FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D16-4604

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DIANE RODRIGUEZ and DAVID 

RODRIGUEZ, her husband,

Appellants,

v.

ERNST NICOLITZ, M.D. and

LENKA CHAMPION, M.D.,

Appellees.

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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
2

 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 
3

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. 
4

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 
5

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.
6

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 
7

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.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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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.