Wednesday, November 18, 2009

Fourth District Grants Certiorari And Orders Complaint Dismissed For Failure To Comply With Presuit Affidavit Requirement Of Section 766.106(2), Florida Statutes

In Dr. Navarro’s Vein Centre of the Palm Beach, Inc. v. Miller (4D09-2407), the Fourth District granted a petition for certiorari and quashed the trial court's order based upon the plaintiff/appellee's failure to comply with section 766.106(2), Florida Statutes (2008).  The court stated:

The plaintiff filed a complaint against the defendant doctor and her professional association for damages arising from a laser hair removal procedure. The plaintiff alleged that the doctor’s negligence in performing the procedure caused severe burns. The complaint specifically alleged that the doctor was not performing medical treatment, but rather cosmetic electrolysis as defined by section 478.42(5), Florida Statutes (2008).
The well-accepted general rule is that the allegations of a complaint must be accepted as true for purposes of a motion to dismiss. Gowan v. Bay County, 744 So. 2d 1136, 1138 (Fla. 1st DCA 1999). However, when the factual allegations belie the conclusory legal allegations, the trial court is permitted to, indeed must, apply the law to the well-pleaded factual allegations and decide the legal issue of whether the complaint sounds in simple or medical negligence. Brandon v. Pinellas County, 141 So. 2d 278, 279 (Fla. 2d DCA 1962) (“Mere statements of opinions or conclusions unsupported by specific facts will not suffice.”).
While we normally do not review orders denying motions to dismiss because there is an adequate remedy at law in the final appeal, declining to do so in this case would cause irreparable harm. The Medical Malpractice Reform Act was designed to provide cost-saving pretrial procedures as a response to the medical malpractice crisis. To allow this case to proceed to a possible judgment, only to be reversed would eliminate the very cost-saving procedures for which the Act was created. Here, “relief by direct appeal would be no relief at all.” Pearlstein, 500 So. 2d at 587. We therefore find the requisite irreparable harm.
We grant the petition, issue the writ, quash the order, and remand the case to the trial court for dismissal of the plaintiff’s complaint for failure to comply with the presuit screening process of section 766.106(2).


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