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5th DCA Addresses Necessary Qualifications of Pre-Suit Expert

By Bonnie Navin, November 17th, 2010

The 5th District Court of Appeals recently addressed the adequacy of the qualifications of a pre-suit expert, and determined that the trial court did not err in its denial of the defendant hospital’s motion to dismiss, despite the fact that the registered nurse at issue had no hospital experience in the preceding three years.

The complaint alleged that the plaintiff had been admitted to the defendant hospital suffering from abdominal pain.  His physician prescribed narcotics, among other things, to manage his pain.  Thereafter, the nurses on duty allegedly failed to monitor the plaintiff’s vital signs throughout the night, and ultimately found him unresponsive and suffering respiratory distress the following morning.  The plaintiff allegedly stopped breathing for thirteen minutes and suffered brain damage as a result.

In February, 2008, the plaintiff notified the defendant of his intent to initiate litigation in accordance with Chapter 766.  Plaintiff attached the affidavit and CV of a registered nurse, which indicated that she had been employed as a consultant in a medical rehabilitation center from 1993- 2006.  The affidavit did not indicate that the r.n. had any experience as a hospital nurse in the three years prior to the incident at issue.  Subsequent affidavits provided that the r.n. had been employed as a medical case manager providing nursing care for many cases that involved brain injury, and that, from 2002-2005, she had been employed as a nursing consultant.  As to causation, the r.n. averred that her training and experience enabled her to state with a reasonable degree of certainty that a patient left without oxygen would incur brain damage and/or death.

The defendant moved to dismiss, arguing that the documents provided made it clear that the r.n. had not devoted any time to clinical practice or consulting in a hospital setting since 1993, and that she did not have the requisite training and experience to opine about the medical causation of the plaintiff’s injuries for pre-suit purposes.

In affirming the trial court’s denial of the defendant’s motion to dismiss, the 5th DCA stated that the pre-suit requirements were “…not intended to be a Daedalean labyrinth that denies a plaintiff access to the courts.”  Although the expert had not been a floor nurse at a hospital during the preceding three years, the Court held that the CV and affidavits, when taken together, established that she had been actively engaged, both in the practice of nursing and nurse consulting, such that she was sufficiently qualified to give an opinion as to standard of care for hospital nurses and causation.  Holmes Regional Medical Center v. Wirth, Case No. 5D10-423 (Fla. 5th DCA Nov. 12, 2010).



Entry Filed under: Presuit

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