JAMES WELDON MCCOY AND PATRICIA ANN MCCOY, HIS WIFE, APPELLANTS,
v.
WILLIAM E. HOFFMEISTER, M.D. AND MICHAEL F. BROWN, M.D., APPELLEES
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The McCoys appealed a summary judgment granted in favor of their physicians in a medical malpractice case. The trial court struck the plaintiffs' expert affidavit because it failed to allege the expert's specialty and qualifications, but the appellate court reversed, holding that summary judgment was improper based on technical deficiencies in the affidavit that could be corrected.
Summary judgment was improper and reversed. The trial court erred in striking the expert affidavit based on technical deficiencies that were correctable, and the plaintiffs should have been permitted to amend the affidavit to include the expert's qualifications.
[1] Summary judgments are disfavored in malpractice suits and should not be granted if the non-movant has not been conclusively shown to be unable to offer proof to support t…
[2] A trial court should not grant summary judgment based on technical deficiencies in an affidavit if those deficiencies are correctable.
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Join FLexlaw to unlock all legal intelligence“Summary judgments are not favored in malpractice suits. The non-movant's right to trial should not be foreclosed if it has not been conclusively shown that he cannot offer proof to support his position.”
Establishes the legal standard that summary judgments should be disfavored in medical malpractice cases
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Join FLexlaw to unlock all legal intelligenceJames McCoy was treated by Drs. Hoffmeister, Brown, and Shear from May 1976 through March 1979. McCoy claimed he suffered permanent injuries from the …
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SHARP, Judge.
James and Patricia McCoy appeal from a final summary judgment entered on their medical malpractice claim in favor of appel-lees William E. Hoffmeister, M.D., and Michael P. Brown, M.D. Appellees and Dr. Robert Shear, a co-defendant, were members of the same professional association. Each doctor treated James McCoy at various times from May 1976 through March 1979. McCoy claims he suffered permanent injuries as a result of the appellees’ negligence. The trial judge granted summary judgment as to Hoffmeister and Brown, but denied it as to Shear and the professional association. We reverse as to Hoffmeister and Brown.
In opposition to the motions for summary judgment, the appellants filed the affidavit of their expert witness, Dr. James Lake, which would have created an issue of fact concerning appellees’ negligence and malpractice. The basis for the summary judgment was the failure of affiant Lake to allege he was a member of the same specialty as the appellees, or that he possessed sufficient training, experience or knowledge to enable him to testify about the acceptable standards of care in their medical specialties. § 768.45(2)(c), Fla.Stat. (1981). The affidavit alleged only that Lake was licensed to practice medicine in Florida. At the hearing on the motions for summary judgment, the court granted an ore terns motion to strike the affidavit and denied appellants’ ore terns motion to amend the affidavit to include Lake’s qualifications to testify to matters contained in the affidavit.
Summary judgments are not favored in malpractice suits. The non-mov-ant’s right to trial should not be foreclosed if it has not been conclusively shown that he cannot offer proof to support his position. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). Here there was no proof that Lake was not qualified to give expert testimony. See Chenoweth v. Kemp, 396 So. 2d 1122 (Fla.1981). Further, summary judgment should not be granted because of technical deficiencies in the non-movant’s affidavit. Holl. The technical deficiencies in the expert’s affidavit in Holl were: failing to state what was wrong with the patient; offering no medical explanation for the charge of negligence; and failing to connect the alleged negligence to the patient’s injury. The deficiency in this case, even if essential, is correctable, and appellants should have been permitted to make the correction.
Because the court erred in granting the motion for summary judgment, we reverse and remand for further proceedings in this cause.
REVERSED AND REMANDED.
DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.
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United Auto. Ins. Co. v. Affiliated Healthcare Ctrs., Inc., 43 So. 3d 127 (Fla. 3d DCA 2010)…avit without granting plaintiffs request to amend); Charlonne v. Rosenthal, 642 So. 2d 632 (Fla. 3d DCA 1994) (summary judgment should not be granted because of correctable deficiencies in expert affidavit of non-moving party); McCoy v. Hoffmeister, 435 So. 2d 989 (Fla. 5th DCA 1983) (trial court erred in denying motion to amend affidavit to include expert’s qualification to testify to matters contained in affidavit). Here, any deficiencies in the affidavit were technical and amenable to correction. As the F…
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Charlonne v. Vlad Rosenthal, M.D., 642 So. 2d 632 (Fla. 3d DCA 1994)…vider” as prescribed by paragraph 766.102(2)(a), and does not meet the alternative standard set forth in paragraph 766.102(2)(e) for an expert otherwise qualified by training, experience, and knowledge. On this point we follow McCoy v. Hoffmeister, 435 So. 2d 989 (Fla. 5th DCA 1983). There, the court said: In opposition to the motions for summary judgment, the appellants filed the affidavit of their expert witness, Dr. James Lake.... The basis for the summary judgment was the failure of affiant Lake to alle…
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- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Chenoweth v. William L. Kemp, M.D., 396 So. 2d 1122 (Fla. 1981)