ANTONIA MARIE MCDOWELL WATKINS, PETITIONER,
v.
VLADIMIR ROSENTHAL, M.D., VLADIMIR ROSENTHAL, M.D., P.A., RESPONDENTS
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A Florida appellate court quashed an order allowing the defendant-doctor to depose the plaintiff's corroborating medical expert in a medical malpractice case. The court held that the expert's statements and work product generated during the presuit investigation process are protected from discovery under Florida law, and that the trial court can evaluate whether the plaintiff met reasonable investigation requirements without deposing the expert.
The court held that the trial court erred in allowing the deposition. The expert's statements and work product generated solely by the presuit investigation process are protected from discovery under section 766.205(4), Florida Statutes, with no exceptions. The trial court can determine compliance with reasonable investigation requirements by examining the notice of intent and the corroborating medical opinion itself, without deposing the expert.
[1] Statements, discussions, written documents, reports, or other work product generated solely by the presuit investigation process in medical negligence litigation are not…
[2] A corroborating medical expert's opinion attached to a notice of intent to initiate medical negligence litigation is considered work product generated solely by the presu…
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Join FLexlaw to unlock all legal intelligence“No statement, discussion, written document, report, or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party.”
Establishes the statutory privilege protecting presuit investigation materials from discovery
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Join FLexlaw to unlock all legal intelligencePetitioner Watkins initiated medical negligence litigation against Dr. Rosenthal and sought corroboration from a medical expert as part of the presuit…
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PER CURIAM.
Petitioner seeks a writ of certiorari to quash an order granting respondents leave to depose petitioner’s corroborating medical expert. We grant the petition and quash the order. Petitioner’s corroborating medical expert authored the opinion attached to petitioner’s notice of intent to initiate medical negligence litigation. Corroboration of reasonable grounds to initiate medical negligence litigation by a medical expert is a component of the presuit investigation process. § 766.203, Fla.Stat. (1993). Section 766.205(4), Florida Statutes (1993), provides: “No statement, discussion, written document, report, or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party.”
Respondents seek to depose the medical expert in preparation for their action under section 766.206(1), in which they seek a judicial determination of whether petitioner’s claim rests on a reasonable basis. Such a deposition would, of necessity, include statements, discussions and references to work product generated solely by the presuit investigation process. Therefore, the deposition would violate section 766.205(4), which provides no exception to the discovery privilege. See Grimshaw v. Schwegel, 572 So. 2d 12, 13 (Fla. 2d DCA 1990). As noted by the court in Grimshaw, 572 So. 2d at 13:
[T]he legislature considered that the exchange of information during the presuit screening process would be greater if confidentiality were assured. Obviously, the legislature determined that this policy outweighed the need for civil litigants to obtain certain discovery generated by the presuit screening process.
Respondents contend that quashing this order would frustrate the trial court in its efforts under section 766.206(1) to determine whether petitioner complied with the reasonable investigation requirements. We disagree.
In making its determination pursuant to section 766.206(1), the trial court may consider any relevant evidence, including inferences to be drawn from the text of the notice of intent to sue and its corroborating medical expert opinion. Duffy v. Brooker, 614 So. 2d 539, 545 (Fla. 1st DCA), review denied, 624 So. 2d 267 (Fla.1993). The corroboration statement must outline the factual basis for the opinion. Id. at 546. Taken together, “the notice of intent to initiate litigation and the corroborating medical expert opinion ... must sufficiently indicate the manner in which the defendant doctor allegedly deviated from the standard of care, and must provide adequate information for the defendant[] to evaluate the merits of the claim.” Id. at 545.
Accordingly, we hold that the trial court departed from the essential requirements of the law by ordering the deposition of petitioner’s corroborating medical expert. We therefore grant the petition and quash the order. Certiorari granted; order quashed.
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Martin Mem'l Med. Ctr., Inc. v. Herber, 984 So. 2d 661 (Fla. 4th DCA 2008)…a reasonable basis for the claim. The first issue before us is whether the failure of the trial court to determine whether plaintiffs claim rests on a reasonable basis is a departure from the essential requirements of law. See Watkins v. Rosenthal, 637 So. 2d 993, 994 (Fla. 3d DCA 1994) (citing Duffy v. Brooker, 614 So. 2d 539 (Fla. 1st DCA 1993), disapproved on other grounds). In Duffy, the First District concluded that “[w]hen one of the parties files a motion under section 766.206, the trial court must de…
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Maldonado v. Emsa Ltd. P'ship, 645 So. 2d 86 (Fla. 3d DCA 1994)…ert opinion ... must sufficiently indicate the manner in which the defendant doctor allegedly deviated from the standard of care, and must provide adequate information for the defendant!] to evaluate the merits of the claim.’ ” Watkins v. Rosenthal, 637 So. 2d 993, 994 (Fla. 3d DCA 1994) (quoting D%iffy, 614 So. 2d at 545) (e.s.). The absence of any additional facts is not dispositive when as here, the provided information satisfied the statutory purpose. The sufficiency of the information is demonstrated by…
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Univ. of Miami v. Shanay Hall Jones (Fla. 3d DCA 2022)…taken together, must sufficiently indicate the manner in which the defendant . . . allegedly deviated from the standard of care, and must provide adequate information for the defendant[] to evaluate the merits of the claim.”); Watkins v. Rosenthal, 637 So. 2d 993, 994 (Fla. 3d DCA 1994) (same). 5 While we do not address the merits of this waiver issue, we note that the “failure to provide full and complete medical records under section 766.204, Florida Statutes . . . [does] not constitute a waiver of the req…
Authorities Cited
- Patrick M. Duffy, M.D. v. Brooker, 614 So. 2d 539 (Fla. 1st DCA 1993)
- James D. Grimshaw, D.O. v. Schwegel, 572 So. 2d 12 (Fla. 2d DCA 1990)