The plaintiff's service of the statutorily required written corroborating affidavit of an expert in the "same specialty" as the defendant health care provider prior to the expiration of the statute of limitations precludes dismissal with prejudice of the plaintiff's medical malpractice complaint even though the affidavit was not contemporaneously served with the plaintiff's pre-suit notices of intent to initial litigation. In Martinez v. Ortiz, No. 2D21-653, 2022 WL 4389891 (Fla. 2d DCA Sept. 23, 2022), the Second District therefore reversed the trial court's dismissal order predicated on the fact that the plaintiff's notices of intent were not accompanied by the required written corroborating medical expert opinion and that the plaintiff's expert did not practice in the "same specialty" as the defendant doctor.

With regard to the timeliness of the corroborating medical expert affidavit, the Martinez court explained that while Section 766.203(2) requires a verified written medical to be provided when the notice of intent is served, "the plaintiff can cure this deficiency by providing the affidavit before the expiration of the statute of limitations." In Martinez, it was undisputed that the plaintiff provided an expert corroborating affidavit to the defendant ophthalmologist and his eye center before the statute of limitations expired. The appellate court accordingly concluded that plaintiff cured any deficiency.