Wednesday, September 30, 2009

Is It Appropriate For An Appellate Judge To Conduct Internet Research? AND MedMal Claim Dismissed For Improper Presuit Affidavit

In Oken et. al. v. Williams (1D08-3398), the First District granted certiorari because the "trial court departed from the essential requirements of law in denying petitioners’ (defendants, Keith Robert Oken, M.D., and Mayo Clinic of Florida) motion to dismiss respondent’s (plaintiff, Ted Williams) malpractice action for failing to timely comply with the statutory presuit requirements by failing to attach a corroborating affidavit of a “medical expert” as defined by section 766.202(6), Florida Statutes."  The court also has an extremely interesting discussion about whether it is appropriate for judges (in this case the judge writing the appellate opinion) to consult internet sources not cited by a party.

The court stated:

In this case, petitioner Oken, “the health care provider against whom . . . the testimony is offered,” is a board certified cardiologist. There is no dispute that respondent’s expert does not specialize in cardiology. Thus, to corroborate respondent’s claim under section 766.102(5)(a)(1), Florida Statutes, respondent’s expert must 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.”...Florida courts have consistently affirmed the importance of an appropriate verified medical expert opinion as a prerequisite to file suit for medical malpractice."

As to the internet research, the majority stated in a footnote that covers three pages: "No one can argue that indiscriminate, independent internet research by a judge involving subjective facts, non-legal opinions and studies, or the use of unknown or unverified websites not presented by the parties would create significant concerns. The use of generally-known knowledge, however, which is capable of accurate and ready determination from sources whose accuracy cannot reasonably be questioned, does not present the same concerns."

Judge Browning begins a 12 page dissent by stating:
Because the majority opinion transgresses binding precedent of this Court and ignores persuasive non-binding, out-of-state precedent by relying on Internet information not contained in the case record and unknown to the parties; fails to follow relevant procedural precedent of substantial persuasive value; and injects the judiciary into adversarial territory heretofore untraveled, I am compelled to dissent.


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