Florida Evidence Code,
210 So. 3d
1231, 1239 (Fla. 2017), in which it specifically declined to adopt the "same specialty"
amendment to section
766.102(5)(a) "to the extent it is procedural." However, that
decision did not address the constitutionality of the statute, see id....
...2016) (noting that a Florida
Supreme Court rules decision declining to adopt a statutory amendment to the extent it
is procedural does "not vitiate or overturn the statute" and "the statute remains the law
in Florida"). Here, Lynch did not raise the constitutionality of section 766.102(5)(a)(1) in
either the trial court or in her response to FOI's petition.1 Therefore, resolution of that
issue must wait for a case in which the issue is properly raised and argued.
For all of these reasons, we grant F...
0 red0 yellow7 green0 procedural
Cited as authorityHaynes (2025)phrase: "rule_authority"
Cited as authorityHaynes (2025)phrase: "rule_authority"
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 10454, 2010 WL 2795380
...766.202(6)." The latter statute would require such an expert to be "a person duly and regularly engaged in the practice of . . . her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102." According to her CV, Dr....
...ars of nursing experience in both the clinical and academic settings. She served as an operating room staff nurse from 1990 to 2004. She has conducted extensive research in the field of nursing and is widely published in journals and academic texts. Section
766.102(5), Florida Statutes (2009), as referenced in section
766.202(6), defines the "requirements of an expert witness....
..."Health care provider" includes "any person licensed under . . . part I of chapter 464," which is the Nurse Practice Act, sections *117
464.001-.027, Florida Statutes (2009). See §
766.202(4), Fla. Stat. (2009). Although not an issue in this case, we take note that the "licensed provider" referenced in section
766.102(5) does not encompass a universe limited only to Florida licensees. In fact, under the legislative directives concerning presuit investigation, where the trial court finds that the corroborating expert did not meet the requirements of section
766.102(5), the court must report such expert to the Division of Medical Quality Assurance, and "[i]f such medical expert is not a resident of the state, the division shall forward such report to the disciplining authority of that medical expert." §
766.206(5)(a), Fla....
...edure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider." § 766.102(2)(a), Fla....
...(2009). Reaching the central statute as to this dispute, if the health care provider against whom the testimony is offered is "a health care provider other than a specialist or a general practitioner"here, it is the nursing staffthe criteria in section 766.102(5)(c), Florida Statutes (2009), require the expert witness to have "devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action" to one or more of three types of activities enumerated in subsections (5)(c)1.-3....
...atients in circumstances similar to that of [Mr.] Rhodin." The CV lists Dr. Byrne's experience as an Independent Nurse Consultant since 1993. The record thus demonstrates Dr. Byrne's credentials satisfy the substantive requirements, at the least, in section 766.102(5)(c)1....
...not contested whether nurse Byrne "qualifies under 102." Counsel instead challenged Dr. Byrne's qualifications under section
766.202, Florida Statutes (2009), which defines "medical expert" in subsection (6) and cross-references the requirements of section
766.102, Florida Statutes (2009). Although our review of *118 the trial court's ruling has required us to consider the requirements of section
766.102, petitioner's concession at the hearing suggests further focus on Byrne's qualifications "under 202." The term "medical expert" as used in section
766.202(6) is a term of art delineated by that statute....
...First, the person must be "duly and regularly engaged in the practice of his or her profession." Second, the person must hold "a health care professional degree from a university or college." Third, the person must meet the requirements of an expert witness addressed in section 766.102....
...Because Byrne's affidavit did not violate the disclosure requirement, we offer no opinion as to remedy where such a violation is actually made out. 3. Whether Dr. Byrne Was Duly and Regularly Engaged The third claimed departure from the essential requirements of law relates to whether, under section 766.102(5)(c), Florida Statutes (2009), the facts show nurse Byrne "devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action" to at least one of the three alternatives set forth in sub-subsection (5)(c)1.-3....
...i review because it challenges the trial court's finding of sufficient evidence indicating Byrne met the requirements for a "medical expert." See Oken,
23 So.3d at 144-45; Abbey,
16 So.3d at 1055. Respondents note, in any event, that the language in section
766.102(5)(c)2....
...is not so narrow as suggested by Baptist and, in fact, contemplates the instruction of students in a qualifying, accredited school or program. Respondents' interpretation of the statutes avoids a conflict *120 between the statutes by reconciling the "devoted professional time" requirement of section
766.102(5)(c) and the definition of "practice of professional nursing" in section
464.003(3)(a)3., the latter of which defines the practice to include "supervision and teaching" of nursing....
...Given Dr. Byrne's extensive and varied credentials, the trial court did not misconstrue the statutes by concluding that Dr. Byrne is "duly and regularly engaged" in the practice of nursing under section
766.202(6) and satisfies the temporal requirements of section
766.102(5)(c)....
0 red0 yellow7 green0 procedural
Cited as authorityGualtieri (2020)phrase: "rule_authority"
CopyCited 12 times | Published | Florida 4th District Court of Appeal | 2004 WL 736435
...the injury occurred while she was under the care of a hospital employee after receiving dialysis treatment. We disagree and deny the petition. The allegations of the complaint do not seek to state a cause of action for *731 medical negligence under section
766.102, Florida Statutes (2001); therefore, the trial court was correct in denying the motion to dismiss. The test for determining whether the defendant is entitled to the benefit of the presuit screening requirements of section
766.106 is whether the defendant is liable under the medical negligence standard of care set forth in section
766.102(1)....
...The gravamen of Serratore's complaint for negligence does not arise out of the receiving of medical care nor does it require that Serratore prove that the actions of the St. Mary's employee deviated from an accepted standard of medical care, which is required under section 766.102(1)....
...There are no such allegations in the instant case. St. Mary's has failed to demonstrate that the lower court's denial of its motion to dismiss departs from the essential requirements of law and accordingly, we deny the petition. WARNER and GROSS, JJ., concur. NOTES [1] Section 766.102(1) states: In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s....
0 red0 yellow6 green0 procedural
Cited as authorityCampbell (2008)phrase: "rule_authority"
CopyCited 10 times | Published | Florida 5th District Court of Appeal | 1995 Fla. App. LEXIS 9715, 1995 WL 544149
...The Weinstock court found that the presuit provisions of chapter 766 did not apply to a licensed clinical psychologist because psychologists are not included in the various chapter 766 definitions of health care provider. In the instant case, the entity being sued is a hospital, and sections
766.101(1)(b),
766.102(1) and
766.105(1)(b)(3) each define hospitals as health care providers....
...ce provisions may ... apply to a defendant that is not a health care provider," and stated, "[t]he simplest test to determine whether the notice provisions apply to a claim is whether the professional medical negligence standard of care described in section 766.102, Florida Statutes (1989) applies to the active tortfeasor." Id....
...action, even if the employer does not fall within the statutory definition of health care provider. As noted by the McCullough court, such a defendant may be vicariously liable under the professional medical negligence standard of care set forth in section 766.102(1) when its agent or employee, who is a health care provider, negligently renders medical care or services....
...Thus we agree with the McCullough court that the proper test for determining whether a defendant is entitled to notice under section
766.106(2) is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1). Weinstock,
629 So.2d at 838. We believe that Goldman's interpretation of McCullough that the "active" tortfeasor must be a health care provider in order for chapter 766 to apply is incorrect. Section
766.102(1) provides: In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider defined in s....
...for not having the mammography equipment certified or properly calibrated. Ultimately, however, a hospital, even in providing improperly calibrated equipment, is acting through its agents and employees. We conclude that the legislature, in enacting section 766.102, and the Medical Malpractice Reform Act in general, intended that the negligence of the hospital's agents acting in the course of their employment should be treated as the negligence of the hospital, and that the chapter's presuit req...
0 red0 yellow9 green0 procedural
Cited as authorityYoung (2020)phrase: "rule_authority"
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 2006 Fla. App. LEXIS 18333, 2006 WL 3078909
...Halifax Med. Ctr., Inc.,
662 So.2d 367, 371 (Fla. 5th DCA 1995). In order to determine whether the pre-suit requirement of chapter 766 applies, the question is whether the plaintiff must rely upon the medical negligence standard of care, as set forth in section
766.102(1), Florida Statutes (2005), [1] in order to succeed *470 in the plaintiff's case....
0 red1 yellow11 green0 procedural
CopyCited 12 times | Published | Supreme Court of Florida | 25 Fla. L. Weekly Supp. 911, 2000 Fla. LEXIS 2040, 2000 WL 1588051
...QUINCE, J., concurs in result only. NOTES [1] The statute of limitations for medical malpractice actions is two years. See §
95.11(4)(b), Fla. Stat. (1999). However, the 90-day presuit period triggered by the filing of the notice of intent required under section
766.102(6) tolls the limitations period....
0 red0 yellow5 green0 procedural
ApprovedFigueredo (2011)phrase: "approved in"
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 15862, 2011 WL 5108524
...of Am., Inc.,
693 So.2d 66 (Fla. 5th DCA 1997). The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section
766.106 is whether a defendant is liable under the medical negligence standard of care set forth in section
766.102(1)....
...tice presuit requirements or the two-year statute of limitations. We accordingly reverse and remand for a decision on the merits. REVERSED. LAWSON, J., and ZAMBRANO, R.A., Associate Judge, concur. . Chapter 766.02 et seq., Florida Statutes (2003). . Section 766.102(1), Florida Statutes (2008), states: (1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s....
0 red0 yellow15 green0 procedural
Cited as authorityKing (2025)phrase: "rule_authority"
CopyCited 11 times | Published | Florida 3rd District Court of Appeal | 2005 WL 1631086
...st her as expressly mandated by Chapter 766. In fact, and as the most recent amendments to Chapter 766 confirm, the expert opinion affidavit does not suggest that the expert rendering the opinion is qualified to opine as to a nurse practitioner. See § 766.102(6), Fla....
...nurse practitioners"); see also §
766.203(2), Fla. Stat. (2004) (requiring a corroborating opinion from a medical expert as defined in section
766.202(6)); §
766.202(6), Fla. Stat. (2004)(defining a medical expert as one who meets the requirements of section
766.102)....
0 red1 yellow5 green0 procedural
Cited as authorityGualtieri (2020)phrase: "rule_authority"
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 1997 WL 133789
...me as the court deems just under the circumstances. GLICKSTEIN and DELL, JJ., concur. NOTES [1] The pleadings in the trial court show two plaintiffs, Carl Shell, Sr., and Carl Shell, Jr., but the petition in this court names only the father. [2] See § 766.102(1), Fla.Stat.(1995) ("In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s....
0 red0 yellow7 green1 procedural
Cited as authorityOken (2009)phrase: "rule_authority"
Cited as authorityHerber (2008)phrase: "rule_authority"
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2001 WL 1189013
...a prima facie case. Absent the Valcin presumption, appellant correctly notes that appellees failed to prove the first two elements. They did not present any expert testimony that appellant's treatment fell below the appropriate standard of care. See § 766.102, Fla....
0 red0 yellow9 green0 procedural
Cited as authorityTodeschi (2017)phrase: "rule_authority"
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1993 WL 247134
...1st DCA 1985), opinion adopted,
488 So.2d 824 (Fla. 1986). As an example, Professor Ehrhardt observes: "The Florida Legislature has enacted special limitations on the qualifications of experts in medical malpractice actions." Charles W. Ehrhardt, Florida Evidence § 702.1, at 468 (1992). Thus, section
766.102(2)(c), Florida Statutes (1991), restricts the expert testimony of health care providers to "similar health care providers," as defined in section
766.102(2)(a) or (b), as practitioners in the malpractice defendant's speciality or the same school of practice....
...nt training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine... . within the 5-year period before the incident giving rise to the claim." Although section 766.102(2)(c) relaxes the general rule precluding one who is not a *1386 similar health care provider from offering an opinion against one from a different medical discipline or specialty, it is important to observe that the provision require...
...Kirschner, a physician within the same practicing peer group, the JCC's order denying the claim for chiropractic treatment should be reversed and the cause remanded with directions that the claim be approved. NOTES [1] The general rule has been modified by statute in Florida. See § 766.102(2), Fla....
0 red0 yellow8 green0 procedural
Cited as authorityVaughan (2012)phrase: "rule_authority"
Cited as authorityAmos (2009)phrase: "rule_authority"
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 7735, 2010 WL 2178581
...a health care provider: Did the psychologist provide the level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful psychologists? See § 766.102(1), Fla....
0 red0 yellow10 green0 procedural
Cited as authorityMace (2021)phrase: "rule_authority"
Cited as authorityDestephano (2021)phrase: "rule_authority"
CopyCited 9 times | Published | Florida 5th District Court of Appeal | 2001 WL 109105
...NOTES [1] Johnson held that a retail pharmacist has no general duty to warn a customer or his physicians of potential adverse prescription drug reactions. It did not involve the voluntary undertaking theory of liability. [2] §§
465.002,
766.101(1)(b), Fla. Stat. (1999). [3] §
766.102(1), Fla....
0 red0 yellow6 green0 procedural
Cited as authorityOleckna (2015)phrase: "rule_authority"
Cited as authorityMoore (2014)phrase: "rule_authority"
Cited as authorityThompson (2011)phrase: "rule_authority"
CopyCited 8 times | Published | Supreme Court of Florida
witness as set forth in s.
766.102." Section
766.102 sets forth requirements for testifying experts
0 red0 yellow8 green0 procedural
Cited as authorityKOLODZIEJ (2025)phrase: "rule_authority"
CopyCited 10 times | Published | Florida 3rd District Court of Appeal | 2000 WL 227971
...se she was unconscious during the surgery and because a foreign body (i.e. the surgical mesh that was placed in her body as part of the hernia repair), was found in her body during the third surgery, which is prima facie evidence of negligence under section 766.102(4), Florida Statutes (1993)....
...explained injury which is unrelated to the surgical procedure or treatment which justifies the res ipsa inference. See Marrero v. Goldsmith,
486 So.2d 530 (Fla.1986); Borghese v. Bartley,
402 So.2d 475 (Fla. 1st DCA 1981). Moreover, the provision of section
766.102(4) that discovery of a "foreign body" such as surgical paraphernalia *137 is prima facie evidence of negligence, is clearly inapplicable in a case such as this where the mesh was intentionally placed in Miller's body as part of her tr...
...ndant at the time it cause the injury, you may infer that the defendant was negligent unless, taking into consideration all of the evidence in the case, you conclude that the occurrence was not due to any negligence on the part of the defendant. [2] Section 766.102(4) provides in pertinent part: (4) The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was p...
0 red0 yellow4 green0 procedural
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1998 WL 5394
...W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 32 (5th ed.1984); Andrew Clifford Greenberg, Florida Rejects a Tarasoff Duty to Protect, 22 Stetson L.Rev. 239, 270 (1992). The medical negligence standard of recovery is set forth in section 766.102(1), Florida Statutes, which states in part: (1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider ......
...Recently, in Green v. Ross,
691 So.2d 542 (Fla. 2d DCA 1997), the Second District agreed with, and relied upon, the majority opinion in Boynton. Because we believe the amended complaint sufficiently states a cause of action for medical negligence pursuant to section
766.102(1), Florida Statutes, we find it unnecessary to reach the Boynton/Tarasoff "duty to warn" issue....
0 red0 yellow7 green0 procedural
Cited as authorityKuehnle (2010)phrase: "rule_authority"
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1994 WL 257045
...dering of, or the failure to render, medical care or services." A person seeking recovery for injury resulting from medical malpractice must prove that the injury resulted from a breach of the prevailing professional standard of care as set forth in section 766.102(1), Florida Statutes....
...The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section
766.106, Florida Statutes, is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section
766.102(1), Florida Statutes....
0 red0 yellow5 green0 procedural
Cited as authorityAshe (2007)phrase: "rule_authority"
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1995 WL 1636
...s only acting in his role as a distributor of a product when in fact the distribution was incidental to the provision of medical services. While the language of the medical malpractice statute refers to actions for damages resulting from negligence, section 766.102, Florida Statutes (1993), courts of this state have nonetheless rejected the application of strict liability to health care providers alleged to be involved in the distribution of the product....
0 red0 yellow6 green0 procedural
Cited as authorityLeto (2022)phrase: "rule_authority"
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1991 WL 80036
...e have a transcript of the summary judgment hearing to illuminate his reasoning. We must conclude, however, from the arguments presented to us here that Dr. Lusk's affidavit was rejected because the trial judge concluded that under the terms *816 of section 766.102(2)(a), (b), and (c), Florida Statutes (Supp....
...Lusk was not qualified as an expert permitted to testify in a medical negligence action as a "similar health care provider" similar to Dr. Bohn's chiropractic specialty, nor did Dr. Lusk qualify as an expert that was "not a similar health provider" but permitted to testify because of the exception provided in section 766.102(2)(c)2....
...Bohn, it is a disputed question of fact as to when and what treatment he gave to Mr. Catron and whether he timely or ever actually referred Mr. Catron to a neurologist. Under those circumstances, it appears conclusively that Dr. Lusk's affidavit should have been considered pursuant to the provisions of section 766.102. Two provisions of section 766.102 appear to mandate the consideration of Dr. Lusk's affidavit in this case. Subsection 766.102(1) requires that a person seeking damages based on death or personal injury resulting from the negligence of a health care provider must establish that health care provider's negligence based upon proof that the health care provider breached the prevailing standard of care that is recognized by reasonably prudent "similar health care providers" as acceptable and appropriate. Under section 766.102(2)(c)1, a "similar health care provider" may testify as an expert in such an action. The phrase "similar health care provider" is defined in subsection 766.102(2), which is comprised of paragraphs (a) and (b), and a concluding qualifying sentence....
...Paragraph (b) applies to those cases in which the allegedly negligent health care provider is or does hold himself out to be a medical specialist (a "specialist"). Thus, the definition of medical specialist or specialty would appear critical. At this point, it is appropriate for us to note that section 766.102 and many other sections of chapter 766 are appalling in their lack of definition of critical terms and in their total lack of consistency in the manner of use and apparent meaning of those numerous critical and undefined terms....
...A physician certified to limit his practice to a specified field... ." The argument could thus be made that chapter 460, Florida Statutes (1987), which defines and regulates the practice of chiropractic, places a chiropractic physician in the category of a specialist as is contemplated by section 766.102(2)(b) when that section discusses those who practice in a "medical specialty." That would certainly appear to be a proper classification when a chiropractor is compared to a medical doctor limited to a general practice (commonly described in the *818 medical profession as a "G.P.") and normally only considered to be a "generalist" as defined under 766.102(2)(a). Since we find, however, that the admission of Dr. Lusk's affidavit does not depend on whether Dr. Bohn may be considered a medical specialist, it is not necessary for us to determine that the legislature intended by its enactment of section 766.102(2)(b) to characterize the practice of chiropractic as a "medical specialty" as that term is used in subsection 766.102(2)(b). We conclude nevertheless that Dr. Lusk was a "similar health care provider" as contemplated by subsection 766.102(2). Subsection 766.102(2) concludes its provisions with this qualifying statement: "However, if any health care provider described in this paragraph is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a `similar health care provider.'" Under normal methods of statutory construction, we should conclude that that statement was meant to apply only to subsection 766.102(2)(b)....
...The statement refers to "any health care provider described in this paragraph. ..." (Emphasis supplied.) It also speaks to the health care provider treating or diagnosing "for a condition not within his specialty. ..." (Emphasis supplied.) However, limiting that qualifying statement to subsection 766.102(2)(b) and not applying it also to subsection 766.102(2)(a), in our opinion, defies logic and leads to an unreasonable result....
...e could not testify regarding the prevailing professional standard of care for a general practitioner who is diagnosing or treating a condition that is within that specialist's specialty. We, therefore, interpret that statement to apply to all of subsection 766.102(2)....
...tor such as Dr. Bohn in his examination and treatment of Mr. Catron was that Mr. Catron should have been referred to a neurologist for further examination and treatment, then Dr. Lusk, as a neurologist, was, pursuant to that last quoted statement of section 766.102(2), a "similar health care provider." He was, therefore, qualified by section 766.102(2)(c)1 to testify as an expert in this case. *819 Even if our conclusions based upon statutory interpretations so far are incorrect and Dr. Lusk is not a "similar health care provider" authorized by section 766.102(2)(c)1 to testify as an expert in an action against a chiropractor, he would certainly have been qualified to testify by section 766.102(2)(c)2. The pertinent sections of section 766.102(2)(c) provide: (c) The purpose of this subsection is to establish a relative standard of care for various categories and classifications of health care providers....
...Boritz's affidavit and chapter 460 define the practice of chiropractic so as to clearly place it as a "related field of medicine" to neurology thereby qualifying Dr. Lusk to testify. Dr. Lusk, the treating neurologist to whom Mr. Catron was referred by another chiropractor, clearly met the other requirements of section 766.102(2)(c)2....
...context of this case. Since Dr. Lusk's affidavit was competent evidence and created a disputed issue of fact, I concur in the reversal of the summary judgment. I also agree that the legislature has not made our task easy by its choice of language in section 766.102, Florida Statutes (Supp....
...[1] In chapter 766, "medicine" *820 appears to include all "health care providers," and not merely those who practice "medicine" under chapter 458. Thus, I agree that a chiropractor who is licensed under chapter 460 may commit "medical negligence" for purposes of section 766.102, Florida Statutes (Supp. 1988). To the extent that the majority's opinion suggests that an ordinary chiropractor may be a "specialist" for purposes of section 766.102(2)(b), Florida Statutes (Supp. 1988), I disagree. In the absence of statutory definitions, I believe that chiropractic is a "discipline" or "school of practice" and that a typical chiropractor is a generalist subject to the local standard of care defined in section 766.102(2)(a), Florida Statutes (Supp....
...Fla. Admin. Code Rule 21D-15.001(2)(e). If chiropractic is a specialty, I do not know the "discipline" or "school of practice" in which it is a specialty. My primary disagreement with the majority concerns its interpretation of the final sentence in section 766.102(2)(b), Florida Statutes (Supp. 1988). I believe that it applies only to true specialists. I do not agree that any compelling logic requires us to disregard the placement of that sentence and the rule of statutory construction which would limit its application only to section 766.102(2)(b)....
...fessional decision to refer a patient to a specialist. I do not believe that "logic and reason mandate" this result. Although Dr. Lusk's qualifications clearly allow him to testify as an expert in a "related field of medicine," the final sentence of section 766.102(2)(b) does not make these two physicians "similar health care providers." The final sentence of that paragraph states: "However, if any health care provider described in this paragraph is providing treatment or diagnosis for a conditi...
...tion shall be considered a `similar health care provider.'" This language was added to the statute in 1985. Ch. 85-175, § 10, Laws of Fla. I have not located any legislative history which reveals its intended purpose. [3] Subsections (1) and (2) of section 766.102, Florida Statutes (Supp....
...concept of "similar health care provider" into categories of generalists and specialists. The legislature created this division primarily to "establish a relative standard of care for various categories and classifications of health care providers." § 766.102(2)(c), Fla. Stat. (Supp. 1988). In essence, specialists are held to a higher, or at least more specialized, national standard of care while generalists are held to a less specialized, community standard. The final sentence in section 766.102(2)(b) concerns a true specialist who elects to wander outside his or her area of specialty....
...en health care specialties. If a patient goes to a specialist, he or she may fairly anticipate specialized care. To encourage specialists to limit their practice to their true specialties, I believe the legislature has inserted the final sentence in section 766.102(2)(b) to subject a specialist to the national standard of care in any field in which he or she opts to practice....
...se does, render the neurosurgeon a physician who "practice[s] ... in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine," i.e., chiropractic. § 766.102(c)(2), Fla....
...As a result, the majority's opinion will now subject all general practice medical doctors to the national standard of care owed by a specialist concerning the general practitioner's decision to refer a patient to the relevant specialist. I see no statutory or logical basis for this rule of law. NOTES [1] 766.102 Medical negligence; standards of recovery....
0 red0 yellow4 green0 procedural
Cited as authorityBalas (1998)phrase: "rule_authority"
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 9131, 2010 WL 2507279
...a verified written medical expert opinion from a medical expert as defined under section
766.202(6). §
766.203(2). Section
766.202(6), in turn, defines a "medical expert" as someone who meets the requirements of an expert witness as set forth under section
766.102....
...The circuit court conducted a hearing and entered an order granting their motion to dismiss. Yet the order did not contain any reasoning behind the circuit court's determination. The parties, in their argument before this court, cite the circuit court's application of section 766.102(5) as the reason for the dismissal. The pertinent part of section 766.102(5) provides: A person may not give expert testimony concerning the prevailing professional standard of care unless that person is a licensed health care provider and meets the following criteria: (a) If the health care provider agains...
...medical condition that is the subject of the claim and have prior experience treating similar patients[.] (Emphasis added.) Dr. Gu and the Malka Institute contend Dr. Baker fails to meet the "similar specialty" requirement of an expert witness under section 766.102(5) because he is a specialist in the field of emergency medicine, not neurology....
...opinion under section
766.203(2). As the First District noted in Oken v. Williams,
23 So.3d 140, 146 (Fla. 1st DCA 2009), the term "similar specialty" has neither been defined by statute nor case law following the Florida Legislature's amendment of section
766.102(5) in 2003....
...a specialist treating a patient in an emergency department capacity. In light of the policy enunciated in Kukral that the medical malpractice statutory scheme be liberally interpreted,
679 So.2d at 284, we do not read the term "similar specialty" in section
766.102(5) with the same rigidity as the First District did in Oken....
...766. Upon remand, the circuit court shall consider at an evidentiary hearing whether Mr. Holden's corroborating affidavit from an emergency department physician reasonably complied with the "similar specialty" requirement of an expert witness under section 766.102(5). Accordingly, we reverse the order of dismissal and remand for further proceedings. KELLY, J., Concurs. CASANUEVA, C.J., Concurs in result only. NOTES [1] See § 766.102(9)....
0 red0 yellow4 green0 procedural
CopyCited 5 times | Published | Supreme Court of Florida
...yer does not fall
within the statutory definition of health care provider.” Weinstock v. Groth,
629
So. 2d 835, 838 (Fla. 1993). Thus, an employer “may be vicariously liable under
the professional medical negligence standard of care set forth in section
766.102(1)
when its agent or employee, who is a health care provider, negligently renders
medical care or services.” Id.
-5-
safety of the resident and for safety of the other residents....
...The restrictions that
chapter 766 places on medical malpractice plaintiffs’ ability to prove their cases
persist even after a lawsuit is filed, such as providing specific qualifications for
medical experts testifying as to the standard of care. See generally id. § 766.102.
Just last year, we concluded that through chapter 766, the Legislature “has
restricted plaintiffs’ ability to bring medical malpractice claims.” Dockswell, 210
So....
...The Legislature has
further provided that proving a medical malpractice claim requires establishing that
the allegedly negligent act “represented a breach of the prevailing professional
standard of care,” as testified to by a qualified medical expert. Id. § 766.102(1);
see id. § 766.102(5).
In Silva v....
...meeting the patient’s daily needs during the illness.” Id. at 1187. Moreover, “in
order to determine whether the presuit requirements of chapter 766 apply, we look
to whether the plaintiff must rely upon the medical negligence standard of care as
set forth in section 766.102(1).” Integrated Health Care Servs., Inc....
...services.” §
766.106(1)(a), Fla. Stat. (2008). The Legislature also made clear that
proving a medical malpractice claim requires the testimony of a qualified medical
expert that the alleged negligent act breached the prevailing professional standard
of care. See id. §
766.102(1), (5).7 As we stated in Silva, “[i]n the absence of clear
legislative intent to the contrary, we are not at liberty to construe” terms defined in
chapter 766 “so as to deprive plaintiffs of their causes of action.” 601 So....
...We now turn to this case.
III. This Case
7. This requirement does not apply to cases where a foreign body is
discovered, because such a discovery “shall be prima facie evidence of negligence
on the part of the health care provider.” § 766.102(3)(b), Fla....
0 red0 yellow14 green0 procedural
CopyCited 5 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 345, 2016 Fla. LEXIS 1908, 2016 WL 4493536
3d at 546. Relying on Florida case law and section
766.102(1), Florida Statutes (2008), the Second District
0 red0 yellow12 green0 procedural
Cited as authorityJONES (2025)phrase: "rule_authority"
CopyCited 6 times | Published | Florida 5th District Court of Appeal
...a physician who specializes in plastic surgery, offered opinions regarding the medical care provided by Dr. Riggenbach, who specializes in orthopedic surgery. Because Rhodes failed to comply with the requirement of sections
766.203, 776.202(6), and
766.102(5)(a), Florida Statutes (2014), that he provide a written medical expert opinion from a specialist in the same specialty as the defendant health care provider, the complaint should have been dismissed, unless those statutory provisions are found to be unconstitutional for the reasons previously asserted by Respondent....
...Statutory Evolution of Expert Witness Specialty Requirement Prior to July 2013, the presuit statute authorized opinion testimony from an expert witness against the defendant doctor *554 who practiced in "the same or similar specialty " as the defendant doctor. § 766.102(5)(a), Fla. Stat. (2012) (emphasis added). The phrase "similar specialty" was defined as a specialty that included the evaluation and treatment of the medical condition that was the subject of the medical negligence claim. Id. The 2012 version of section 766.102 also allowed the trial court to determine whether the expert was qualified on grounds other than those specified in the statute. Id. § 766.102(14)....
...perience as a medical evacuation flight surgeon in order to admit his testimony, although he was testifying against an emergency room physician.
45 So.3d 873 , 877 (Fla. 2d DCA 2010). The Second District found that under the then-existing version of section
766.102, the emergency medicine experience of the proposed expert witness was sufficient to admit his testimony, as it fell under the "grounds other than the qualifications in this section" language, which in 2010 was found in section
766.102(12)....
...timony is offered; and 2. Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to: a. The active clinical practice of, or consulting with respect to, the same specialty ; § 766.102(5), Fla....
...Unless the trial court finds the relevant statutes unconstitutional, it shall enter an order dismissing Respondent's complaint with prejudice. PETITION GRANTED, ORDER QUASHED, REMANDED WITH INSTRUCTIONS. ORFINGER and SASSO, JJ., concur. The Staff Analysis for the Senate Bill that amended section 766.102 in 2013 specifically explained the effect of the amendment: The bill amends s. 766.102(5), F.S., to limit the class of specialists qualified to offer expert testimony in a medical negligence action against a defendant specialist, to those specialists who practice in the same specialty as the defendant. The bill repeals s. 766.102(14), F.S....
...Adventist Health Systems/Sunbelt, Inc. and reinstating the holding in Barrio v. Wilson . Accordingly, the repeal of the subsection appears to remove the discretion of the court to qualify or disqualify an expert witness on grounds other than the specific qualifications specified in ss. 766.102(5) -(9), F.S....
0 red0 yellow7 green0 procedural
Cited as authorityHaynes (2025)phrase: "rule_authority"
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 2000 WL 1528020
...The Clarkes' negligence action sought to recover damages for injuries suffered by Mrs. Clarke while a patient in Lake Shore Hospital when she fell as she walked from her hospital bed to the bathroom. Because the allegations of the complaint do not seek to state a cause of action for medical negligence under section
766.102, we agree with the trial court that the complaint does not provide a basis to apply the presuit *1252 conditions of section
766.106....
...Medfield, Inc.,
681 So.2d 711, 712 (Fla. 2d DCA 1995)("The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section
766.106 ... is whether the defendant is... liable under the medical negligence standard of care set forth in section
766.102(1)."); Feifer v....
0 red0 yellow2 green0 procedural
Cited as authorityFassy (2004)phrase: "rule_authority"
Cited as authoritySerratore (2004)phrase: "rule_authority"
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1997 WL 14220
...Weintzen would be qualified to testify as a standard of care expert under this version of the statute. But in 1988, the statute was amended and renumbered. The legislature added an additional qualification for expert witnesses who testify in actions against emergency room doctors. Section 766.102(6)(a), Florida Statutes (1988), requires that the expert witness must "have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department." The defense argued, and the trial court agreed, that Dr. Weintzen was not qualified under the amended statute because he had not been assigned to an emergency room within the preceding five years. Section 766.102(6)(a) became effective on February 8, 1988, and applies only to actions arising after the effective date....
0 red0 yellow5 green0 procedural
Cited as authorityWoodson (2015)phrase: "rule_authority"
Cited as authorityOlesky (2013)phrase: "rule_authority"
Cited as authorityDoyle (2004)phrase: "rule_authority"
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1998 WL 64072
...If this statute is vague, it raises procedural due process issues, where, as here, if physicians violate the statute, their licenses to practice their profession are at stake. D'Alemberte v. Anderson,
349 So.2d 164 (Fla.1977). Florida has a body of common law on informed consent which has essentially been codified in section
766.102, Florida Statutes (1995)....
0 red0 yellow5 green0 procedural
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2001 WL 85521
...es. We note that the trial judge finally realized that he had made an error in striking much of Dr. Slysh's testimony, but thought that he was powerless to correct the error given the fact that an appeal had already been filed. [3] The provisions of section 766.102, Florida Statutes (1995) that require the claimant in a medical malpractice action to establish the standard of care by expert testimony does not preclude the introduction of other evidence....
0 red0 yellow8 green0 procedural
Cited as authorityStreet (2024)phrase: "rule_authority"
Cited as authorityWoodson (2015)phrase: "rule_authority"
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2006 WL 3780714
...Rather, this is a simple negligence case involving Allen's contracting of food poisoning after his hospital admission for an unrelated condition. Therefore, any liability of LRMC for Allen's demise is not determined under the medical negligence standard of care established in section 766.102(1)....
0 red0 yellow3 green0 procedural
Cited as authorityOken (2011)phrase: "rule_authority"
Cited as authorityBaldwin (2010)phrase: "rule_authority"
Cited as authorityCintron (2009)phrase: "rule_authority"
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2008 WL 1883565
...With these principles in mind, in reviewing the trial court's decision to deny the requested jury instruction, we take into account not only the requested instruction but all instructions given to the jury. The requested instruction was patterned after section 766.102(4), Florida Statutes (1999), [2] which provides, in part, as follows: The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the bur...
...Ctr., Inc.,
659 So.2d 249, 254 n. 3 (Fla.1995). Affirmed. NOTES [1] The trial court admitted three 8" × 10" photographs into evidence. However, as explained, these photographs have been lost, and therefore, we have examined the postersize copies of these photographs. [2] Section
766.102(4) has been renumbered, and currently appears in section
766.102(3), Florida Statutes (2007).
0 red0 yellow7 green0 procedural
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2007 WL 1687768
...In fact, the legislature has defined standard of care as "that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." § 766.102(1), Fla....
0 red0 yellow4 green0 procedural
Cited as authorityLocastro (2012)phrase: "rule_authority"
Cited as authorityPedro (2012)phrase: "rule_authority"
Cited as authorityGee (2011)phrase: "rule_authority"
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1999 WL 235470
...He emphasized that he was the Chairman of the Tumor Board at the hospital for 15 years and thus dealt with all kinds of cancers. [4] At the close of the testimony of Dr. Singer, defendant moved to strike his entire testimony and for a directed verdict. Defendant argued that Dr. Singer did not satisfy the requirements of section 766.102 because "he does not treat these cases, does not follow these patients, does not have any contact with them from the time of surgery until the time of recurrence." [5] In short the argument was that Dr....
...Singer does not "in any way possess the training, experience or skill as defined by the statute to enable him to offer an opinion on the standard of care on this issue." Elaborating later, defense counsel argued that Dr. Singer was not a qualified health care professional under section 766.102, in that he lacked familiarity with regard to follow up examinations, studies and CT scans for post cervical cancer surgical patients, that he is not a surgeon or board certified in surgery or gynecology....
...lied erroneous legal principles in arriving at its decision." [8]
559 So.2d at 1245. Moreover, to some extent the traditional broad discretion of a trial judge to exclude expert testimony in medical negligence cases is limited by the requirements of section
766.102(1) as to the standard of care....
...When referral is made from one specialty to the other, the question is not whether the referring doctor makes the decision on performing the procedure, but whether the referring doctor possesses the requisite training, experience and knowledge in a `given field of medicine.' § 766.102(2)(c)(2), Fla....
...g in obstetrics and gynecology). All of the foregoing cases to one degree or another involve a medical expert credentialed in one discrete specialty testifying as to the standard of care of a health care provider credentialed in another. To be sure, section 766.102 does not make differing Board Certifications dispositive....
...y, but that hardly makes it inadmissible. When a gynecological-oncological surgeon purports to render diagnostic services to a cancer patient, a physician who is an expert in medical oncology is a "similar health care provider" within the meaning of section 766.102(2) even though he is not a surgeon or a gynecologist....
...reat gynecological patients. Nor is such an oncologist unqualified merely because his practice is consultative, so long as he continues to maintain his specialization in oncology. And just as important, there is nothing in sections
90.702,
90.704 or
766.102 that bars a medical expert from forming an opinion before he has reviewed records such as the patient's chart....
...Singer's testimony was stricken as unqualified the defendant had not yet adduced contrary *126 evidence. But the primary basis for his motion to strike the testimony was that Dr. Singer was not a "similar health care provider" within the meaning of section 766.102(2)(b)....
...Specifically, at the time of his motion he had not produced any evidence that his specialty was dissimilar to Dr. Singer's. In Charlonne v. Rosenthal,
642 So.2d 632 (Fla. 3d DCA 1994), the court held that: "In order for the defendant in a medical negligence action to invoke the protection of paragraph
766.102(2)(b), it is necessary for the defendant to make a record showing that he fits within the statutory definition....
...nder an opinion as to whether a gynecological-oncological surgeon fell below the standard of care in failing to diagnose a recurrence of cancer. On the other hand there was no direct evidence as to whether defendant was entitled to the protection of section 766.102(2)(b)....
...Singer's qualifications as an expert witness in the subject of the case. Nor did defendant make any pretrial motion in limine to exclude the testimony of Dr. Singer. [2] Defendant apparently objected to Dr. Singer testifying before he took the stand, but our record does not include that part of the transcript. [3] See § 766.102(2)(b), Fla....
...Is certified by the appropriate American board in the same specialty."). [4] A Tumor Board is a committee of multidisciplinary physician specialistssurgeons, medical oncologists, gynecologists, pathologists, and radiologists,designated to review all cancer cases presented in the hospital. [5] See § 766.102(1), Fla....
...In that case the cancer was discovered in the patient's breast, while in the present case the cancer was discovered in the patient's cervix. We do not regard that difference as either legally or factually important. [11] See §§
90.702,
90.704 and
766.102....
0 red0 yellow6 green0 procedural
Cited as authorityKortum (2010)phrase: "rule_authority"
Cited as authorityLoadholtz (2003)phrase: "rule_authority"
Cited as authorityLinder (2002)phrase: "rule_authority"
CopyCited 3 times | Published | Supreme Court of Florida | 2014 WL 289984
...assessment of the patient’s medical history,” which would mean the
recommendation would be made “in a manner consistent with this section.” Of
course, such a recommendation may fall outside “the prevailing professional
standard of care for that health care provider.” § 766.102(1), Fla....
0 red0 yellow21 green0 procedural
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2008 WL 4224382
...sing out of the rendering of, or the failure to render, medical care or services." The question in determining if a claim is a medical malpractice claim is whether the plaintiff must rely upon the medical negligence standard of care, as set forth in section 766.102(1), Florida Statutes (2007), in order to prove the case....
0 red0 yellow5 green0 procedural
Cited as authoritySimmons (2018)phrase: "rule_authority"
Cited as authorityBurns (2011)phrase: "rule_authority"
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2003 WL 21180087
...er of fact. See Fla. Power & Light v. Periera,
705 So.2d 1359, 1361 (Fla.1998). Finally, Dr. Isasi contends that Dr. May was not qualified to critique his care and treatment where Dr. May is not a "similar health care provider" within the meaning of section
766.102(2), Florida Statutes (1995)....
...Where a defendant is a specialist, then an expert presented to testify regarding the standard of care must be a "`similar health care provider'... who (1)[i]s trained and experienced in the same specialty; and (2)[i]s certified by the appropriate American board in the same specialty." § 766.102(2)(b)....
...standard of care in a given field of medicine. Such *968 training, experience, or knowledge must be as a result of the active involvement in the practice or teaching of medicine within the 5-year period before the incident giving rise to the claim. § 766.102(2)(c)2 (emphasis added)....
0 red0 yellow5 green0 procedural
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 28 Fla. L. Weekly Fed. D 2545
...Therefore, we grant the Petitioner/Defendant's writ of certiorari, quash the trial court's order, and remand with directions to grant the motion to dismiss. WOLF, C.J., LEWIS and POLSTON, JJ., concur. NOTES [1] "Section 768.50(2)(b) was repealed except to the extent that it is incorporated by reference into section
766.102(1)." Weinstock,
629 So.2d at 837 n....
0 red0 yellow2 green0 procedural
Cited as authorityFitchner (2007)phrase: "rule_authority"
CopyCited 3 times | Published | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 494, 2014 WL 3361813, 2014 Fla. LEXIS 2153
...physician, (2) a breach of that duty, and (3) causation. See Gooding v. University
Hosp. Bldg., Inc.,
445 So. 2d 1015, 1018 (Fla. 1984) (citing Wale v. Barnes,
278
So. 2d 601, 603 (Fla. 1973)). The duty element requires a physician to act within
the standard of professional care. See §
766.102, Fla....
...In short, it is to provide
the care that a reasonably prudent physician would provide. See Pate v. Threlkel,
661 So. 2d 278, 280 (Fla. 1995). A physician breaches that duty when he or she
does not provide the care that a reasonably prudent physician would provide. See
§
766.102, Fla....
0 red0 yellow17 green0 procedural
Cited as authorityHaynes (2025)phrase: "rule_authority"
Cited as authorityHaynes (2025)phrase: "rule_authority"
Cited as authorityAlcott (2025)phrase: "rule_authority"
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2004 Fla. App. LEXIS 54, 2004 WL 34512
...In the first place, a claim is one for medical negligence for purposes of section
766.106 only if it is one as to which, to recover, the plaintiff must establish that the defendant failed to meet the "medical negligence standard of care as set forth in section
766.102(1)." Integrated Health Care Servs., Inc. v. Lang-Redway,
840 So.2d 974, 980 (Fla.2002). Accord Broadway v. Bay Hosp., Inc.,
638 So.2d 176 (Fla. 1st DCA 1994). According to section
766.102(1), a plaintiff must carry such a burden to recover only if "death or injury resulted from the negligence of a health care provider as defined in s. 768.50(2)(b)." §
766.102(1), Fla....
0 red0 yellow4 green0 procedural
Cited as authorityKuehnle (2010)phrase: "rule_authority"
Cited as authorityWillis (2007)phrase: "rule_authority"
Cited as authorityWelker (2005)phrase: "rule_authority"
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2011 WL 5964360, 2011 Fla. App. LEXIS 18986
...Palms West Hospital (Palms West) petitions this court for a writ of certiorari following the circuit court’s denial of its motion to dismiss respondent Charles H. Burns’ third amended complaint for failure to follow pre-suit procedures under the Florida Medical Malpractice Act. See § 766.102, Fla....
...[A] claim for medical malpractice [is] “a claim, arising out of the rendering of, or the failure to render, medical care or services.” The question in determining if a claim is a medical malpractice claim is whether the plaintiff must rely upon the medical negligence standard of care, as set forth in section 766.102(1), Florida Statutes (2007), in order to prove the case....
0 red0 yellow7 green0 procedural
Cited as authorityMacauley (2021)phrase: "rule_authority"
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1997 WL 133934
...riod provided for filing suit." Kukral v. Mekras,
679 So.2d 278, 283 (Fla. 1996); Royle v. Florida Hospital-East Orlando,
679 So.2d 1209, 1211-12 (Fla. 5th DCA 1996). [2] The definitions from repealed section 768.50(2)(b) have been incorporated into section
766.102(1), Florida Statutes (1991).
0 red0 yellow2 green0 procedural
Cited as authorityLargie (2005)phrase: "rule_authority"
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1995 WL 366340
...Although the word "sanction" appears in the title to this rule, it is not used in its text. The drafters employed it as an abbreviated reference to some of the rule's provisions, but it is not very rigorous terminology. I suggest that the venerable "remedy" is much better and more accurate. [6] See, e.g., §§
627.737(2) and
766.102, Fla. Stat. (1993). Note that section
766.102(6)(c) does not directly require the testimony of an expert witness so much as it relates instead to the qualifications of the witness....
0 red0 yellow2 green0 procedural
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 14590, 2009 WL 3103853
...Respondent filed a formal complaint basically alleging the same facts contained in the notice. Petitioners filed a Motion of the Defendants to Dismiss Pursuant to Section
766.206, Fla. Stat., alleging that Dr. Foster's corroborating affidavit was legally insufficient to satisfy the presuit requirement outlined in section
766.102, Florida Statutes (2007)....
...Section
766.202(6) defines a medical expert as: [A] person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s.
766.102. The question before this court is whether Dr. Foster meets the qualifications as an expert witness pursuant to section
766.102. Specifically, petitioners assert that the trial court erred when it denied their motion to dismiss and concluded that respondent's expert was qualified as a medical expert under section
766.102(5), Florida Statutes, to corroborate respondent's claim....
...postjudgment because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance." Parkway Bank v. Fort Myers Armature Works, Inc.,
658 So.2d 646, 649 (Fla. 2d DCA 1995). In 2003, the Florida Legislature amended section
766.102 with respect to the requirements that must be possessed by an expert witness in a medical malpractice case. Ch. 2003-416, § 48, at 4086, Laws of Fla. Prior to the 2003 amendment, section
766.102(2)(b) and (c) stated in pertinent part: (b) If the health care provider whose negligence is claimed to have created the cause of action is certified by the appropriate American board as a specialist, is trained and experienced in a me...
...medicine. Such training, experience or knowledge must be as a result of the active involvement in the practice or teaching of medicine within the 5-year period before the incident giving rise to the claim. (Emphasis added). After the 2003 amendment, section 766.102(5), Florida Statutes, now states in pertinent part: A person may not give expert testimony concerning the prevailing professional standard of care unless that person is a *146 licensed health care provider and meets the following crit...
...imilar health care provider but, to the satisfaction of the court, possessed sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine. § 766.102(2)(c)(2), Fla....
...o give a presuit corroborating affidavit. Rather, the expert witness must specialize in the same specialty as the defendant or specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition at issue. § 766.102(5), Fla....
...In this case, petitioner Oken, "the health care provider against whom ... the testimony is offered," is a board certified cardiologist. There is no dispute that respondent's expert does not specialize in cardiology. Thus, to corroborate respondent's claim under section 766.102(5)(a)(1), Florida Statutes, respondent's expert must specialize "in a 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...
...enses possess similar, or identical, credentials and expertise in the defendant's specialty. J. Dudley Goodlette, Chairman, Report of House Select Committee on Medical Liability Insurance at 58 (March 2003) (emphasis added). The pre-2003 language of section 766.102 contained a "catch-all" provision that would allow a court to admit the testimony of an expert who: Is not a similar health care provider ......
...but, to the satisfaction of the court, possesses sufficient training, experience, and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. § 766.102(2)(c)2., Fla. Stat. (2002). When the Legislature altered the language of section 766.102, it replaced the phrase "similar health care provider" with the phrase "same or similar specialty" and eliminated the former "catch-all" provision....
...To allow a family medicine physician, or an emergency medicine physician, to testify against a cardiologist simply because such physicians evaluate patients with suspected cardiac problems would contradict the Legislature's clear intent in revising section 766.102 and departs from the essential requirements of law....
...d injects the judiciary into adversarial territory heretofore untraveled, I am compelled to dissent. Analysis of Majority Opinion General Comments I do not take issue with the majority opinion's assertion about the public policy behind the intent of section 766.102, Florida Statutes (2007)....
...lt. Substantive Deficiencies A correct determination of this petition depends upon whether Respondent's expert, Dr. Foster, specializes in a similar specialty as Dr. Oken and has extensive related experience in the field under review as specified by section 766.102(5)(a)1.-2.a., Florida Statutes (2007)....
...The Legislature has not defined "similar specialty," but the majority opinion, relying upon Internet information not contained in the record as its only factual basis, makes a factual determination that Dr. Foster is not engaged in a similar specialty and is not qualified to testify and meet pre-suit requirements under section 766.102(5)(a), Florida Statutes (2007)....
0 red0 yellow3 green0 procedural
Cited as authorityOken (2011)phrase: "rule_authority"
Cited as authorityMosley (2011)phrase: "rule_authority"
Cited as authorityHolden (2010)phrase: "rule_authority"
CopyCited 4 times | Published | District Court, N.D. Florida | 2009 U.S. Dist. LEXIS 95302, 2009 WL 3163183
...Bldg., Inc.,
445 So.2d 1015, 1018 (Fla.1984)); see also Torres v. Sullivan,
903 So.2d 1064, 1067 (Fla. 2d DCA 2005). The plaintiff bears the burden of proving a breach of the "prevailing professional standard of care" for a particular health care provider "by the greater weight of the evidence." Fla. Stat. §
766.102(1)....
...Threlkel,
661 So.2d 278, 281 (Fla. 1995). Although the state law provides the criteria for determining whether a person is competent to give expert testimony concerning the prevailing standard of care for a health care provider, [15] see Fla. Stat. §
766.102(5), there is an exception to this requirement in situations where "only the *1289 exercise of common sense and ordinary judgment are required." Stepien v....
0 red0 yellow5 green0 procedural
Cited as authorityMd (2010)phrase: "rule_authority"
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1994 WL 617187
...The judgments under review run counter to this rule of construction. The record shows that Maldonado's expert was qualified to render an opinion as to defendants' negligence in compliance with the requirements of section
766.202(5) defining "medical expert." Contrary to defendants' contention, section
766.102(6), Florida Statutes (1989), does not delineate the requisite qualifications of the expert offering the presuit affidavit....
...& Clinics, Inc. v. Barber,
638 So.2d 570 (Fla. 1st DCA 1994); Ragoonanan v. Associates in Obstetrics & Gynecology,
619 So.2d 482, 484 (Fla. 2d DCA 1993); Stebilla v. Mussallem,
595 So.2d 136 (Fla. 5th DCA), review denied,
604 So.2d 487 (Fla. 1992). Section
766.102(6) concerning the admissibility of expert testimony in cases involving emergency medical services need not be read in pari materia with sections
766.202(5), and
766.203(2)....
...1st DCA), review denied,
624 So.2d 267 (Fla. 1993). The plain words of section
766.203(2) require a corroborating opinion from a medical expert as defined in section
766.202(5); it does not require that claimant submit an affidavit from an expert as described in sections
766.102(6)(a) and (b)....
...d that exclusion of psychologists from Chapter 766 definitions *89 of health care provider evidences a legislative intent that psychologists not be classified as health care providers). Moreover, we may not engraft the more stringent requirements of section
766.102(6) onto sections
766.202(5) and
766.203(2) in contravention of the express language of the statute....
...[6] Although the record reveals that Cedars appears to have waived the issue of Maldonado's presuit compliance by failing to raise timely the issue, Ingersoll v. Hoffman,
589 So.2d 223 (Fla. 1991), it is unnecessary to resolve that issue because Maldonado has not raised that issue on appeal. [7] Section
766.102(6)(a) requires that the testifying medical expert in a case involving emergency medical services must "have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department." We express no opinion whether the expert rendering the opinion at trial must be qualified under section
766.102(6)....
0 red0 yellow5 green0 procedural
AdoptedLargie (2005)phrase: "adopted by"
Cited as authorityLargie (2005)phrase: "rule_authority"
Cited as authorityApostolico (2004)phrase: "rule_authority"
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 3868, 2015 WL 1540230
...Dellerson, the affiant to the verified written medical expert opinion attached to the Estate’s notice of intent to initiate litigation, does not qualify as an expert because his credentials do not constitute substantial professional experience in providing emergency medical services under section 766.102(9)....
0 red0 yellow5 green0 procedural
Cited as authorityHill (2026)phrase: "rule_authority"
Cited as authorityHUTCHINS (2024)phrase: "rule_authority"
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1996 WL 124682
...diagnosis, treatment *1097 or care. We find this court's decision in NME Properties, Inc. v. McCullough,
590 So.2d 439, 440 (Fla. 2d DCA 1991), controlling. There we said: Although a nursing home is not itself a health care provider for purposes of section
766.102, it may be vicariously liable under that higher standard of care for the acts of some of its agents or employees....
0 red0 yellow2 green0 procedural
Cited as authorityCineus (2022)phrase: "rule_authority"
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2013 WL 3835836, 2013 Fla. App. LEXIS 11737
...been performed. The crux of a failure-to-diagnose case is nonfeasance in the determination of the cause of one’s illness when medical personnel should have been able to do so if certain diagnostic tools, including examinations, had been used. See § 766.102(4), Fla....
0 red1 yellow5 green0 procedural
Cited as authorityGutierrez (2015)phrase: "rule_authority"
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2006 WL 739775
...1st DCA 2001) (holding that a psychotherapist did not owe a legal duty to an outpatient client who committed suicide notwithstanding the fact that the plaintiff's expert opined that the psychotherapist had failed to act in accordance with the relevant standard of care). Section 766.102(1), Florida Statutes (2004), codifies this duty, stating that a health care provider has a duty to act in accordance with the prevailing professional standard of care for that health care provider....
...The prevailing professional standard of care for a given health care provider "shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." § 766.102(1)....
0 red0 yellow3 green0 procedural
Cited as authorityGranicz (2014)phrase: "rule_authority"
Cited as authorityPerez (2012)phrase: "rule_authority"
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 2008 WL 2338516
...Lang-Redway,
840 So.2d 974 (Fla.2002), a plaintiff must comply with the pre-suit requirements of chapter 766 "if it seeks to make a defendant vicariously liable for the actions of a health care provider under the medical negligence standard of care set forth in section
766.102(1)." In this amended complaint, the plaintiffs/appellants sought to make the defendant/appellee hospital vicariously liable for the actions of its health care providers under a medical negligence standard of care, as is clear from the emphasized portion of the above-quoted paragraph from the amended complaint, which is identical to the medical negligence standard of care set forth in section
766.102(1), Florida Statutes....
0 red0 yellow3 green0 procedural
Cited as authorityGrasso (2015)phrase: "rule_authority"
Cited as authorityCaldwell (2013)phrase: "rule_authority"
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2007 WL 412431
standard of medical care, which is required under section
766.102(1)."); Garcia v. Psychiatric Insts. of Am.
0 red0 yellow5 green0 procedural
Cited as authorityDumigan (2014)phrase: "rule_authority"
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2004 WL 1809862
reasonably careful physician would provide. See §
766.102(1), Fla. Stat. (2003); Fla. Std. Jury Instr. 4
CopyCited 4 times | Published | Supreme Court of Florida
changes to the Florida Evidence Code and to section
766.102, Florida Statutes (2012). We have jurisdiction
0 red0 yellow2 green0 procedural
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2002 WL 1939941
of care of an emergency medicine physician. Section
766.102(6)(a) provides that in malpractice actions
0 red0 yellow2 green2 procedural
Cited as authorityBowen (2012)phrase: "rule_authority"
Cited as authorityKavanaugh (2004)phrase: "rule_authority"
Review deniedBowen (2012)phrase: "review denied"
CopyCited 3 times | Published | District Court of Appeal of Florida | 1997 WL 794482
perform a spinal tap, even by a neurosurgeon. See §
766.102(2)(c), Fla. Stat, Wright v. Schulte, 441 So.2d
0 red0 yellow4 green0 procedural
Cited as authorityE.B. (1999)phrase: "rule_authority"
Cited as authorityMN (1998)phrase: "rule_authority"
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2004 WL 2330812
proper standard of medical care. According to section
766.102(1), Florida Statutes, the prevailing standard
0 red0 yellow3 green0 procedural
Cited as authorityLinn (2006)phrase: "rule_authority"
CopyCited 5 times | Published | District Court of Appeal of Florida | 1999 WL 741115
3 red0 yellow3 green1 procedural
Receded fromGray (2005)phrase: "receded from"
Receded fromBurke (2005)phrase: "receding from"
CopyCited 4 times | Published | District Court of Appeal of Florida | 1998 WL 422317
satisfy the expert witness requirements of section
766.102(2)(b), Florida Statutes (1991). For the reasons
0 red0 yellow1 green0 procedural
CopyCited 4 times | Published | District Court of Appeal of Florida | 1994 WL 380919
0 red0 yellow1 green0 procedural
Cited as authorityLiles (1995)phrase: "rule_authority"
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2008 Fla. App. LEXIS 11593, 2008 WL 2906956
expert to meet the requirements contained in section
766.102. Because Drs. Paley and Katt are emergency
0 red0 yellow5 green0 procedural
Cited as authorityKirkpatrick (2023)phrase: "rule_authority"
Cited as authorityKalmanowitz (2013)phrase: "rule_authority"
Cited as authorityWoodburn (2011)phrase: "rule_authority"
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2002 WL 53899
"similar health care provider," as defined in section
766.102(2)(b), Florida Statutes (2000). See Meyer v
0 red0 yellow2 green0 procedural
Cited as authorityShartz (2013)phrase: "rule_authority"
Cited as authorityHarris (2009)phrase: "rule_authority"
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2013 WL 4525599, 2013 Fla. App. LEXIS 13669
written opinion from an expert — as defined by section
766.102, Florida Statutes (2009) — to support the negligence
0 red0 yellow4 green0 procedural
Cited as authorityHaynes (2025)phrase: "rule_authority"
Cited as authorityHaynes (2025)phrase: "rule_authority"
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2001 WL 228024
0 red0 yellow1 green0 procedural
Cited as authorityLang-Redway (2002)phrase: "rule_authority"
CopyCited 3 times | Published | District Court of Appeal of Florida | 1991 WL 63770
defined blood banks as health care providers, §
766.102(1), Fla. Stat. (1989), and has declared the services
0 red0 yellow1 green0 procedural
Cited as authoritySilva (1992)phrase: "rule_authority"
CopyCited 2 times | Published | District Court of Appeal of Florida | 1996 WL 539833
recovery under medical negligence is addressed in section
766.102(1), which embraces: "any action for recovery
0 red0 yellow2 green0 procedural
Cited as authorityBurns (2011)phrase: "rule_authority"
Cited as authoritySolomon (2002)phrase: "rule_authority"
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2000 WL 1299347
but we conclude that the error was harmless. Section
766.102(6)(a), Florida Statutes (1997), provides in
0 red0 yellow2 green0 procedural
Cited as authorityHaynes (2025)phrase: "rule_authority"
Cited as authorityHaynes (2025)phrase: "rule_authority"
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2008 WL 34813
before the jury. The second issue involves section
766.102(3), Florida Statutes (2007). The appellants
0 red0 yellow2 green0 procedural
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2007 WL 3144829
diagnosis, treatment, and care. In addition, in section
766.102(1), Florida Statutes (2003), entitled "Medical
0 red0 yellow2 green0 procedural
Cited as authorityWalton (2025)phrase: "rule_authority"
Cited as authorityFitchner (2012)phrase: "rule_authority"
CopyCited 4 times | Published | District Court of Appeal of Florida | 1996 WL 149028
this purpose because it is referred to in section
766.102(1), Fla.Stat. (1995). See Weinstock v. Groth
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2000 WL 390284
care of emergency room physicians pursuant to Section
766.102(6)(a)(b), Florida Statutes (1997).[1] The court
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 2005 WL 473915
medical conditions at issue in the case. See §
766.102(5)(a)(1), Fla. Stat. (2003) (setting forth requirements
3 red0 yellow6 green0 procedural
SupersededSchuit (2016)phrase: "superseded by"
SupersededSchuit (2016)phrase: "superseded by"
SupersededSchuit (2016)phrase: "superseded by"
CopyCited 2 times | Published | District Court of Appeal of Florida | 19 Fla. L. Weekly Fed. D 1941
enacted specific criteria for expert witnesses. §
766.102(2), Fla. Stat. (1993).[1] The statute allows expert
0 red0 yellow1 green0 procedural
Cited as authorityMeyer (1999)phrase: "rule_authority"
CopyCited 2 times | Published | District Court of Appeal of Florida | 1992 WL 322993
care provider."[1] The court below relied on section
766.102 which sets forth the standards of recovery
0 red0 yellow1 green0 procedural
Cited as authorityWeinstock (1993)phrase: "rule_authority"
CopyCited 2 times | Published | Court of Appeals for the Eleventh Circuit | 1993 U.S. App. LEXIS 19190
professional medical negligence standard of care at §
766.102 applies to alleged tortfeasor). We believe
0 red0 yellow1 green0 procedural
Cited as authorityJB (1994)phrase: "rule_authority"
CopyCited 2 times | Published | Florida 5th District Court of Appeal
meet the statutory presuit requirements of section
766.102(5)(a)1., Florida Statutes (2013), because none
0 red0 yellow1 green0 procedural
Cited as authorityDaddono (2022)phrase: "rule_authority"
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2006 WL 3523640
medical negligence litigation pursuant to section
766.102, "[C]orroboration of reasonable grounds to
0 red0 yellow1 green0 procedural
Cited as authorityMorillo (2007)phrase: "rule_authority"
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2008 WL 4643122
fasciitis. On October 2, 2006, pursuant to section
766.102, Gonzalez served Dr. Tracy and Westchester
CopyCited 1 times | Published | District Court of Appeal of Florida
to initiate litigation did not comply with section
766.102(5)(a), Florida Statutes (2012), which mandates
0 red0 yellow2 green0 procedural
Cited as authorityKOLODZIEJ (2025)phrase: "rule_authority"
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 18779
prejudice to raise the issue of noncompliance with section
766.102 if a revised complaint or discovery more clearly
0 red0 yellow2 green0 procedural
CopyCited 1 times | Published | District Court, M.D. Florida | 2000 U.S. Dist. LEXIS 20070, 2000 WL 1742037
for medical malpractice under Florida law, section
766.102 of the Florida Statutes. Upon due consideration
0 red0 yellow2 green0 procedural
Cited as authorityBenson (2025)phrase: "rule_authority"
Cited as authorityMorgan (2005)phrase: "rule_authority"
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2005 WL 1523362
requirement of a trial expert witness under section
766.102. Where the malpractice claim is against emergency
CopyCited 2 times | Published | District Court of Appeal of Florida | 1997 WL 430003
766 definitions of "health care provider." See §
766.102; § 768.50(2), Fla.Stat. (1985);[4] §
766.101(1)(b);[5]
CopyCited 2 times | Published | District Court of Appeal of Florida | 1992 WL 29052
care, we conclude that there was no error. See §
766.102(2)(c)2, Fla. Stat. (1989). Also, there was additional
CopyCited 1 times | Published | Supreme Court of Florida | 2013 WL 2349287
USE FOR 402.4a 1. See F.S.
766.102. Instruction 402.4a is derived from F.S.
766.102(1) and is intended to
0 red0 yellow1 green0 procedural
CopyCited 1 times | Published | District Court of Appeal of Florida
the prevailing professional standard of care,” §
766.102(1), Fla. Stat. (2013); and (ii) Simmons’s alleged
0 red0 yellow1 green0 procedural
CopyCited 1 times | Published | Florida 5th District Court of Appeal
similar specialty " as the defendant doctor. §
766.102(5)(a), Fla. Stat. (2012) (emphasis added). The
CopyCited 1 times | District Court of Appeal of Florida
... is whether a defendant is liable under the medical negligence standard of care set forth in section
766.102(1).” (internal citations omitted)); Univ. of Miami v. Bloomer,
337 So. 3d 838, 840 (Fla. 3d DCA 2022) (observing that “a court must look beyond [the] label proffered and ... ...
CopyCited 1 times | District Court of Appeal of Florida
... 2018) (examining de novo whether an expert’s unrefuted qualifications met the requirements of section
766.102, Florida Statutes). This appeal does not rest on a factual dispute of statements, qualifications of the experts, or the underlying facts of the case. It rests on the trial court’s ...
CopyCited 1 times | District Court of Appeal of Florida
... to dismiss on the basis of the qualifications of a corroborating expert witness under subsections
766.102(5)–(9), and (12), Florida Statutes[.]” Fla. R. App. P. 9.130(a)(3)(H) (emphasis added). The referenced statutory provisions address the necessary qualifications of persons seeking to ...
CopyCited 1 times | District Court of Appeal of Florida
... specialty as the health care provider against whom or on whose behalf the testimony is offered." §
766.102(5)(a)1. While "same specialty" is not defined, "Florida courts have previously decided that 'same specialty' is to be taken literally and is not synonymous with physicians with different ...
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2000 WL 1153999
Appellant's expert was not qualified under section
766.102(6)(a)(b), Florida Statutes, to render an opinion
0 red0 yellow0 green1 procedural
CopyCited 1 times | District Court of Appeal of Florida
... Dr. Burley because Dr. Kane’s affidavit failed to meet the “same specialty” requirement in section
766.102(5)(a). The court also found that Dr. Kane had the ability to render an opinion as to whether Nurse Rice’s performance fell below the applicable standard of care, but she did not ...
CopyCited 1 times | District Court of Appeal of Florida
... Dr. Burley because Dr. Kane’s affidavit failed to meet the “same specialty” requirement in section
766.102(5)(a). The court also found that Dr. Kane had the ability to render an opinion as to whether Nurse Rice’s performance fell below the applicable standard of care, but she did not ...
CopyPublished | Florida 4th District Court of Appeal | 2000 Fla. App. LEXIS 13203, 25 Fla. L. Weekly Fed. D 2453
PER CURIAM. Affirmed. See §
766.102, Fla. Stat. (1997) (requiring that evidence of prevailing professional
0 red0 yellow2 green0 procedural
Cited as authorityCastroneves (2005)phrase: "rule_authority"
Cited as authorityKretzer (2001)phrase: "rule_authority"
CopyPublished | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 17190, 35 Fla. L. Weekly Fed. D 2505
against whom ... the testimony is offered[.]” §
766.102(5)(c), Fla. Stat. (2007). Because it is not clear
0 red0 yellow2 green0 procedural
CopyPublished | Florida 2nd District Court of Appeal | 2004 Fla. App. LEXIS 11826
reasonably careful physician would provide. See §
766.102(1), Fla. Stat. (2003); Fla. Std. Jury Instr. 4
0 red0 yellow2 green1 procedural
Cited as authorityPlancher (2013)phrase: "rule_authority"
Cited as authorityAHCA (2006)phrase: "rule_authority"
Review deniedGordon (2004)phrase: "review denied"
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 1897, 2011 WL 519896
requires no more than that. This leads us to section
766.102, Florida Statutes (2003), which governs expert
0 red0 yellow1 green0 procedural
Cited as authorityEdwards (2013)phrase: "rule_authority"
CopyPublished | United States Bankruptcy Court, M.D. Florida | 9 Fla. L. Weekly Fed. B 48, 1995 Bankr. LEXIS 918
professional standard in the community. See Fla.Stat.
766.102(1). However, a conduct of the debt- or which
0 red0 yellow1 green0 procedural
CopyPublished | Supreme Court of Florida
USE FOR 402.4a 1. See F.S.
766.102. Instruction 402.4a is derived from F.S.
766.102(1) and is intended to
0 red0 yellow1 green0 procedural
Cited as authorityTodeschi (2017)phrase: "rule_authority"
CopyPublished | Florida 2nd District Court of Appeal
Willis's affidavit did not comply with section
766.102 and the presuit requirements to filing a medical
CopyPublished | District Court of Appeal of Florida
specialty" as Dr. Perez Ortiz, pursuant to section
766.102(5)(a)1; and (3) because Dr. Hamburger's
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 7087, 1990 WL 133794
Florida Stat*1339utes (1983) [renumbered as section
766.102, Florida Statutes (1988 Supp.) ], and by failing
0 red0 yellow0 green1 procedural
Review deniedVillar (1991)phrase: "review denied"
CopyPublished | Supreme Court of Florida
(Medical Negligence), which is derived from section
766.102(2)(a), Florida Statutes, and concerns the standard
CopyPublished | District Court of Appeal of Florida | 1997 WL 611526
satisfy the expert witness requirements of section
766.102(2)(b), Florida Statutes (1991). For the reasons
0 red0 yellow0 green1 procedural
Rehearing deniedMizrahi (1998)phrase: "rehearing denied"
CopyPublished | District Court of Appeal of Florida
CopyPublished | Florida 2nd District Court of Appeal | 2000 WL 1504940
provider and not that owed by an ethicist. See §
766.102(2)(c). Under these circumstances, it may occasionally
CopyPublished | Florida 5th District Court of Appeal
CopyPublished | Court of Appeals for the Eleventh Circuit
of a hospital setting”); cf. Fla. Stat. Ann. §
766.102 (2013) (defining standard of care in medical
CopyPublished | Supreme Court of Florida
- 22 - Evidence Code and to section
766.102, Florida Statutes (2012).” (emphasis added)
CopyPublished | District Court of Appeal of Florida
CopyPublished | Florida 3rd District Court of Appeal
who qualifies under section
766.102, Florida Statutes (2022). Section
766.102(5) requires an expert
CopyPublished | District Court of Appeal of Florida
on summary judgment, the trial court quotes section
766.102(3)(b), Florida Statues, without explanation
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4a 1. See F.S.
766.102. Instruction 402.4a is derived from F.S.
766.102(1) and is intended to
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” §
766.202(6), Fla. Stat. (2016). Section
766.102, in turn, provides that “[a] person may not
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on the cardiac surgeon’s culpability under section
766.102(5), Florida Statutes (2013). The parties
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negligence standard of care as set forth in section
766.102(1).” National Deaf Acad., LLC v. Townes, 242
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that health care provider is a specialist. Id. §
766.102(5)(a)1. Alternatively, if the health care provider
CopyPublished | District Court of Appeal of Florida
Plaintiff nonetheless argues that pursuant to section
766.102, Florida Statutes (2022), in order to avoid
CopyPublished | Supreme Court of Florida
standard of care for that health care provider.” §
766.102(1), Fla. Stat. (2013). And the victims of this
CopyPublished | District Court of Appeal of Florida | 1993 WL 517231
provider's actions or inactions are defined by section
766.102, Florida Statutes (1991). Pursuant to this
CopyPublished | Florida 5th District Court of Appeal
meet the statutory presuit requirements of section
766.102(5)(a)1., Florida Statutes (2013), because none
CopyPublished | Florida 4th District Court of Appeal
negligence standard of care as set forth in section
766.102(1).” Integrated Health Care Servs., Inc
CopyPublished | Florida 4th District Court of Appeal
original). The instruction is derived from section
766.102(3), Florida Statutes, which provides that a
CopyPublished | Florida 4th District Court of Appeal
that Shorr was not qualified to testify under section
766.102(7), Florida Statutes, which provides: . .
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Jul 27, 2023
similar health care providers.” Fla. Stat. Ann. §
766.102(1). But none of the defendant
CopyPublished | Supreme Court of Florida
130(a)(3)(H) to reference subsection (12) of section
766.102, because subsection (12) also articulates the
CopyPublished | District Court of Appeal of Florida
expert." Townes, 242 So. 3d at 309 (quoting §
766.102(1), Fla. Stat. (2008)). In order to determine
CopyPublished | Florida 1st District Court of Appeal
under the medical malpractice standard of care. §
766.102(1), Fla. Stat. (2025) (“The prevailing professional
CopyPublished | District Court of Appeal of Florida
required to plead a medical malpractice claim. See §
766.102(1), Fla. Stat. Appellant included customary,
CopyPublished | Florida 4th District Court of Appeal | 2001 WL 321249
medical negligence standard of care set forth in section
766.102 applied to the active tortfeasorthe agent
CopyPublished | Florida 3rd District Court of Appeal
This duty, it continued, is based in part on section
766.102(1), Florida Statutes, providing “the prevailing
