Florida High Court Overturns Dismissal in Medical Malpractice Case

Date Posted:

May 21, 2024

Post Author

Andres Beregovich

On May 17, 2024, the Sixth District Court of Appeal of Florida issued a significant ruling in the case of Phengsanith Pradaxay vs. Dr. James Erasmus Kendrick, IV, and others. This decision reversed the lower court’s dismissal of Pradaxay’s medical malpractice lawsuit. Here’s a simplified breakdown of the case and the court’s ruling.

Background of the Case

Phengsanith Pradaxay filed a lawsuit against Dr. James Kendrick, a gynecological oncologist, and AdventHealth Medical Group, claiming that Dr. Kendrick performed an unnecessary surgery that caused her harm. Before filing the lawsuit, Pradaxay conducted a presuit investigation, a requirement under Florida law for medical malpractice cases. This process involves getting a verified medical expert opinion to support the claim of medical negligence.

Dr. Martin Gubernick, a board-certified OB-GYN, provided the necessary affidavit for Pradaxay, asserting that Dr. Kendrick’s surgery was unnecessary and negligent. However, Dr. Kendrick contested this, arguing that Dr. Gubernick, not being a gynecological oncologist, did not have the “same specialty” required to provide a valid expert opinion.

The Lower Court’s Decision

The trial court sided with Dr. Kendrick, agreeing that Dr. Gubernick’s lack of gynecological oncology specialization disqualified him as an expert witness. Consequently, the court dismissed Pradaxay’s case with prejudice, meaning she couldn’t refile the case, especially since the statute of limitations had expired.

The Appeal

Pradaxay appealed the decision, arguing that gynecological oncology is a subspecialty of gynecology, and thus, Dr. Gubernick’s qualifications were sufficient under Florida law.

The Appellate Court’s Analysis

The appellate court examined the relevant statutes to determine whether Pradaxay complied with the presuit requirements. According to Florida Statute § 766.203(2), a medical expert must corroborate that there are reasonable grounds for a medical malpractice claim. The law defines a medical expert as someone who meets specific qualifications, including specializing in the same specialty as the defendant.

Dr. Kendrick argued that because gynecological oncology requires additional training and certification beyond general OB-GYN, it should be considered a separate specialty. The trial court had agreed with this argument, stating that the terms “specialty” and “sub-specialty” are distinct, and the law did not recognize “sub-specialty” in this context.

The Reversal

However, the appellate court disagreed with the trial court’s interpretation. The court pointed out that both Dr. Kendrick and Dr. Gubernick are board-certified in OB-GYN, meaning they share the same primary specialty. The appellate court emphasized that the purpose of the presuit process is to ensure reasonable grounds for a claim, not to impose overly restrictive requirements on plaintiffs.

The court also highlighted the legislative intent to make access to courts easier for plaintiffs in medical malpractice cases. By construing the statute in a manner that favors access to courts, the appellate court determined that the term “specialty” should be interpreted broadly. Since gynecological oncology is a subspecialty of gynecology, Dr. Gubernick’s affidavit met the statutory requirements.


The appellate court concluded that Pradaxay had complied with her presuit obligations. Therefore, the dismissal of her case was premature. The court reversed the trial court’s decision and remanded the case for further proceedings, allowing Pradaxay to continue her lawsuit.


This ruling underscores the importance of understanding the nuances of medical specialties and subspecialties in medical malpractice cases as it relates to presuit expert qualifications. It also reaffirms the intent of Florida’s legislature to provide fair access to the courts for individuals seeking justice in medical negligence cases.

Andres I. Beregovich, of The Beregovich Law Firm, P.A. Orlando, for Appellant.
Christian P. Trowbridge, J. Charles Ingram, and Dinelia Concepcion, of Estes, Ingram, Foels & Gibbs, P.A., Maitland, for Appellees.