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Medical Malpractice Suit Against Eye Doctor Dismissed

Posted by Guy DiMartino | Sep 03, 2013 | 0 Comments

Stuart medical malpractice lawyer, Guy S. DiMartino, discusses dismissal of a recent medical malpractice suit against an eye doctor.

In this case, the patient underwent eye surgery and developed a severe infection after the procedure.  She instituted a medical malpractice case against the ophthalmologist claiming that he committed malpractice because he used improperly sterilized instruments.

In Florida, a medical malpractice case begins when the patient serves the doctor or hospital with a Notice of Intent.  Attached to the notice of intent, the patient must attach an affidavit of a doctor who is in the same specialty or specializes in a similar specialty that includes the diagnosis, evaluation or treatment of the medical condition at issue.

In this case, the patient utilized the affidavit of an infectious disease doctor taking the position that the expert diagnoses, evaluates and treats infections, including infections of the eye.

The ophthalmologist asked the court to dismiss the case and the court granted the motion. The patient then appealed the case the Fourth District Court of Appeal that hears cases in our area including Martin, St. Lucie and Indian River Counties.

The Fourth District affirmed the trial court's dismissal stating:

Simply put, the infectious disease doctor is not an eye surgeon nor is the ophthalmologist an infectious disease doctor.

The infectious disease doctor does not “specialize in a similar specialty that includes the evaluation, diagnosis, or treatment of” a bilateral blephroplasty (eye lid surgery) or any type of surgery.


This matters because in 2013, the legislature pretty much did away with the similar specialty part of the law.  Now, a patient who claims they are a victim of medical malpractice has to retain an expert in the “same specialty.”  This is just another hurdle that hurts victims of medical malpractice.  Let me give you a few examples pointing out the hurdle.

Neurosurgeons and a subset of orthopedic surgeons both perform spine surgery.  If a neurosurgeon allegedly committed malpractice, the patient could not utilize an orthopedic surgeon as an expert.

Plastic surgeons and a subset of orthopedic surgeons can specialize in hand surgery. If an orthopedic surgeon alleged committed malpractice, the patient could not have a plastic surgeon testify regarding the negligence.

Gynecologists and family doctors perform gynecological examinations of patients.  If a family doctor is negligent in working up or treating his patient's gynecological issues, a gynecologist could not be used as an expert.

What are your thoughts regarding these changes?

Florida medical malpractice law can be complex and there are a number of traps for unsuspecting patients.  If you have any questions about a potential medical malpractice claim in treasure coast, give me a call.

* Photo Hawk-Eye – Author Steve Jurvetson

About the Author

Guy DiMartino

I have loved helping people in need for almost three decades.  It has been my privilege to serve people as their pastor, chiropractor, and lawyer.  The current focus of my legal practice and life’s passion is helping the seriously injured receive complete compensation for their injuries. I am a Florida Board Certified Civil Trial Attorney. What that really means is that I am no stranger to the courtroom.  I have successfully tried and handled serious cases in state and federal courts.  My backgrounds in both law and chiropractic medicine have given me a unique perspective, extensive knowledge, and wide experience to serve those I represent. For years as a chiropractic physician, I treated my patients to alleviate their pain and suffering. Now as their lawyer, I fight to bring them financial compensation for their pain and suffering. During my years of service, I have handled many traumatic injury cases ranging from the traumatic amputation of a limb to brain and spinal cord injury.  I consider it an honor to serve you and your family. When a person entrusts me and I accept to represent them, I don’t take that relationship and responsibility lightly. My approach is that we work as a team. We are partners and our goal is the best outcome for you and your family with the highest level of communication throughout. I am always available by phone or email to discuss my potential representation of your injury case. I handle cases throughout Florida. Education: National University of Health Sciences – BS (1984), DC (1986) Valparaiso University School of Law – JD, summa cum laude (1999) Bar Admissions: Florida (2000), Indiana (1999), Illinois (2000, expired); US District Courts of Appeals (11th Circuit, 7th Circuit); United States District Courts: Southern and Middle Districts of Florida; Northern and Southern Districts of Indiana; Northern and Central Districts of Illinois; and District of Colorado. Certification:  Civil Trial, Florida Bar Guy DiMartino on Google+ – Circle Guy on Google+ Guy DiMartino on Google+


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