(The information on this site applies to Florida only)

Disclaimer:  What follows are reports of some of the significant medical malpractice cases ruled on by Florida's appellate courts and supreme court for approximately the past year.  These reports include only our brief synopsis about the legal significance of these cases, and you should always obtain and read the entire case opinion to see what else is in the opinion.  You should not attempt formal legal research on our site because we do not have full case databases nor are we able to keep our reports current on a day-to-day basis.  It should be remembered that all cases are fact specific, and even a slight change in the facts could change the outcome of these cases.        

Plaintiff’s complaint may allege medical negligence theory that was not specifically alleged during pre-suit screening. Columbia / JFK Medical Center Limited Partnership v. Brown 805 So.2d 28 ( Fla. 4th DCA 2001).  Plaintiff's notice of intent and corroborating opinion from an emergency physician had alleged that the hospital was vicariously liable for the negligence of its emergency room physicians and nursing staff. When pre-suit screening ended and suit was filed, plaintiff included in the complaint a new theory alleging a gynecologist had negligently operated on the plaintiff a day earlier, and that the hospital was liable to plaintiff for negligently granting that gynecologist medical staff privileges. The Fourth District Court of Appeals re-confirmed that the primary purpose of pre-suit screening is to prevent the filing of baseless litigation, and where the pre-suit requirements were complied with as to one theory of negligence, the purpose had been satisfied and other theories may be alleged when suit is filed. The opinion cited a similar result reached in the 5th District case of Davis v. Orlando Regional Medical Center , 654 So.2d 664, (Fla. 5th DCA 1995).

Social Security retirement benefits are not a “collateral source” for purposes of pre-suit arbitration. Barlow v. North Okaloosa Medical Center , 809 So.2d 71, ( Fla. 1st DCA 2002). Plaintiff’s claim arose out of the death of her husband. After voluntary binding arbitration under Section 766.207, plaintiff appealed the arbitrators’ failure to award her damages for the decrease in monthly social security retirement benefits which resulted from the death of her husband. Prior to his death, together they received $16,000 per year, and after his death she received only $12,000 per year as a widow. The defendant argued that social security benefits are a “collateral source”, and as such they would not be recoverable in arbitration, pursuant to 766.207(7) (a). The Appellate Court noted that, unlike social security medical or disability benefits, social security retirement benefits are not included in the definition of collateral sources contained in Section 766.202(2)(a). However, the Court still affirmed the arbitration award which excluded the reduction in retirement benefits. The Court found that plaintiff was only entitled to an award of “net economic losses” under 766.207(7)(a), and she failed to show that the reduction in retirement benefits did not fairly represent the amount that would have been expended anyway simply to maintain the decedent if he were alive. In other words, the court held she could recover for the reduction in this class of benefits but she failed to show whether she really had a net economic loss.  

Failure of healthcare provider to send medical records within 10 business days of a written request waives the requirement that plaintiff provide a corroborating medical opinion during pre-suit screening. Mincey v. Moore, ___ So.2d ___, 27 FLW D353 ( Fla. 1st DCA 2-8-02 ). The court also stated that the waiver, which arises from Section 766.204(2), is automatic and plaintiff does not have to show prejudice. See also, De La Torre v. Orta, 785 So.2d 553 ( Fla. 3rd DCA 2001) and Otto v. Rodriguez, 710 So.2d 1 ( Fla. 4th DCA) review denied, 718 So.2d 170 ( Fla. 1998).

County court case against dentist properly dismissed where plaintiff failed to go through pre-suit screening process. Hord, D.D.S. M .S. P.A. v. Taibi, 801 So.2nd 1011, ( Fla. 4th DCA 2001). A patient brought a county court case against her dentist for $4,070, which was the amount she paid for her upper and lower dentures. The defendant moved to dismiss because the plaintiff had not served a notice of intent to initiate litigation. The county court refused to dismiss the action finding that pre-suit screening was not necessary because the suit was more in the nature of a claim based on contract rights. The 4th DCA reversed, holding that it is well settled law that pre-suit screening applies to dentists (See Campagnulo v. Williams, 563 So.2d 733 (Fla. 4th DCA 1990)), and it does not matter whether it is grounded in tort or contract. Section 766.201 expressly defines medical negligence as "medical malpractice, whether grounded in tort or in contract".

 A non-arbitrating defendant who suffers an adverse verdict may have a set-off for the arbitration award, but is not entitled to a cap on non-economic damages, even if its liability was based solely on vicarious liability for the arbitrating defendant. North Miami Medical Center v. Prezeau, 793 So.2d 1142 ( Fla. 3rd DCA 2001). Plaintiff brought a wrongful death case against two physicians and a hospital arising out of the death of a minor. The two physicians and the plaintiff agreed to voluntary binding arbitration under Section 766.207, which limited the doctors' liability for non-economic damages to a maximum of $250,000. The hospital never offered to arbitrate with the claimant and the claimant never offered to arbitrate with the hospital. Following trial, the jury found the hospital vicariously liable for one of the doctors and that the doctor was negligent, and awarded non-economic damages of $4.5 million against the hospital for past and future pain and suffering. After the verdict, the arbitration panel awarded the decedent $250,000 in non-economic damages against the doctor. At the time of entry of judgment the hospital moved the trial court for a set-off of the arbitration award and also to cap the hospital's vicarious liability for non-economic damages at $250,000, because it's liability was solely based on vicarious liability for a physician who had agreed with the claimant for a damage cap of $250,000. The trial court setoff the $250,000 but would not impose any cap on damages, and the hospital appealed. The 3rd DCA affirmed the trial court's ruling holding essentially that if you don’t agree to arbitrate you don’t get the benefit of a cap.   

Fourth District upholds striking of answer and entry of default on liability for defendant’s failure to adequately conduct a pre-suit investigation. Grau, M .D. v. Wells, 795 So.2d 988 ( Fla. 4th DCA 2001). After a medical malpractice law suit was filed, the plaintiff moved to strike the defendant's expert affidavit as a sham, and to strike the responsive pleadings for failure of the defendant to conduct a reasonable pre-suit investigation. Following an evidentiary hearing the trial court struck the defendant's responsive pleadings and expert affidavit and entered a default against the defendant on the issue of liability. It found that the defendant did not conduct a reasonable investigation before denying the claim and that the physician who signed the affidavit was biased as a professional associate of the defendant physician. The court also found that the defendant’s expert opinion letter was completed by the expert over 45 days before the rejection of the claim was served, and prior to any pre-suit discovery requests propounded by the defendants. These facts were found to constitute prima facie evidence of a lack of "reasonable basis" for the denial of the claim and shifted the burden to the defendant physician to show compliance with the reasonable investigation requirement. The trial court concluded that no reasonable investigation was made. The 4th DCA affirmed the trial court's order under the authority of 766.106(3)(a), which states "unreasonable failure of any party to comply with this section justifies dismissal of claims or defenses". The court had to distinguish its own earlier decision of Karr v. Sellers, 668, So.2d 629 ( Fla. 4th DCA), review denied, 679 So.2d 774 ( Fla. 1996). In the Karr case the court had concluded Section 766.206(3) did not authorize the striking of the defendant's pleadings or the entry of a default where the defendant's response denying the claim did not attach an expert's affidavit. The Karr decision had reasoned that the section in question only provided for the striking of the defendant's "response", and then interpreted the word "response" to refer to the written denial of the claim, not the defendant's pleadings in the law suit. However, now it Grau,  the court said it was called on to interpret a different part of the statute and it specifically found that Section 766.106(3)(a) did authorize the dismissal of claims or defenses, as has previously been found by the 3rd DCA in Estevez v. Montero, 662 So.2d 1268 (Fla. 3rd DCA 1995). 

An action under Section 395.1041 (Florida ’s anti-dumping statute) was dismissed for failure to comply with pre-suit screening requirements. Porter, Brown, Chitty & Pirkle, M .D., P.A. v. Pearson, 793 So.2d 1012 ( Fla. 3rd DCA 2001). Plaintiff brought suit under Florida Statute 395.1041 and defendant moved to dismiss for failure of the plaintiff to undertake the pre-suit screening requirements of Chapter 766. The Third District stated that ordinarily a cause of action under 395.1041 would not need to go through pre-suit screening because the plaintiff would only need to establish that he was "dumped" and that damages resulted. However, since in this case the complaint specifically alleged that the defendants failed to treat the plaintiff's medical condition "appropriately", the plaintiff raised the issue of the "quality" of the health care provided, as distinguished from the refusal to provide any medical treatment at all by "dumping". The Court found that even though it was filed as a Section 395.1041 case, it was actually a "medical malpractice" case masquerading as an "anti-dumping" case. For that reason the plaintiff was required to take the case through pre-suit screening and the trial court should have granted the defendant’s motion to dismiss. 

Notice of intent to initiate litigation served on professional association was sufficient for filing suit against physician who worked for the professional association but who was not named in the notice of intent or served with one. Moss v. Stadlan, M .D., 789 So.2d 1069 ( Fla. 4th DCA 2001). Plaintiff brought a malpractice case against two cardiac surgeons and their professional association employer. The plaintiff served a notice of intent only on one of the surgeons and on the employer. Yet when he filed his lawsuit, plaintiff included the second surgeon as a defendant along with the first surgeon and the employer. The trial court dismissed the case as to the second surgeon because of lack of pre-suit notice. The 4th DCA reversed, stating that Rule 1.650(b) of the pre-suit screening rules provides that notice of intent to initiate litigation sent by certified mail to and received by any prospective defendant shall operate as notice to the person and any other prospective defendant who bears a legal relationship to the prospective defendant receiving notice. The Complaint alleged that the second surgeon was an employee or agent of the professional association which did receive a notice. Plaintiff claimed that the surgeon therefore had a legal relationship with the professional association defendant and, as contemplated by the rule, notices to the professional association employer constituted notice to the surgeon. The 4th DCA agreed, citing the case of Kukral v. Mekras, 679 So.2d 278 ( Fla. 1996). In that case the reverse situation was present, because the plaintiff had given notice to the physician, but did not give notice to the corporate employer. In Kukral the Florida Supreme Court had held that the employer was in a legal relationship with the physician and that notice to the physician operated as notice to the employer. Relying on Kukral, the 4th DCA reasoned that if notice to the employee tags the employer, then notice to the employer tags the employee based on that same legal relationship.

When trial court holds an evidentiary hearing on the adequacy of plaintiff’s pre-suit investigation and finds the investigation adequate, certiorari is not available to ask the Appellate Court to re-weigh the evidence. St. Mary’s Hospital v. Bell, 785 So.2d 1261, ( Fla. 4th DCA 2001). After suit was filed the hospital filed a Motion to Dismiss for failure of the plaintiff to comply with pre-suit requirements of Chapter 766, Florida Statutes. The notice of intent had alleged a failure of the hospital to provide appropriate medical care at the hospital’s emergency room. Accompanying the notice was an affidavit of a physician citing the mother’s allegation that she took her child to the emergency room four or five days prior to his death. The hospital’s motion to dismiss was based on the plaintiff’s failure to produce a copy of any hospital record supporting plaintiff’s assertion that the decedent had actually been taken to the hospital on that day. The hospital contended that a search of its own records uncovered nothing indicating that the decedent had ever even been there. The trial court held an evidentiary hearing at which time the hospital produced witnesses to state they had no records of the visit, and the hospital argued that this demonstrated that the plaintiff’s counsel did not conduct an adequate investigation. The trial court denied the hospital’s motion to dismiss finding that there was merely a factual dispute on whether patient went to the hospital or not. The 4th DCA, as appellate courts often do, discussed the merits of the underlying issues, during which it seemed to side with the trial court’s conclusions. Then the 4th DCA ruled that it would not rule, stating that while certiorari may be available for orders denying motions to dismiss for total failure to comply with the pre-suit requirements of Chapter 766, certiorari is not available to have the appellate courts reweigh the evidence presented during an evidentiary hearing on the issue below.

Action against cruise ship was governed by general maritime law and therefore plaintiff was not required to comply with pre-suit screening requirements. Royal Caribbean Cruises LTD v. Sinclair, 808 So.2d 233, ( Fla. 3rd DCA 2002). This opinion unfortunately contains no description of what the allegations were so it is hard to know whether it will have any precedential value.

A common law cause of action against H M O for negligence in determining what is medically necessary might not need to go to pre-suit screening and be subject to the 2-year medical malpractice statute of limitations. Lane v. Health Options, Inc., 796 So.2d 1234 ( Fla. 4th DCA 2001). Plaintiff sued H M O in state court under multiple legal theories arising out of its refusal to authorize a muscle flap procedure as “medically necessary”. Plaintiff ended up with a skin flap instead, which broke down causing bone infection and other complications. Plaintiff’s case was removed to federal district court on the basis of ERISA pre-emption, and then remanded back to state court with one count surviving based on a theory of “negligence”. The H M O then moved to dismiss arguing it is a healthcare provider “rendering medical care and services” and defendant failed to send a notice of intent. It further argued that since the 2-year statute of limitations for medical malpractice had run, the case should be dismissed with prejudice. The trial agreed and dismissed, but the 4th DCA reversed, stating there are insufficient allegations in the complaint from which the trial court could determine as a matter of law that the HMO was rendering “medical care or services.” Plaintiff did not ask for leave to amend in the trial court but requested it from the appellate court and it was granted.

5th District holds that 90 day tolling of statute of limitations during pre-suit screening will toll the statute of limitations for all potential defendants in the case regardless of whether they are served or named in the initial notice of intent. Burbank v. Kero, 813 So2d 292 ( Fla. 5th DCA 2002). Prior to pre-suit screening plaintiff’s counsel requested but was not given complete copies of medical records. Pre-suit screening was timely begun against three defendants. During pre-suit screening plaintiff received more records and learned for the first time that another doctor was also involved. Toward the end of the 90 day pre-suit period, plaintiff served a notice of intent on this newly discovered doctor. The two year statute of limitations, including a 90 day automatic extension previously obtained under 766.104, would have expired before serving the notice of intent on the new doctor, unless the 90 day pre-suit screening tolling period resulting from serving the first notice of intent on the other defendants was found to apply to potential defendants not named in the first notice. The 5th District held that the plain language in Section 766.106(4) says that the 90 day tolling period that arises from serving a notice of intent applies to “all potential defendants”. Since the notice sent to the new doctor defendant was sent before the expiration of that time, it was found to be timely. In her concurring opinion Judge Griffin also pointed out that the failure to supply requested medical records would create issues bad faith and estoppel which also would preclude summary judgment for defendant.

Plaintiff was allowed to take a pre-suit screening "mulligan" as long as the statute of limitations had not expired. Popps v. Foltz, M .D., 806 So.2d 583 ( Fla. 4th DCA 2002). The plaintiff sent his first notice of intent to initiate a malpractice action without a corroborating expert opinion, and then failed to respond to defendant's multiple pre-suit discovery requests. Four months after receiving the first notice of intent, defendant denied the claim. Several months later, and before the statute of limitations had run, plaintiff sent a second notice of intent and this time wisely sent along an affidavit of a neurosurgeon. Plaintiff also made himself available for a requested unsworn statement. After the unsworn statement, Defendant sent a request for additional discovery but then rejected the claim a few days later. The trial court dismissed the action, with prejudice, because plaintiff failed to comply with pre-suit procedures. The Fourth District reversed, finding it was an abuse of discretion to impose the ultimate sanction of dismissal since plaintiff fully complied after he sent his second notice of intent up to the point that the defendants denied the claim.

Suit against H M O for breach of contract, fraud in the inducement, intentional infliction of emotional distress, breach of implied covenant of good faith and fair dealing, and loss of consortium, does not state a medical malpractice claim requiring the plaintiff to serve a notice of intent or engage in pre-suit screening. Solomon v. Well Care HMO, 27 FLW D1722 ( Fla. 4th DCA 7-24-02 ). Plaintiff had an individual health insurance contract from Well Care. Her physician had recommended a total abdominal hysterectomy that at first had been approved for payment, but the approval was revoked shortly before surgery on the basis that her medical problem was a pre-existing condition. The trial court dismissed the complaint after finding that the cause of action was arising out of the provision of medical care and that the plaintiff had failed to serve a notice of intent or go through pre-suit screening. The Fourth District Court reversed holding that the cause of action was really based on the H M O’s determination that the condition was pre-existing for purposes of coverage, and not the actual negligent provision of medical services. Additionally, the court noted that many of plaintiff's claims arose out of alleged misrepresentations prior to when the parties actually entered into the contract. The appellate court reversed but also noted that it was expressing no opinion on whether any of the counts actually stated a cause of action. Comment: You sue a managed care company for medical negligence and it claims it is not a healthcare provider. You sue a managed care company for breach of contract and it claims it is a healthcare provider. There ought to be a law.