Amended Rule 9.130 Extends Scope of Appellate Review in Medical Malpractice Suits

Before the end of 2023, the Florida Supreme Court made one final change to the newly adopted Florida Rule of Appellate Procedure 9.130(a)(3)(H), a new rule that—in a medical malpractice action—permits immediate, interlocutory appeal of an order denying a motion to dismiss on the basis that the plaintiff’s corroborating expert witness is not qualified. As explained below, there are two main takeaways for practitioners in this area.

First, Florida Rule of Appellate Procedure 9.130(a)(3)(H) was created this year sua sponte (on its on motion) by the Florida Supreme Court. The Rule provides for interlocutory (non-final) appellate review of orders denying motions to dismiss on the basis that a plaintiff’s expert is not qualified. This is important because under section 766.203(2), Florida Statutes, a presuit requirement of a malpractice claim includes filing a verified corroborating expert opinion. Under section 766.102, Florida Statutes, the plaintiff’s expert must be qualified, and if the defendant doctor is a specialist, the expert must also be a specialist in the same area.

Previously, a denial of a motion to dismiss based on these requirements would have been reviewable, if at all, only by certiorari. Non-final review, rather than certiorari review, makes it easier for medical malpractice defendants to obtain favorable results from the District Courts of Appeal. Successfully petitioning for a writ of certiorari is a tall task: it requires the party invoking the District Court of Appeal’s original jurisdiction to demonstrate that the trial court “departed from the essential requirements of law” in a way that causes “irreparable harm” that cannot be remedied on appeal. In a non-final appeal, by contrast, an appellant can obtain reversal based on an abuse of discretion, or insufficient evidence. Because it is far more difficult to prevail on certiorari review than it is with standard appellate review, the availability of immediate, interlocutory appellate review makes it easier for medical malpractice defendants to obtain favorable results at the appellate level.

Second, Florida Rule of Appellate Procedure 9.130(a)(3)(H) eliminates an inter-district conflict. Previously, the First DCA did not exercise certiorari jurisdiction in this context, whereas the Second DCA and Fifth DCA did. Univ. of Florida Bd. of Trustees v. Carmody, 372 So. 3d 246, 248 (Fla. 2023). Clarity benefits everyone.

In sum, although Rule 9.130(a)(3)(H)’s grant of the right to immediate, interlocutory appellate review makes it easier for medical malpractice defendants to obtain favorable results at the appellate level, both plaintiffs and defendants will benefit from the clarity the rule provides.