PBCBA BAR BULLETINS pbcba_bulletin_december 2018 | Page 11

PERSONAL INJURY C o r n e r
DISMISSAL OF A MALPRACTICE SUIT
TED BABBIT
A very recent opinion of the Supreme Court
of Florida in Morris v. Muniz, No. SC16-
931(Fla. 09/06/18), precludes the dismissal
of a medical malpractice suit based upon
hyper technical restrictions of the presuit
screening process. The trial court dismissed the suit even
though the Statute of Limitations had
expired so that presuit could not be refiled.
The First District Court of Appeals affirmed
the trial court in Morris v. Muniz, 189 So. 3rd
348, 351 (Fla. 1st DCA 2016).
This case arose as a result of the death
of a 20 year-old woman which allegedly
occurred because of completely ignoring
serious complaints of nausea and vomiting
during a women’s pregnancy to such a
degree that during that pregnancy, she lost
a total of 36 lbs. The Supreme Court reversed the First
District holding that the expert who
provided the pre-suit Affidavit was more
than qualified. At page 5 the Supreme
Court reiterated previous opinions as to
the purpose behind the pre-suit screening
process.
Plaintiff’s decedent, in an attempt to
comply with Fla. Stat. 766 provided a
Notice of Intent and an Affidavit of an
Obstetrician which indicated that she had
practiced Obstetrics for 30 years, was board
certified and had delivered over 14,000
babies. The Affidavit also indicated that
she had been engaged in fulltime patient
care until shortly before her Affidavit was
signed. The Affidavit also indicated that
she had been a student in law school for
some of the 3 year period prior to signing
the Affidavit.
The Defendants argued that it was
improbable that the expert could meet the
qualifications required of Fla. Stat. 766.102
in that she had devoted her professional
time during the 3 years immediately
preceding the date of the occurrence
testified to by going to law school. The
trial court agreed that the Defendants were
entitled to take the deposition of plaintiff’s
expert to review her qualifications.
During that deposition, the expert clearly
established that she had in fact practiced
medicine and had gone to law school
at the same time.
Plaintiff’s counsel
objected to a number of the questions at
the deposition and the defendants claimed
that such objections thwarted their ability
to review the expert’s qualifications and
thus dismissal was warranted under Fla.
Stat. 766.205(2) which requires the good
faith participation of the parties in the
informal presuit discovery process.
“The
Legislature’s
intent
notwithstanding, we have stated
that the presuit process restrict[s]
plaintiff’s ability to bring medical
malpractice claims.” Dockswell v.
Bethesda Memorial Hospital, Inc.,
210 So. 3rd 1201, 1205 (Fla. 2017).
Therefore, the requirements of the
presuit process must be “interpreted
liberally so as not to unduly restrict
a Florida citizen’s constitutionally
guaranteed access to the courts.”
Kukral v. Mekras, 679 So. 2d 278, 279
(Fla. 1996).
In Kukral, supra, the Supreme Court
explained what the Affidavit accompanying
a Notice of Intent is supposed to do. At page
6 the Court explained:
The expert opinion to be supplied is
not one which delineates how the
defendants were negligent. Section
766.104 refers to a written medical
opinion “that there appears to be
evidence of medical negligence.”
Section 766.203(2) provides that
the medical expert opinion is
for “corroboration of reasonable
grounds
to
initiate
medical
negligence litigation.” And [section]
766.205(1)
specifically
provides
that the medical opinion need
only corroborate that “there exists
reasonable grounds for a claim of
negligent injury.” Obviously, the
corroborative medical opinion adds
nothing to the Plaintiffs’ notice of
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their claim. It merely assures the
Defendants, and the court, that a
medical expert has determined
that there is justification for the
Plaintiffs’ claim, i.e., that it is not a
frivolous medical malpractice claim.
Kukral, 679 So. 2d at 282 (quoting Stebilla
v. Mussallem, 595 So. 2d 136 (Fla. 5th DCA
1992)).
Stated another way “[r]equiring a written
expert opinion as part of the presuit
investigation”
simply “assures the
defendant that the claim was preceded
by a reasonable investigation.” Largie v.
Gregorian, 913 So. 2d 635, 639 (Fla. 3rd DCA
2005).
Furthermore, as the issue of when the
expert needs to be engaged in the practice
of medicine, the Court concluded that the
three year period precedes the occurrence
of the malpractice not the date of the
Affidavit. At page 7 the Court holds:
“Further, nowhere in section
766.202(6) does it state that the expert
must be duly and regularly engaged
at the time the opinion is offered,
when the role of the medical expert
is to provide an opinion regarding
the prevailing professional standard
of care, or the professional standard
of care existing at the time of the
occurrence that is the basis for
action. See §§766.102(1); 766.203(2).
We cannot agree with a construction
that not only runs counter to the
purpose of the presuit process,
which is to facilitate the resolution
of medical malpractice claims, but
also has the effect of infringing on
the constitutional right to access
the courts.
The Supreme Court holds that when a
presuit expert’s affidavit clearly establishes
that the expert is qualified to sign that
affidavit, the Defendants are not permitted
to look behind the affidavit unless they
have evidence that statements concerning
the experts qualifications in the expert’s
affidavit are false.
(con’t on pg 12)