Thursday, October 15, 2009

Presuit Affidavit From Sister In Med-Mal Case Properly Stricken

In Derespina v. North Broward Hospital District d/b/a Coral Springs Medical Center, 19 So. 3d 1128 (Fla. 4th DCA 2009) (4D08-2670), the Fourth District affirmed the trial court's conclusion that a presuit notice in a medical malpractice action cannot be from a relative of the alleged victim.  The court stated:
Derespina alleged that the stocking was too small and caused blistering and eventually scarring. She instituted a medical malpractice action against NBHD.
Accompanying Derespina’s notice of intent to initiate litigation was the affidavit of her sister, a nurse with forty-six years of experience, who was also the mother of Derespina’s attorney. The affiant stated she had reviewed Derespina’s medical records and concluded the medical malpractice claim had merit.
After completing the pre-suit investigation a n d prior to filing a complaint for medical negligence, the plaintiff must notify the defendant of her intent to initiate litigation. § 766.106(2). Section 766.203(2) requires that the notice be corroborated by a “verified written medical expert opinion” furnished to the defendant. § 766.203(2). If a court finds the plaintiff’s notice of intent to initiate litigation does not comply with the pre-suit investigation requirements of the statute, a court shall dismiss the claim. § 766.206(2).
NBHD relies on the case of Grau v. Wells, in which a patient brought a medical malpractice suit against his doctor after plastic surgery. 795 So.2d 988, 989 (Fla. 4th DCA 2001)...The court concluded that the plaintiff could have easily obtained a nurse without family ties to give an expert opinion in the Fort Lauderdale area, but none was ever sought. Based upon the findings of the trial court after an evidentiary hearing, the trial court’s conclusion that the investigation of malpractice conducted by the plaintiff did not constitute the reasonable investigation contemplated by the statute was not an abuse of its discretion.
Derespina v. North Broward Hospital District DBA Coral Springs Medical Center.op
*Disclaimer: Jeffrey Kuntz and/or GrayRobinson, P.A. were involved in the above-referenced action.


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