Monday, June 21, 2010

Certiorari Granted For Failing To Comply With Med-Mal PreSuit Notice Requirements

In South Miami Hospital, Inc. v. Perez (3D10-1189), the Third District granted certiorari and quashed the trial court's order denying a motion to dismiss for failure to comply with the presuit notice requirements of chapter 766, Florida Statutes.  The court stated:
His widow, Maria Perez, as personal representative of the Decedent’s estate (the “respondent”), filed a lawsuit asserting a count of negligence against the Hospital in connection with her husband’s death. Respondent did not comply with the presuit requirements of chapter 766, Florida Statutes (2008), which include presuit notice as set forth in section 766.106(2)(a), prior to filing the lawsuit. Upon motion by the Hospital, the complaint was dismissed for the respondent’s failure to comply with chapter 766. The respondent then filed an amended complaint, removing the references to the Decedent being a patient at the Hospital and recharacterizing the Decedent as a “business invitee in [the Hospital].” The Hospital filed a motion to dismiss the amended complaint on the same grounds as its previous motion, but it was denied.
The court stated that the respondent "disingenuously attempts to avoid the requirements of Chapter 766 by characterizing the Decedent as a mere “business invitee” and arguing that the claim is in fact not a medical negligence or medical malpractice claim.  The court then rejected the respondent's "argument as it flies in the face of logic" and quashed the order under review because the action should have been dismissed.


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