Florida appeals court reinstates lawsuit against ophthalmologist

The Florida Second District Court of Appeal has given new life to a woman’s claims that she suffered permanent eye damage when her ophthalmologist misdiagnosed her during nasal surgery.

The court said in its ruling that doctor "split hairs" by arguing that the woman's expert didn't operate in the same specialty.

According to a news release, the three-judge Florida Second District Court of Appeal panel overturned a lower court ruling dismissing Maria Martinez's suit against Don John Perez Ortiz, MD, and Perez Eye Center PL.

In the ruling, the judges maintained that an expert testifying for Martinez's expert, Harry Hamburger, MD, is qualified because he is also a board-certified ophthalmologist, even if he has also completed additional education.

"As a board-certified ophthalmologist, Dr. Hamburger is clearly qualified to testify as an expert in ophthalmology," the panel wrote in its opinion. "The fact that he completed an additional fellowship in neuro-ophthalmology does not undermine the fact that he remains a board-certified ophthalmologist — just like Dr. Perez Ortiz."

According to court documents, the lawsuit alleges that Martinez underwent surgery for the removal of nasal polyps, and later complained of swelling and pressure behind and around her left eye.

Court documents also noted that Martinez was referred to Perez Ortiz, who she claimed in court documents misdiagnosed her condition and the treatment he did provide did not deal with her condition, resulting in permanent vision damage.

Moreover, the court’s opinion noted that prior to taking legal action, Perez Ortiz was by Martinez with a notice of intent to initiate litigation, however this didn’t include any written, sworn medical corroboration when she mailed it, the opinion stated.

Court documents note that lawyers representing Perez Ortiz maintained that this should have ended her claims, but the judges wrote in the opinion that under state law, Martinez cured that deficiency by submitting Hamburger's affidavit of merit before the statute of limitations on her claims had expired.

Court records further show that the lawsuit was rejected by the trial court, which opined that Hamburger, a neuo-ophthalmologist and not just an ophthalmologist, did not work in the same specialty as Perez Ortiz.

However, in the opinion, the appellate court judges pointed out that the trail court was narrow in its view and that Hamburger’s extra education and fellowship doesn’t impact his ability to serve as an expert witness about Perez Ortiz’s work.

“It is undisputed that Dr. Perez Ortiz is a board-certified ophthalmologist," the appellate panel wrote in its decision. "It is also undisputed that Dr. Hamburger is a board-certified ophthalmologist.”

The judges maintained that Perez Ortiz and Perez Eye Center “split hairs” in their contention that Hamburger doesn’t work in the same specialty. It noted that after Hamburger finished his

ophthalmology residency, he completed a one-year fellowship in neuroophthalmology.

“It follows that the trial court erred in dismissing Ms. Martinez's action with prejudice,” the appellate court concluded in its decision. “Accordingly, we reverse the trial court's order of dismissal and remand with directions that the trial court reinstate Ms. Martinez's medical malpractice action.”