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.

Pre-Suit Expert Requirements In Med-Mal Action Pursuant To Section 766.203

In Hunt v. Huppman (2D09-4684), the Second District granted a petition for certiorari because the plaintiff "with medical negligence presuit notice requirements."  The Second District held:

Because Huppman did not provide a corroborating affidavit by a qualified medical expert in compliance with section 766.203(2), Florida Statutes (2007), the circuit court departed from the essential requirements of the law in denying Vein Center's motion to dismiss.

The Court stated:

In June 2008, Huppman served her notice of intent to initiate litigation ("NOI") pursuant to section 766.203(2).1 In the NOI, Huppman alleged that she was injured after undergoing a treatment known as Lumenis One, which involved the use of intense pulsed light ("IPL") equipment to improve the appearance of age spots on her body.  Huppman did not serve a corroborating medical expert opinion with the NOI as required by section 766.203 because Huppman believed Vein Center had waived its right to medical corroboration by failing to provide Huppman with medical records.

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Huppman subsequently filed a complaint alleging medical negligence against Vein Center.  Vein Center filed a motion to dismiss in which it argued, among other things, that the complaint should be dismissed based on Huppman's failure to attach a medical expert opinion to the NOI. In response, Huppman maintained that Vein Center waived the medical expert opinion requirement by failing to produce requested medical records. However, Huppman also served Vein Center with the affidavit of Terri Boyert as a corroborating medical expert opinion. 

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Vein Center then filed the petition for writ of certiorari that is currently before this court. Vein Center argues that the circuit court departed from the essential requirements of the law in failing to dismiss the complaint based on Huppman's failure to provide a corroborating affidavit by a qualified medical expert in compliance with section 766.203(2). Preliminarily, we note that "the courts of this state have uniformly recognized the availability of certiorari review in cases where the presuit notice requirements of chapter 766 have not been met." Oken v. Williams, 23 So. 3d 140, 144 (Fla. 1st DCA 2009). We review the sufficiency of the corroborating affidavit in order to comply with our duty to enforce the policy behind the presuit notice requirements. Id. at 145. 

***

Thus, under sections 766.203(2), 766.202(6), and 766.102(5), the written expert opinion that accompanies a claimant's notice of intent must be rendered by a person who (1) is "duly and regularly engaged in the practice of his or her profession," (2) has a degree in health care from a college or university, (3) is a licensed health care provider, and (4) satisfies the expert witness requirements set forth in section 766.102(5).

***

Boyert's CV does not reflect, nor has Huppman ever asserted, that Boyert has a degree in health care from a college or university. Boyert's CV contains only these vague references to any college education: "Surgical Assistant, TCC College, Tacoma, Washington, 1987" and training at the Eton Medical Institute. Additionally, Boyert's CV does not reflect that Boyert is a licensed health care provider, and Huppman has conceded that Boyert is not licensed. Because Boyert does not meet these two requirements, she is not qualified to render a medical expert opinion under section 766.203(2) regardless of whether she meets the additional requirements of section 766.102(5).

***

Although Boyert may be adequately trained regarding the manner and method in which the Lumenis IPL equipment was operated based on her experience training staff on the operation of the machine, we disagree with the circuit court's conclusion that she meets the statutory criteria of a presuit witness under chapter 766...The legislature has clearly indicated its intent to narrow the class of person who is qualified to give medical expert opinions by amending the statutory scheme in 2003.

***

As an alternative argument against granting certiorari in this case, Huppman claims that she has cured any defect in her medical expert opinion by submitting a second affidavit by Dr. Wayne Houston. The Vein Center responds that the affidavit was not timely filed within the applicable statute of limitations and, in fact, was filed after the circuit court entered the order that is now before this court. If this affidavit was submitted within the applicable statute of limitations, it may indeed comply with the presuit notice requirements. However, Dr. Houston's affidavit was not considered by the circuit court, and it would be improper for this court to consider it for the first time on appeal.

Article About Derespina v. North Broward Hosp. Dist., 19 So. 3d 1128 (Fla. 4th DCA 2009)

Derespina v. North Broward Hosp. Dist., 19 So. 3d 1128 (Fla. 4th DCA 2009), discussed in a prior post HERE, was referenced in the article below:

And the Defense Wins - Feb. 10, 2010 (Derespina)

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).

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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).

Florida's Whistleblower Act Complaint Dismissed For Failing To Seek Relief From the Florida Commission on Human Relations Before Filing Action

In University of Central Florida v. Turkiewicz (5D09-1243), the Fifth District granted a writ of certiorari and quashed an order denying a motion to dismiss a complaint filed under Florida's Whistleblower's Act.  The court stated "UCF contends that Turkiewicz did not comply with statutory conditions precedent before filing suit and that requiring UCF to continue with the litigation will cause it irreparable harm for which there is no remedy on appeal. Because we agree that the Act requires that Turkiewicz seek relief from the Florida Commission on Human Relations ["FCHR"] before filing a civil action, and there is no dispute that Turkiewicz failed to seek relief from the FCHR, we grant the writ and quash the order."

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.

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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.

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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.

Is It Appropriate For An Appellate Judge To Conduct Internet Research? AND MedMal Claim Dismissed For Improper Presuit Affidavit

In Oken et. al. v. Williams (1D08-3398), the First District granted certiorari because the "trial court departed from the essential requirements of law in denying petitioners’ (defendants, Keith Robert Oken, M.D., and Mayo Clinic of Florida) motion to dismiss respondent’s (plaintiff, Ted Williams) malpractice action for failing to timely comply with the statutory presuit requirements by failing to attach a corroborating affidavit of a “medical expert” as defined by section 766.202(6), Florida Statutes."  The court also has an extremely interesting discussion about whether it is appropriate for judges (in this case the judge writing the appellate opinion) to consult internet sources not cited by a party.

The court stated:

In this case, petitioner Oken, “the health care provider against whom . . . the testimony is offered,” is a board certified cardiologist. There is no dispute that respondent’s expert does not specialize in cardiology. Thus, to corroborate respondent’s claim under section 766.102(5)(a)(1), Florida Statutes, respondent’s expert must specialize “in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients.”...Florida courts have consistently affirmed the importance of an appropriate verified medical expert opinion as a prerequisite to file suit for medical malpractice."

As to the internet research, the majority stated in a footnote that covers three pages: "No one can argue that indiscriminate, independent internet research by a judge involving subjective facts, non-legal opinions and studies, or the use of unknown or unverified websites not presented by the parties would create significant concerns. The use of generally-known knowledge, however, which is capable of accurate and ready determination from sources whose accuracy cannot reasonably be questioned, does not present the same concerns."

Judge Browning begins a 12 page dissent by stating:

Because the majority opinion transgresses binding precedent of this Court and ignores persuasive non-binding, out-of-state precedent by relying on Internet information not contained in the case record and unknown to the parties; fails to follow relevant procedural precedent of substantial persuasive value; and injects the judiciary into adversarial territory heretofore untraveled, I am compelled to dissent.

Dismissal Without Prejudice for Failure to Comply with Presuit Notice if Statute of Limitation Has Not Run

Today, the Fourth DCA issued its opinion in Villa Maria Nursing and Rehabilitation Center, Inc. v. South Broward Hospital District (4D07-4433). The opinion discusses (among other things) whether a complaint should be dismissed with or without prejudice when the plaintiff fails to comply with a statutory presuit notice provision. The court reversed the circuit court and held that if the statute of limitations has run, it should be with prejudice. The relevant portion of the opinion is below:

Next, the hospital contends that the nursing home failed to comply with section 768.28(6)(a), Florida Statutes (2007), by failing to present its claim in writing to the Department of Financial Services within three years after the claim arose. At the summary judgment hearing, counsel for the nursing home requested a n opportunity to cure the notice problem by providing notice to the Department of Insurance.

Compliance with the notice requirement of section 768.28 was a condition precedent to this lawsuit against the hospital. See Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1022-23 (Fla. 1979); Lindberg v. Hosp. Corp. of Am., 545 So. 2d 1384, 1387 (Fla. 4th DCA 1989) (citing Commercial Carrier). The notice is a “temporary procedural bar to a lawsuit against the State or one of its subdivisions.” Widmer v. Caldwell, 714 So. 2d 1128, 1129 (Fla. 1st DCA 1998). In Lee v. S. Broward Hosp. Dist., 473 So. 2d 1322 (Fla. 4th DCA 1985), this court permitted the amendment of a complaint to allege compliance with section 768.28(6) where notice to governmental agencies was given subsequent to the filing of the lawsuit but within the statute of limitations period. Another appropriate response to a motion raising a plaintiff’s failure to comply with the statute is to dismiss the case without prejudice, where the applicable statute of limitations has not run at the time of dismissal and it is therefore possible to give the statutory notice prior to the case being barred by the statute of limitations. See Wemett v. Duval County, 485 So. 2d 892 (Fla. 1st DCA 1986); Von Drasek v. City of St. Petersburg, 777 So. 2d 989, 991 (Fla. 2d DCA 2000).