Supreme Court of Florida
                             ____________

                          No. SC2022-0068
                            ____________

    UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, et al.,
                      Petitioners,

                                  vs.

                         LAURIE CARMODY,
                            Respondent.

                             July 6, 2023

COURIEL, J.

     The Medical Malpractice Act1 sets requirements that anyone

contemplating a medical malpractice case must meet before filing

suit in Florida. One of these presuit requirements is to select an

expert witness who meets certain criteria and will corroborate the

basis of the plaintiff’s claim. In this case, the petitioners moved to

dismiss a medical malpractice action against them, asserting that

the respondent’s proposed expert did not meet these statutory

requirements. The trial court denied the motion.



     1. Chapter 766, Florida Statutes.
     Is that trial court decision subject to certiorari review? That

is, can an appellate court, exercising its authority 2 to issue an

interlocutory writ of certiorari, 3 immediately review a trial court’s

ruling in this regard? No, said the First District Court of Appeal in

University of Florida Board of Trustees v. Carmody, 

(Fla. 1st DCA 2021), certifying conflict with Clare v. Lynch, 

 (Fla. 2d DCA 2017), and Riggenbach v. Rhodes, 

 (Fla. 5th DCA 2019). 4 We agree with the First District that,

while Florida courts “have recognized exceptions” to the general rule

that “certiorari review is an inappropriate means of challenging a




     2. See art. V, § 4(b)(3), Fla. Const. (“A district court of appeal
or any judge thereof may issue writs of . . . certiorari . . . .”); Fla. R.
App. P. 9.030(b)(2)(A) (“The certiorari jurisdiction of district courts
of appeal may be sought to review [] nonfinal orders of lower
tribunals other than as prescribed by rule 9.130 . . . .”).

      3. “[C]ertiorari relief is available when a lower court has
departed from the essential requirements of the law or when a lower
court has acted in excess of its jurisdiction, and no appeal or direct
method of reviewing the proceeding exists.” Williams v. Oken, 

 (Fla. 2011). This version of certiorari relief
should not be confused with its cousin, so-called “second-tier”
certiorari, which allows district courts of appeal to review “final
orders of circuit courts acting in their review capacity.” Fla. R. App.
P. 9.030(b)(2)(B).

     4. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

                                   -2-
trial court’s denial of a motion to dismiss,” this is not one of them.

Carmody, 331 So. 3d at 237.

     And yet we acknowledge that the Medical Malpractice Act

changed the law such that an interlocutory remedy for parties

facing claims that fail to satisfy its presuit requirements is

warranted. Accordingly, in a concurrent opinion, we amend Florida

Rule of Appellate Procedure 9.130(a)(3) to provide for interlocutory

review of nonfinal orders that deny a motion to dismiss on the basis

of the qualifications of a corroborating witness under subsections

766.102(5)-(9), Florida Statutes. In re Amend. to Fla. Rule of App.

Proc. 9.130, No. SC2023-0701 (Fla. July 6, 2023).

                                   I

     William Friedman, M.D.—a neurosurgeon—performed a

cervical disc fusion on Laurie Carmody at Shands Teaching

Hospital and Clinics, Inc. Carmody subsequently experienced

worsening pain, hardness, and redness at the incision site, as well

as neurological symptoms, all of which she reported to Dr.

Friedman and Yolanda Gertsch-Lapcevic, A.R.N.P. When Carmody

eventually became paralyzed, she sought treatment at an

emergency room. The doctors there discovered that Carmody had


                                  -3-
developed an abscess on her spine that would ultimately require

two additional surgeries, neither of which would fully restore her

health.

     Carmody decided to sue Shands and the University of Florida

Board of Trustees (UF) for medical malpractice allegedly committed

by Dr. Friedman and Nurse Practitioner Gertsch-Lapcevic. But

first, Carmody had to satisfy the Medical Malpractice Act’s presuit

requirements.

     While several sections of chapter 766 govern these presuit

requirements, the provisions most relevant here require that

     the claimant shall conduct an investigation to ascertain
     that there are reasonable grounds to believe that:
     (a) Any named defendant in the litigation was negligent
     in the care or treatment of the claimant; and
     (b) Such negligence resulted in injury to the claimant.

     Corroboration of reasonable grounds to initiate medical
     negligence litigation shall be provided by the claimant’s
     submission of a verified written medical expert opinion
     from a medical expert as defined in s. 766.202(6) . . . .

§ 766.203(2), Fla. Stat. (2016) (emphasis added). Section

766.202(6) defines a medical expert as “a person duly and regularly

engaged in the practice of his or her profession . . . and who meets




                                -4-
the requirements of an expert witness as set forth in s. 766.102.”

§ 766.202(6), Fla. Stat. (2016).

     Section 766.102, in turn, provides that “[a] person may not

give expert testimony concerning the prevailing professional

standard of care unless the person is a health care provider who

holds an active and valid license and conducts a complete review of

the pertinent medical records and meets [certain] criteria . . . .”

§ 766.102(5), Fla. Stat. (2016). These certain criteria depend on the

type of health care provider “against whom . . . the testimony is

offered.” Id. § 766.102(5)(a).

     If the provider accused of malpractice is a specialist like

Dr. Friedman, the corroborating expert must satisfy

subsection (5) and:

     1.    Specialize in the same specialty as the health care
     provider against whom or on whose behalf the testimony
     is offered; and
     2.    Have devoted professional time during the 3 years
     immediately preceding the date of the occurrence that is
     the basis for the action to:
     a.    The active clinical practice of, or consulting with
     respect to, the same specialty;
     b.    Instruction of students in an accredited health
     professional school or accredited residency or clinical
     research program in the same specialty; or
     c.    A clinical research program that is affiliated with an
     accredited health professional school or accredited


                                   -5-
     residency or clinical research program in the same
     specialty.

§ 766.102(5)(a), Fla. Stat. (2016).

     If the provider accused of malpractice is a health care provider

other than a specialist or a general practitioner—like Gertsch-

Lapcevic, a nurse practitioner—the corroborating expert must

satisfy both subsections (5)(c) and (6). Under subsection (5)(c), an

expert may testify if he or she has “devoted professional time during

the 3 years immediately preceding the date of the occurrence that is

the basis for the action” to:

     1.    The active clinical practice of, or consulting with
     respect to, the same or similar health profession as the
     health care provider against whom or on whose behalf
     the testimony is offered;
     2.    The instruction of students in an accredited health
     professional school or accredited residency program in
     the same or similar health profession in which the health
     care provider against whom or on whose behalf the
     testimony is offered; or
     3.    A clinical research program that is affiliated with an
     accredited medical school or teaching hospital and that is
     in the same or similar health profession as the health
     care provider against whom or on whose behalf the
     testimony is offered.

§ 766.102(5)(c), Fla. Stat. (2016). And under subsection (6), a

physician “may give expert testimony in a medical negligence action

with respect to the standard of care of . . . medical support staff,”


                                  -6-
including “nurse practitioners,” if the physician is licensed, qualifies

as an expert under subsection (5), and, “by reason of active clinical

practice or instruction of students, has knowledge of the applicable

standard of care for . . . nurse practitioners . . . .” § 766.102(6), Fla.

Stat. (2016).

     To satisfy these requirements, Carmody included within her

presuit notices the affidavit of James DeStephens, M.D. In the

affidavit, Dr. DeStephens attested that he was a “licensed medical

doctor specializing in the practice of Internal Medicine, Hospital

Medicine, and Cardiology.”

     Shands and UF moved to dismiss the complaint on the

grounds that Dr. DeStephens did not satisfy subsection (5)(a)

concerning a neurosurgeon like Dr. Friedman or subsections (5)(c)

and (6) concerning a nurse practitioner like Gertsch-Lapcevic.

Carmody provided a supplementary affidavit from Dr. DeStephens—

who was also deposed—and the circuit court held hearings on the

subject. The upshot of this litigation was that Carmody conceded

that Dr. DeStephens did not meet the subsection (5)(a)

requirements pertaining to Dr. Friedman—dropping him from the

suit—while maintaining that Dr. DeStephens did meet the


                                  -7-
subsection (5)(c) and (6) requirements pertaining to Nurse

Practitioner Gertsch-Lapcevic.

     The circuit court ultimately denied the motion to dismiss,

finding that Dr. DeStephens was qualified to render standard-of-

care opinions against Nurse Practitioner Gertsch-Lapcevic under

both subsections (5)(c) and (6).

     Shands and UF filed a certiorari petition, asking the First

District to quash the circuit court’s order. They asserted that the

First District had jurisdiction under article V, section 4(b)(3) of the

Florida Constitution and Florida Rule of Appellate Procedure

9.030(b)(2)(A). To meet this Court’s standard for certiorari relief,

Shands and UF argued that the circuit court’s order departed from

the essential requirements of the law and caused them irreparable

harm. See Bd. of Trs. of Internal Improvement Tr. Fund v. Am. Educ.

Enters., LLC, 

 (Fla. 2012) (“The petitioning party

must demonstrate that the contested order constitutes ‘(1) a

departure from the essential requirements of the law, (2) resulting

in material injury for the remainder of the case[,] (3) that cannot be

corrected on postjudgment appeal.’ ”) (alteration in original) (quoting

Reeves v. Fleetwood Homes of Fla., Inc., 

 (Fla.


                                   -8-
2004)); see also Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc.,

 (Fla. 2012) (“[W]hether there is a material

injury that cannot be corrected on appeal [is] otherwise termed as

irreparable harm.”). Carmody did not question the availability of

certiorari review, but instead reiterated the points she had

successfully made to the circuit court as to Dr. DeStephens’s

qualifications.

     Following oral argument, the First District issued an opinion

dismissing the petition for lack of jurisdiction on the basis that

Shands and UF had not established irreparable harm. Carmody,

331 So. 3d at 237. The First District grounded its decision in

Williams v. Oken, a case in which we held—on similar facts—that a

district court had “exceeded the scope of certiorari review” by

weighing the evidence as to whether an expert was qualified under

the Medical Malpractice Act instead of merely “ensur[ing] that the

procedural aspects of the presuit requirements [were] met.” 

 (Fla. 2011). The First District noted that Carmody

“complied with the presuit procedural steps necessary to go forward

with her medical negligence claim, including filing a corroborating

medical expert opinion under § 766.203(2),” and that the “trial


                                 -9-
court complied with the procedural requirements of the law.”

Carmody, 331 So. 3d at 238.

     The First District also rejected Shands and UF’s argument that

the Legislature’s 2013 deletions of subsection (14)5 and portions of

subsection (5)(a) 6 fundamentally changed how Williams governed

certiorari requirements. See ch. 2013-108, § 2, Laws of Fla. But

the First District did acknowledge that other courts had reasoned to

different conclusions, certifying conflict with two post-Williams

decisions: Clare and Riggenbach. In these decisions, the district

courts granted certiorari relief from trial court rulings on medical

malpractice expert qualifications.

     Shands and UF unsuccessfully moved for rehearing, rehearing

en banc, and certification of a question of great public importance.




      5. Subsection (14) had stated that “[t]his section does not
limit the power of the trial court to disqualify or qualify an expert
witness on grounds other than the qualifications in this section.”
§ 766.102(14), Fla. Stat. (2012).
     6. The Legislature deleted all references to “similar specialty”
from subsection (5)(a), thus shrinking the pool of physicians who
could serve as corroborating experts to those within the “same
specialty” only. We consider the impact of these amendments in
Section III.


                                 - 10 -
They then successfully sought review of the certified conflict in this

Court.

                                   II

     The First District correctly found that Shands and UF failed to

satisfy the requirements articulated in Williams for certiorari review.

But it was not the petitioners’ failure to demonstrate irreparable

harm that kept them from establishing entitlement to relief; it was

their failure to show that the trial court had departed from the

essential requirements of the law.

     The common law writ of certiorari is an “extraordinary

remedy.” Mintz Truppman, P.A. v. Cozen O’Connor, PLC, 

, 579 n.6 (Fla. 2022) (quoting Martin-Johnson, Inc. v. Savage,

 (Fla. 1987), superseded by statute on

other grounds, § 768.72, Fla. Stat. (2021)). It “gives [an] upper court

the prerogative to reach down and halt a miscarriage of justice

where no other remedy exists.” M.M. v. Fla. Dep’t of Child. & Fams.,

 (Fla. 2016) (quoting Broward Cnty. v. G.B.V.

Int’l, Ltd., 

 (Fla. 2001)). Certiorari review is not

a substitute for an appeal and “is intended to be available only in

very limited circumstances.” Nader v. Fla. Dep’t of Highway Safety


                                 - 11 -
and Motor Vehicles, 

 (Fla. 2012). Likewise, the

scope of certiorari review is more constrained than that of direct

appellate review, for “[t]he writ never was intended to redress mere

legal error . . . .” Broward Cnty., 

.

     Generally, certiorari review is unavailable “to review an order

denying a motion to dismiss,” and appellate review of such nonfinal

orders is limited to “those specified under rule 9.130.” Citizens, 

. Here, the order denying the motion to dismiss does

not fall within any of the classes of orders enumerated in Florida

Rule of Appellate Procedure 9.130. As for the availability of

certiorari review, Florida courts have created an “exception . . .

when the presuit requirements of a medical malpractice statute are

at issue” since the “purpose” of the Medical Malpractice Act is “to

avoid meritless claims and to encourage settlement for meritorious

claims.” Williams, 

.

     As we said in Williams, for a district court to “determine

whether the circumstances” constitute “one of the rare cases . . . in

which certiorari review is appropriate,” 

, the district

court must answer “yes” to these questions: Has there been “(1) a

departure from the essential requirements of the law, (2) resulting


                                 - 12 -
in material injury for the remainder of the case (3) that cannot be

corrected on postjudgment appeal[?]” 

 at 1132 (quoting Reeves,

). The last two prongs together are “referred to as

irreparable harm.” Nader, 

. They are also

“jurisdictional and must be analyzed before the court may even

consider the first [prong].” Williams, 

.

     In Williams, we did not closely analyze whether the petitioner

had satisfied the irreparable harm prongs but rather “concern[ed]

ourselves with the first [prong]—whether the trial court departed

from the essential requirements of the law.” 

. We

noted that

     [s]ince it is impossible to list all possible legal errors
     serious enough to constitute a departure from the
     essential requirements of law, the district courts must be
     allowed a large degree of discretion so that they may
     judge each case individually. The district courts should
     exercise this discretion only when there has been a
     violation of clearly established principle of law resulting
     in a miscarriage of justice.

 at 1133 (quoting Haines City Cmty. Dev. v. Heggs, 

 (Fla. 1995)). This Court then concluded that certiorari

review was unavailable to the petitioner because “[w]hether the trial

court erred in finding that [the doctor] was a qualified expert under



                                - 13 -
the statute is an issue of mere legal error . . . [and] does not amount

to a violation of a clearly established principle of law resulting in a

miscarriage of justice.” Id. at 1137. 7

     Like the petitioners in Williams, Shands and UF cannot show

that the trial court departed from the essential requirements of the

law by denying their motion to dismiss. As we explained in

Williams, “Florida courts have permitted certiorari review solely to

ensure that the procedural aspects of the presuit requirements are

met.” Id. At a general level, such procedural aspects include

whether a plaintiff—before the filing of the medical malpractice

lawsuit—gave the defendant “advance notice” and provided an

“opportunity [for the defendant] to examine [the] claim.” Id. at

1136. Thus, a district court can grant certiorari review to verify

that the plaintiff submitted the corroborating affidavit of an expert




      7. Although we found that there had not been a “departure
from the essential requirements of the law”—which is a
determination on the merits—we concluded that the district court
should have “dismissed” the petition for certiorari. Williams, 

. That language, however, we generally use when
disposing of a matter prior to reaching its merits. See State Farm
Fla. Ins. Co. v. Seville Place Condo. Ass’n, Inc., 

, 109-
10 (Fla. 3d DCA 2011) (Shepherd, J., concurring) (discussing this
distinction in a similar context).

                                 - 14 -
witness. Id. at 1137. But here there is no disputing that Carmody

checked that box. See Carmody, 331 So. 3d at 238 (“Respondent

complied with the presuit procedural steps necessary to go forward

with her medical negligence claim, including filing a corroborating

medical expert opinion . . . .”).

     Instead, Shands and UF seek certiorari review of the circuit

court’s determination that Dr. DeStephens is a qualified expert.

See id. at 237 (“Petitioners assert that the trial court should have

dismissed Carmody’s medical malpractice lawsuit because her

medical doctor expert was unqualified to address the standard of

care applicable to the certified nurse practitioner who rendered care

. . . .”). But this, we have said, the district courts cannot do. See

Williams, 

 (“[W]e conclude that the First District

exceeded the scope of certiorari review when it granted the petition

to determine whether [the doctor] was a qualified expert.”).

                                     III

     Shands and UF argue that the 2013 amendments to the

Medical Malpractice Act fundamentally changed the applicability of




                                    - 15 -
Williams. 8 They contend that the 2013 amendments erased

whatever discretion trial courts had in making presuit expert

qualification determinations, meaning that all such determinations

are now so mechanical as to be “procedural” and thus subject to

certiorari review. See ch. 2013-108, § 2, Laws of Fla.

     We do not agree. The amendments limited—but did not

erase—trial court discretion in assessing the qualifications of

proposed expert witnesses. By deleting subsection (14)—which had

provided that nothing in section 766.102 “limit[ed] the power of the

trial court to disqualify or qualify an expert witness on grounds

other than the qualifications in this section”—the Legislature

eliminated an explicit and substantial basis for trial court

discretion. And by simultaneously amending subsection (5)(a)9



      8. Likewise, the Second and Fifth District Courts of Appeal
cited the 2013 amendments when deciding the conflict cases. See
Clare, 

 (“The trial court’s ruling in this case,
which effectively resurrects the prior statutory language . . .
constitutes a clear departure from the essential requirements of the
law . . . .”); Riggenbach, 

 n.1 (discussing the “effect
of the [2013] amendment[s]”).

      9. Section 766.102(5)(a) is no longer at issue in this case
because Carmody dropped Dr. Friedman—a specialist—from the
suit.


                                 - 16 -
such that any corroborating expert who is to testify against a

specialist must specialize in the “same”—as opposed to “same or

similar”—specialty, the Legislature eliminated language that

implicitly empowered the courts to exercise discretion in a

significant subset of medical malpractice actions.

     Yet section 766.102 still calls on the trial courts to make some

discretionary decisions. For example, under subsection (5)(c)—

which applies here—the trial court must determine whether an

expert who is to testify against neither a specialist nor a generalist

has “devoted professional time” to (1) “[t]he active clinical practice

of, or consulting with respect to, the same or similar health

profession” as the defendant; (2) “[t]he instruction of students . . . in

the same or similar health profession” as the defendant; or (3) “[a]

clinical research program . . . in the same or similar health

profession” as the defendant. § 766.102(5)(c)1.-3., Fla. Stat.

(emphasis added). A trial court cannot make a “same or similar

health profession” determination without considering evidence and

using its discretion. And even under amended subsection (5)(a),

there are and will continue to be borderline cases where trial courts




                                 - 17 -
must weigh evidence in determining if an expert is a practitioner

within the “same specialty” 10 as the defendant. 11

     Because trial courts must continue to exercise discretion in

making some of these presuit qualification determinations, not all of

their findings qualify as “process-related deficienc[ies]” subject to

certiorari review. See Carmody, 331 So. 3d at 238. Instead, some

of these findings are “sufficiency of the evidence” determinations,

and “granting a petition for writ of certiorari to review” them

remains “inappropriate.” Williams, 

.

                                   IV

     While the burden of defending against litigation under

ordinary circumstances does not constitute irreparable harm, in



    10. Neither “specialty” nor “same specialty” is defined in
chapter 766.

      11. In its amicus brief, the Florida Justice Association
identifies several such cases, including Patides v. Johns Hopkins All
Children’s Hospital, Inc., No. 19-008484-CI (Fla. 6th Cir. Ct.)
(involving whether an expert certified in the specialty of pediatrics
and the subspecialty of pediatric cardiology satisfies the “same
specialty” requirement vis-à-vis a defendant certified in the
subspecialties of pediatric neonatology and pediatric interventional
cardiology), and Dontineni v. Sanderson, 

, 170-71
(Fla. 5th DCA 2022) (involving whether an expert certified in
internal medicine can testify under subsection (5)(a) against a
defendant certified in internal medicine and as a hospitalist).

                                 - 18 -
enacting the presuit requirements of the Medical Malpractice Act,

the Legislature elected to treat differently the burden of defending

against meritless medical negligence claims. See § 766.201(2), Fla.

Stat. (“It is the intent of the Legislature to provide a plan for prompt

resolution of medical negligence claims.”). Before and after the

2013 amendments, the Medical Malpractice Act’s presuit

requirements have served a jurisdictional purpose, for “no action

shall be filed . . . unless the attorney filing the action has made a

reasonable investigation . . . to determine that there are grounds for

a good faith belief that there has been negligence . . . .”

§ 766.104(1), Fla. Stat. (emphasis added). And when an action has

been filed but the plaintiff has failed to comply with the presuit

requirements, the Legislature demands that “the court shall dismiss

the claim.” § 766.206(2), Fla. Stat. (emphasis added). Subject to all

other federal and state constitutional requirements, the Legislature

may generally limit what tort claims can be brought at state law,

and how they are brought, as long as it does not run afoul of article

1, section 21 of Florida’s Constitution (“The courts shall be open to

every person for redress of any injury, and justice shall be

administered without sale, denial or delay.”). See Sebring Airport


                                 - 19 -
Auth. v. McIntyre, 

 (Fla. 2001) (“Where a

statute does not violate the federal or state Constitution, the

legislative will is supreme . . . .”) (quoting City of Jacksonville v.

Bowden, 

 (Fla. 1914)). Carmody does not argue

that the Legislature has exceeded its constitutional authority.

     And it is within our constitutional authority to ensure that

Florida’s procedural rules of court manifest the substantive legal

enactments of the Legislature. See State v. Gaines, 

 (Fla. 2000) (“[T]his Court alone has the power to define

the scope of interlocutory appeals . . . .”); see also Osceola Cnty. v.

Best Diversified, Inc., 

 (Fla. 5th DCA 2002)

(“[T]he Florida Constitution does not authorize the Legislature to

provide for interlocutory appeals. . . . [O]nly if the Florida Supreme

Court incorporates the statutory language into the appellate rules

can appellate jurisdiction be broadened.”). We cannot say that, in

its current form, Florida Rule of Appellate Procedure 9.130

adequately identifies all nonfinal orders appropriate for

interlocutory review. Therefore today, on our own motion, we have

also amended Florida Rule of Appellate Procedure 9.130(a)(3) to

provide for interlocutory review of nonfinal orders that deny a


                                  - 20 -
motion to dismiss on the basis of the qualifications of a

corroborating witness under section 766.102(5)-(9), Florida

Statutes. 12

                                   V

     Because the circuit court’s allegedly erroneous determination

that Dr. DeStephens satisfied the Medical Malpractice Act’s presuit

requirements does not constitute an “essential departure from the

law,” certiorari relief is unavailable. We therefore approve the First

District’s decision below to the extent that it is consistent with our

decision here, and we disapprove the Second and Fifth Districts’

decisions in Clare and Riggenbach, respectively.

     It is so ordered.

MUÑIZ, C.J., and CANADY, GROSSHANS, and FRANCIS, JJ.,
concur.
LABARGA, J., concurs in result and dissents in part with an
opinion.
SASSO, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.




     12. The specific amendment is reflected in the appendix to In
re Amendment to Florida Rule of Appellate Procedure 9.130, No.
SC2023-0701 (Fla. July 6, 2023).

                                 - 21 -
LABARGA, J., concurring in result and dissenting in part.

     I agree with the majority’s conclusion that “the circuit court’s

allegedly erroneous determination that Dr. DeStephens satisfied the

Medical Malpractice Act’s presuit requirements does not constitute

an ‘essential departure from the law.’ ” Majority op. at 21. Thus, I

concur in the result to that extent.

     However, the majority opinion further explains that in deciding

this case, the majority determined it appropriate to unilaterally

“amend[] Florida Rule of Appellate Procedure 9.130(a)(3) to provide

for interlocutory review of nonfinal orders [in medical malpractice

cases] that deny a motion to dismiss on the basis of the

qualifications of a corroborating witness.” Id. at 20-21.

     This unilateral amendment via separate opinion, see In re

Amendment to Florida Rule of Appellate Procedure 9.130, No.

SC2023-0701 (Fla. July 6, 2023), will permit interlocutory review of

such nonfinal orders in the future. I believe that an amendment of

this significance should receive the appropriate rules committee

referral and consideration beforehand. Consequently, I dissent to

this portion of the majority’s analysis, consistent with my




                                - 22 -
dissenting opinion in the separate opinion amending rule

9.130(a)(3).

Application for Review of the Decision of the District Court of Appeal
     Certified Direct Conflict of Decisions

     First District – Case No. 1D21-634

     (Alachua County)

Christine R. Davis of Davis Appeals, PLLC, Tallahassee, Florida,

     for Petitioners

Kennan G. Dandar and Timothy M. Dandar of Dandar & Dandar,
P.A., St. Petersburg, Florida; and Adam Richardson of Burlington &
Rockenbach, P.A., West Palm Beach, Florida,

     for Respondent

Andrew S. Bolin of Bolin Law Group, Tampa, Florida,

     for Amici Curiae Florida Hospital Association, Florida Medical
     Association, and the Litigation Center of the American Medical
     Association

Kansas R. Gooden of Boyd & Jenerette, PA, Miami, Florida; and
Jessica N. Cochran of Bush, Graziano, Rice & Platter, P.A., Tampa,
Florida,

     for Amicus Curiae Florida Defense Lawyers Association

Bryan S. Gowdy and Dimitrios A. Peteves of Creed & Gowdy, P.A.,
Jacksonville, Florida,

     for Amicus Curiae the Florida Justice Association




                                - 23 -