Thursday, August 6, 2009

Third DCA Grants Certiorari and Reverses Denial of Motion to Dismiss

In Cedars Health Care Group, Ltd., et al v. Metha, et al (3D08-2980), the Third District granted the petition for certiorari without prejudice for the plaintiff to amend the complaint "on the ground that they are immune from suit under section 395.0193, Florida Statutes (2002)." The court held:

The defendants claim that they are immune from suit pursuant to subsection 395.0193(5) because the allegations against them stem from the peer review process outlined in section 395.0193. They further argue that in order to overcome the subsection 395.0193(5) immunity, the plaintiffs were required to plead intentional fraud with particularity and that the plaintiffs have failed to do so.

We agree with the defendants. Subsection 395.0193(5) offers immunity for "any action taken without intentional fraud in carrying out the provisions of this section [395.0193]."

Ordinarily, of course, an order denying a motion to dismiss is not reviewable in this court. However, this case falls within an exception to the general rule. Since subsection 395.0193(5) provides for immunity from suit, the denial order can be reviewed by way of certiorari at this time.


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