This Week’s Oral Arguments: Hearsay, Audio Recordings, and Medical Malpractice Issues

By Scott Kalish
On Thursday the Court will hear oral argument in McDade vs. State, SC13-1248 on evidentiary issues that arose from Mr. McDade’s trial and subsequent conviction for sexual battery of his step-daughter. Mr. McDade appealed, arguing that the trial court made two evidentiary errors. First, he argues that the improperly allowed the jury to hear an audio recording that was taken without his knowledge. The trial court also allowed the testimony of the victim’s boyfriend, which consisted of alleged hearsay statements not subject to any applicable exception to the hearsay rule. The District court affirmed the defendant’s conviction. However they did certify the question as to the admissibility of the recording to as a question of great public importance.
On Thursday the court will also hear McCulla et al. vs. Rell, et al., SC12-2598, a dispute concerning a medical malpractice suit. In 2011 Mr. McCulla filed a medical malpractice suit against his podiatrist for two injuries to his foot that were allegedly caused by operations performed by Dr. Rell. Dr. Rell filed a motion to dismiss alleging that he had not received proper notice of the malpractice suit pursuant to section 766.203, Fla. Stat.(2). The statute provides that before filing suit the plaintiff must obtain a corroborating opinion from a medical expert that the injuries in question were caused by medical negligence. The letter in question however does not explicitly state that in the expert’s opinion Dr. Rell’s care fell below the acceptable standard of care and was cause of Mr. McCulla’s injuries. The trial court ruled that the letter obtained by their expert was sufficient to satisfy the notice requirement. However, the Second District disagreed and held that the expert opinion did not satisfy the notice requirement. The Supreme Court may ultimately decide how specific and explicit a corroborating letter must be before a medical malpractice suit may be brought.