Claims for a Hospital’s Negligent Credentialing Must Be Addressed With Sufficient Facts in a Corroborating Expert Affidavit During the Presuit Investigation Period
The Third District Court of Appeal affirmed a motion to dismiss related to a negligent credentialing claim on the basis that the presuit corroborating expert affidavit was deficient.
After the plaintiff sustained a left ankle fracture, he was referred to a board-certified foot and ankle surgeon, Dimitry Sandler, DPM, who recommended undergoing a total ankle replacement surgery. The operation was performed at Mariners Hospital, Inc. Following the surgery, the plaintiff experienced loss of ankle function, wound dehiscence, osteomyelitis and chronic infections.
The plaintiff served a notice of intent on Dr. Sandler and Mariners Hospital. Included with the notice of intent was the corroborating expert affidavit by a board-certified foot and ankle surgeon, Matthew Sorenson, DPM. Dr. Sorenson’s opinions related to Dr. Sandler’s negligence were listed in the affidavit. In addition, Dr. Sorenson opined that:
Mariners Hospital, Inc. fell below applicable standards of care for credentialing surgeons in credentialing and authorizing Dr. Sandler to perform a total ankle replacement procedure. It is therefore my opinion within reasonable medical probability that Mariners Hospital, Inc. fell below applicable standards of care in their supervision and credentialing of Dr. Sandler and was therefore negligent, and that this negligence resulted in injury to Mr. Tomas as summarized above.
A corroborating expert affidavit must sufficiently indicate the manner in which the defendant allegedly deviated from the standard of care and must provide adequate information for the defendant to evaluate the merits of the claim.
In addition, Florida Statute 766.102(7) provides the requirements for expert witnesses testifying on the standard of care as to a hospital, health care facility or medical facility. An expert who provides opinions based on the standard of care as to administrative and other non-clinical issues must have substantial knowledge, through training and experience, concerning the standard of care for the type of facility the expert is providing opinions on.
The Third District Court of Appeal determined that the corroborating expert affidavit was devoid of detail as to the administrative standard of care related to credentialing. The court affirmed the finding that the affidavit was deficient, stating: “To conclude otherwise would allow every plaintiff to automatically transform any individual medical malpractice claim against a physician with credentials or privileges into an administrative claim without complying with the safeguards of section 766.102(7).”
Defendants should analyze any counts related to agency theories to determine if any administrative or non-clinical issues have been alleged or insinuated (i.e., negligent credentialing, negligent hiring, etc.). A plaintiff can still allege vicarious liability related to the medical negligence. However, any additional administrative claims will need to have been addressed in the corroborating expert affidavit by a qualified expert. If they are not, a motion to dismiss for failure to presuit should be filed.
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