         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D16-4604
                  _____________________________

DIANE RODRIGUEZ and DAVID
RODRIGUEZ, her husband,

    Appellants,

    v.

ERNST NICOLITZ, M.D. and
LENKA CHAMPION, M.D.,

    Appellees.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Karen Cole, Judge.

                          May 18, 2018


BILBREY, J.

    Diane Rodriguez and her husband, David Rodriguez, appeal
an order dismissing with prejudice their medical malpractice
complaint as to Lenka Champion, M.D. Dr. Champion was one of
two defendants sued by the Rodriguezes after Mrs. Rodriguez
experienced an infection following eye surgery. Because the
presuit notice requirements were not met as to Dr. Champion,
the trial court correctly dismissed the complaint as to Dr.
Champion. We therefore affirm.

                        I. Background
     On April 23, 2013, Mrs. Rodriguez underwent a
blepharoplasty on her upper and lower eyelids, a procedure to
repair droopy eyelids and to remove excess tissue around the
eyes. The surgery was performed by Ernst Nicolitz, M.D., an
ophthalmologist.     Following the surgery, Mrs. Rodriguez
developed an infection in her left eye. Three post-operative
examinations of Mrs. Rodriguez were performed by Dr.
Champion, also an ophthalmologist, who was employed by the
same professional association as Dr. Nicolitz. According to Mrs.
Rodriguez, the infection left her with serious visual impairments,
dizziness, continued risk of infection, and an asymmetrical facial
appearance.

     By letter dated Jan. 13, 2014, Dr. Nicolitz was advised by
Mr. and Mrs. Rodriguez of their intent to initiate litigation for
medical malpractice. Attached to the letter was the affidavit of
Eliot B. Siegel, M.D., whose stated specialty was ophthalmology.
The letter indicated that no other defendants were known at the
time, and Dr. Champion was identified in the letter as one of the
known medical treatment providers to Mrs. Rodriguez.

    Thereafter, by a complaint filed May 19, 2014, Mrs.
Rodriguez sued Dr. Nicolitz, but not his professional association
(Ernest Nicolitz, M.D., P.A., d/b/a Nicolitz Eye Consultants), for
medical negligence. A loss of consortium claim was alleged in the
complaint against Dr. Nicolitz by Mr. Rodriguez.

      By letter dated June 15, 2015, Dr. Champion was for the
first time advised of the Rodriguezes’ intent to initiate litigation
against her for medical malpractice.         Dr. Champion was
employed by Nicolitz Eye Consultants, and as noted, she had
conducted some post-operative examinations of Mrs. Rodriguez.
Unlike Dr. Nicolitz however, Dr. Champion was not an officer,
director, or shareholder of Nicolitz Eye Consultants. Attached to
the notice of intent was an affidavit of Richard K. Sall, M.D.,
whose medical specialty was listed as “Infectious Diseases.”

    Thereafter, the Rodriguezes sought leave to amend their
complaint to add Dr. Champion as a defendant. The amended
complaint alleged Dr. Champion committed medical negligence


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for failing to accurately diagnose the nature of Mrs. Rodriguez’
eye infection.

     After a stay requested by Dr. Nicolitz was denied and after
leave was granted to file the amended complaint, Dr. Champion
moved to dismiss that amended complaint. Dr. Champion argued
that the notice of intent to initiate litigation did not comply with
section 766.102(5)(a), Florida Statutes (2012), which mandates
that in litigation involving a specialist defendant, a plaintiff’s
expert be of the same or similar specialty as the defendant. 1 Dr.
Champion is an ophthalmologist while Dr. Sall is an infectious
disease specialist. In support of her position, Dr. Champion cited
Edwards v. Sunrise Ophthalmology Assoc., 134 So. 3d 1056 (Fla.
4th DCA 2013), where the reviewing court held that an
ophthalmologist and an infectious disease specialist were too
dissimilar to satisfy section 766.102(5)(a) under the facts of that
case.

     The trial court here agreed that Dr. Sall’s affidavit was
inadequate since his specialty differed from Dr. Champion, and
thus the mandatory presuit notice of June 15, 2015, was
insufficient as to Dr. Champion.

     The Rodriguezes countered by asserting that the presuit
notice and affidavit of Dr. Siegel, filed with respect to Dr. Nicolitz
on January 13, 2014, should also apply to Dr. Champion as the
doctors are in a “legal relationship.” The trial court conducted an
evidentiary hearing to determine whether the doctors were in a


    1  The parties disagree whether the trial court applied the
2012 or 2013 version of section 766.102(5)(a). The 2013 version
requires that a plaintiff’s expert be of the same specialty as the
defendant. On appeal, the parties agree that the 2012 version of
section 766.102 applies. See Ch. 2013-108, §§ 2, 6, & 7, Laws of
Fla. (applying a July 1, 2013, effective date to the statutory
amendment). Below, we analyze the issue under the 2012
version of the statute and hold that the trial court did not commit
error.



                                  3
legal relationship such that it would be appropriate, per rule
1.650, Florida Rules of Civil Procedure, to impute to Dr.
Champion knowledge of the prior presuit notice directed to Dr.
Nicolitz.

     In the written order dismissing with prejudice the amended
complaint as to Dr. Champion, the trial court held that under
rule 1.650, the January 13, 2014, notice with corroborating
affidavit of Dr. Siegel, did not operate as presuit notice to Dr.
Champion. The trial court explained that the notice would have
been effective as to Dr. Champion only if Dr. Champion was a
“prospective defendant” at the time Dr. Nicolitz received the
notice and Dr. Champion had a “legal relationship” with Dr.
Nicolitz.

     The presuit notice to Dr. Nicolitz “plainly stated there were
no other ‘prospective defendants,’” the trial court observed.
Further, the trial court concluded that the two doctors did not
have a legal relationship. The Rodriguezes now take issue with
that conclusion. They argue on appeal that the notice given to
Dr. Nicolitz, which was accompanied by the affidavit of Dr. Siegel
was sufficient as to Dr. Champion as well. We reject the
Rodriguezes’ arguments.

                           II. Analysis

      Before a complaint alleging medical malpractice may be
filed, Florida law requires that certain activities be taken prior to
the filing of a lawsuit. See Williams v. Oken, 62 So. 3d 1129,
1133 n.1 (Fla. 2011). While these presuit requirements are
conditions precedent to a malpractice suit, the provisions of the
statute were not intended to deny access to the courts on the
basis of technicalities. Fort Walton Beach Med. Ctr., Inc. v.
Dingler, 697 So. 2d 575 (Fla. 1st DCA 1997).

      By Florida’s presuit requirements, a potential plaintiff first
must serve on a potential defendant notice of intent to initiate
litigation for medical negligence. § 766.106(2)(a), Fla. Stat.
(2012). With the notice, a potential plaintiff is required to submit
a “verified written medical expert opinion from a medical expert


                                 4
as defined in s. 766.202(6)” which supports a claim of medical
negligence. § 766.203(2)(b), Fla. Stat. (2012).

     A medical expert as defined in section 766.202(6) is “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).

      An expert witness as defined in section 766.102 is, in turn, a
“health care provider who holds a valid and active license and
conducts a complete review of the pertinent medical records,” and
if the expert witness is presented as a specialist, the expert must

     [s]pecialize in the same specialty as the [potential
     defendant]; or 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 similar patients; . . . .

§ 766.102(5)(a)1, Fla. Stat. (2012).

     In finding that Dr. Sall was not engaged in the “same”
specialty as Dr. Champion, the trial court relied on Edwards. 2
The defendant in Edwards was an ophthalmologist, as is Dr.
Champion, and the expert retained by the plaintiff in Edwards
was an infectious disease specialist, as is Dr. Sall. 134 So. 3d at
1057. The plaintiff in Edwards, like Mrs. Rodriguez here,
suffered a bacterial infection following eyelid surgery. Id.

     The majority in Edwards held that an infectious disease
doctor is not within the “same specialty” as an ophthalmologist.
The court explained:

     If we were to allow an infectious disease doctor to be
     considered a similar specialty to an ophthalmologist or

    2 While the Edwards court did not apply the 2012 version of
chapter 766, the 2009 version which it did apply is substantially
the same as the 2012 version.

                                  5
      one “that includes the evaluation, diagnosis, or
      treatment of the medical condition”—a bilateral
      blepharoplasty—we would impose the infectious disease
      doctor’s expertise on a dissimilar eye-surgery specialist.
      This vitiates the very nature of a physician’s
      specialization.    Neither could we impose the eye
      surgeon’s specialization on the infectious disease doctor.

Id. at 1059. We agree and hold that based on the record here, Dr.
Champion, an ophthalmologist, and Dr. Sall, an infectious
disease specialist, did not practice the “same specialty.”

     Further, the Edwards majority rejected the suggestion made
by the dissent that the expert qualified as an expert in a “similar
specialty that includes the evaluation, diagnosis, or treatment of
the medical condition that is the subject of the claim.” Id. The
majority in Edwards said that in the case before it

      the medical condition was ophthalmic in nature, a
      bilateral blepharoplasty. The infectious disease doctor
      does not “specialize in a similar specialty that includes
      the evaluation, diagnosis, or treatment of” a bilateral
      blephroplasty or any type of surgery.          And, the
      infectious disease doctor’s affidavit does not suggest
      otherwise.

Id.

     Likewise, it cannot be said on the record before us that Dr.
Sall specializes in a specialty “similar” to that of Dr. Champion.
Nothing in this record indicates that Dr. Sall has evaluated,
diagnosed, or treated a post-blepharoplasty infection. Dr. Sall’s
affidavit does not express any familiarity with the standard of
care applicable to physicians who perform blephroplasty. Thus,
as a matter of law, Dr. Sall cannot qualify as specialist for
purposes of presuit notification with regard to Dr. Champion
given his qualifications.

    It is worth noting that the purpose of the presuit
requirements is to provide a means for “prompt resolution of
medical claims.” See 766.201(2), Fla. Stat. (2012) (statement of

                                  6
legislative findings and intent). Said another way, the statutory
presuit screening provisions were intended by the Legislature to
facilitate the expedient, and preferably amicable, resolution of
medical malpractice claims. Williams, 62 So. 3d at 1133 n.1;
Ingersoll v. Hoffman, 589 So. 2d 223, 224 (Fla. 1991). In the case
at bar, although the nature of Mrs. Rodriguez’ injury was known
within weeks of April 23, 2013, surgery, there was no attempt to
bring Dr. Champion into the litigation until June 15, 2015, a year
after notice was given to Dr. Nicolitz, a notice which, incidentally,
acknowledged Dr. Champion as a medical provider.

     As for the Rodriguezes’ argument that the trial court erred
in finding an insufficient legal relationship between Dr.
Champion and Dr. Nicolitz so as to impute the presuit notice
given to Dr. Nicolitz (the adequacy of which as to Dr. Nicolitz is
not now before us), we find no basis to reverse. The findings of
fact made by the trial court in concluding an insufficient legal
relationship existed are supported by the record. Nor do we find
merit in Rodriguezes’ claim that the trial court erred in not
applying the equitable tolling doctrine.

    AFFIRMED.

B.L. THOMAS, C.J., and JAY, J., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Brandon S. Vesely of Albertelli & Whitworth, Tampa; Wesley T.
Straw and Matthew D. Emerson of Emerson Straw PL, St.
Petersburg, for Appellants.

Michael R. D'Lugo and Richard E. Ramsey of Wicker, Smith,
O'Hara, McCoy & Ford, P.A., Orlando, for Appellee Lenka
Champion, M.D.


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