GEORGE A. MORRIS, III, M.D., P.A., AND GEORGE A. MORRIS, III, M.D., APPELLANTS,
v.
KATHLEEN ERGOS AND JOHN ERGOS, HER HUSBAND, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In this medical malpractice case, the court reversed an order striking the defendant physician's defenses for failure to timely respond to pre-suit discovery questions. The court held that while the delay was neglectful, striking the defenses was an unnecessarily harsh remedy not supported by the circumstances and applicable law.
Striking defenses is not a mandatory consequence of pre-suit discovery delays and is an inappropriately harsh remedy absent extreme circumstances demonstrating flagrant or aggravated disobedience. The trial court abused its discretion in striking the physician's defenses where the plaintiff suffered no actual prejudice from the delay.
[1] A trial court's order denying a motion to strike pleadings in a medical malpractice case may be reviewed by certiorari when the basis for the ruling is not apparent.
[2] Striking pleadings or dismissing a case for failure to comply with presuit medical malpractice discovery procedures should be reserved for contumacious behavior.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“failure to 'make discoverable information available without formal discovery' is 'grounds for dismissal of claims or defenses ultimately asserted'”
The statutory provision that the trial court relied upon to justify striking the defendant's defenses
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe defendant physician failed to respond timely to pre-suit discovery questions under Florida's pre-suit discovery statute (§ 768.57). The physician …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Settlement Negotiations cases and more on FLexlaw
LEHAN, Judge.
In this medical malpractice case defendant physician appeals from an order striking his defenses for failure to respond timely to presuit discovery questions pursuant to section 768.57(6), Florida Statutes (1987). That section provides that failure to “make discoverable information available without formal discovery” is “grounds for dismissal of claims or defenses ultimately asserted.” We reverse.
While the physician’s failure to respond to the discovery questions until after suit was filed was clearly neglectful and it is questionable whether under the circumstances of this case the neglect was excusable, we conclude that the striking of his defenses was too harsh a remedy. Such a remedy was not mandatory. See Pinellas Emergency Mental Health Services, Inc. v. Richardson, 532 So. 2d 60 (Fla. 2d DCA 1988). It does not appear that plaintiff was prejudiced by the delay. The only prejudice argued by plaintiff is that the delay prevented meaningful settlement negotiations. However, the purpose of pre-suit discovery in this kind of case appears to be to give the defendant’s insurer the opportunity to pursue settlement. See section 768.57(3)(a); Castro v. Davis, 527 So. 2d 250, 251 (Fla. 2d DCA 1988). Also, inasmuch as suit was filed almost five months after the expiration of the ninety day period for responding to plaintiff’s notice of intent to sue, it does not appear that time was of the essence to plaintiffs. There is no question raised as to the adequacy of the answers when they were filed, which appears to have been shortly after the physician was served with the complaint.
As the Third District Court of Appeal pointed out in Summit Chase Condominium Ass’n, Inc. v. Protean Investors, Inc., 421 So. 2d 562, 564 (Fla. 3d DCA 1982), even when a party’s conduct in response to discovery requests is “laggard and slothful,” dismissal of a suit is not necessarily warranted. Rather, dismissal is justified “only in extreme situations for flagrant or aggravated cases of disobedience.” Id. See also Beauchamp v. Collins, 500 So. 2d 294 (Fla. 3d DCA 1986). The result should be no different in a case like this involving the striking of defenses.
Reversed and remanded for proceedings consistent herewith.
RYDER, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Kukral v. George D. Mekras, M.D., 679 So. 2d 278 (Fla. 1996)…that sections 766.201 through 766.212 “were not intended to require presuit litigation of all the issues in medical negligence claims nor to deny parties access to the court on the basis of technicalities”); George A Morris III, M.D., P.A. v. Ergos, 532 So. 2d 1360 (Fla. 2d DCA 1988) (striking a defendant doctor’s defenses for failure to timely respond to presuit discovery requests held too harsh a remedy in absence of prejudice to plaintiff). Under the trial court’s strict application of the statute here, a…
-
Carr v. Reese, 788 So. 2d 1067 (Fla. 2d DCA 2001)…e to confusion or inability. Garden-Aire, 433 So. 2d at 678 (noting that dismissal or default is rarely appropriate when the record does not reflect a willful refusal to comply with the court’s order). See also George A. Morris, M.D., P.A. v. Ergos, 532 So. 2d 1360, 1361 (Fla. 2d DCA 1988) (holding that dismissal is not necessarily warranted even when a party’s conduct in response to discovery requests is “laggard and slothful”). Therefore, the imposition of sanctions after the party has complied, or at least…
-
Melanson v. Bansidas M. Agravat, M.D., 675 So. 2d 1032 (Fla. 1st DCA 1996)…law. See Dressler v. Boca Raton Community Hospital, 566 So. 2d 571 (Fla. 4th DCA 1990), and Bartley v. Ross, 559 So. 2d 701 (Fla. 4th DCA 1990). Wainscott v. Rindley, 610 So. 2d 649 (Fla. 3d DCA 1992), and George A. Morris, III, M.D., P.A. v. Ergos, 532 So. 2d 1360 (Fla. 2d DCA 1988), are distinguishable.1 Appellant’s contention that the failure to comply with the presuit discovery request can be cured by giving a second notice of intent and reinitiating the entire process makes this case unique. In rejecting…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Summit Chase Condo. Ass'n, Inc. v. Protean Invs., Inc., 421 So. 2d 562 (Fla. 3d DCA 1982)
- Beauchamp v. Collins, 500 So. 2d 294 (Fla. 3d DCA 1986)
- Castro v. Albert J. Davis, M.D., 527 So. 2d 250 (Fla. 2d DCA 1988)
- Pinellas Emergency Mental Health Servs., Inc. v. Richardson, 532 So. 2d 60 (Fla. 2d DCA 1988)