Although it’s common knowledge among Florida’s medical malpractice practitioners that state law requires a complaint for medical negligence to be accompanied by an expert affidavit, it is not uncommon for some to not realize that simply having the affidavit is not necessarily sufficient to comply with the requirements of the law. Indeed, courts in our state regularly dismiss medical negligence cases supported by an affidavit because the plaintiff fails either to provide sufficient notice to the defendant of his or her intent to sue or to provide the defendant with sufficient access to information about the expert during this notice period. These subsidiary requirements under Florida’s medical negligence laws were at issue in a recent decision from Florida’s First District Court of Appeal, Morris v. Muniz.
Morris arose from an alleged act of medical negligence that occurred at Gulf Coast Medical Center. Specifically, the plaintiff alleged that the negligence of various medical professionals resulted in the death of her daughter, who died three days after the plaintiff gave birth to her. Following her loss, the plaintiff initiated a wrongful death lawsuit against various defendants, including Gulf Coast and several medical professionals involved in the birth. Shortly after the lawsuit was filed, the defendants moved to dismiss, arguing that the plaintiff failed to comply with pre-suit notice and investigation requirements under Fla. Stat. Section 766.205(2). The plaintiff opposed the motion, but the trial court dismissed the action, finding that the plaintiff failed to provide the defendants with reasonable access to information regarding her expert during the pre-suit investigation period. The plaintiff then brought the current appeal.
Chapter 766 of the Florida Statutes establishes a comprehensive statutory scheme that governs the filing and adjudication of medical malpractice actions. Among the various obligations imposed by Chapter 766 is the requirement that “a potential [medical negligence] plaintiff . . . perform an investigation of the merits of the claim and prepare a notice of intent to litigate before filing suit,” Baptist Med. Ctr. of Beaches, Inc. v. Rhodin, 40 So. 3d 112, 114 (Fla. 1st DCA 2010), and a plaintiff’s failure to provide reasonable access to information during this investigative period is “grounds for dismissal of any applicable claim or defense ultimately asserted,” Fla. Stat. § 766.205(2). Although the dismissal of a complaint for a failure to comply with the Chapter 766 requirements is an extraordinary remedy, see, e.g., DeCristo v. Columbia Hosp. Palm Beaches, Ltd., 896 So. 2d 909, 911 (Fla. 4th DCA 2005) (explaining that dismissal for failure to comply with Chapter 766 “is an extraordinary sanction justified only in extreme situations”), the First District Court of Appeal nevertheless held that dismissal was warranted in this case.
Indeed, even though the plaintiff provided notice to the defendants of her intent to file suit, the First District noted that the plaintiff continually failed to provide information regarding her expert’s qualifications during the pre-suit investigation period and that despite facing sanctions for this obstructionism, the plaintiff failed to respond to the defendants’ discovery motions or comply with the trial court’s limited discovery order. The First District found that the plaintiff’s failure to provide information regarding her expert’s qualifications undermined the defendants’ ability to ascertain the legitimacy of the conduct alleged in the complaint and to determine whether the plaintiff had sufficiently investigated the claim, per her obligations under Chapter 766. See, e.g., Columbia/JFK Med. Ctr. Ltd. P’ship v. Brown, 805 So. 2d 28, 29 (Fla. 4th DCA 2001) (noting that “the purpose of . . . notice and . . . [the] expert’s affidavit . . . is . . . to demonstrate that the claim is legitimate”); Wolfsen v. Applegate, 619 So. 2d 1050, 1054-55 (Fla. 1st DCA 1993) (explaining that the purpose of review of a corroborating affidavit is “to ensure that a claim or denial has been preceded by a ‘reasonable investigation,’ and that it ‘rests on a reasonable basis’”). Accordingly, the Court of Appeal affirmed the trial court’s dismissal of the action.
The court’s decision, however, was not unanimous. In dissent, Judge Swanson of the First District noted that the plaintiff’s medical expert affidavit provided, on its face, the expert’s qualifications and the basis for the expert’s opinion. Given the facial sufficiency of the affidavit, Judge Swanson found that it was beyond the trial court’s authority to question the credibility of the expert’s assertions. Likewise, Judge Swanson questioned the propriety of the discovery request. In light of the affidavit’s facial sufficiency, Judge Swanson reasoned that any discovery regarding the expert’s qualifications should have been allowed. Indeed, it is the plaintiff who is obligated under Chapter 766 to investigate the claim, and the defendants need not be provided so much information as to independently investigate the claim but instead only sufficient information to be assured that the plaintiff has undertaken an investigation. Accordingly, Judge Swanson concluded that the trial court’s dismissal of the complaint was in error.
Even though courts are supposed to liberally construe the pre-suit investigation rules under Chapter 766 in order to avoid the undue forfeiture of claims, Morris and many other decisions demonstrate that it is not uncommon for these rules to be strictly applied. Indeed, beyond these special notice and investigation requirements, the adjudication of medical negligence cases comes with a variety of unique considerations. Accordingly, if you’ve been harmed as result of possible medical negligence, you should consider finding counsel experienced with the idiosyncrasies of medical negligence litigation. The South Florida medical malpractice attorneys at Frankl & Kominsky are well versed in Florida medical negligence law, and they are prepared to assess the viability of a potential claim and represent people with meritorious cases. If you believe that you have a potential medical negligence claim that you would like to discuss, feel free to contact us for a free case consultation.