SHANDS TEACHING HOSPITAL AND CLINICS, INC., A FLORIDA NOT-FOR-PROFIT CORPORATION, AND THE BOARD OF REGENTS OF THE STATE UNIVERSITY SYSTEM OF FLORIDA, PETITIONERS,
v.
MYRNA BARBER AND NATHANIEL BARBER, HUSBAND AND WIFE, RESPONDENTS
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Shands Teaching Hospital sought a writ of certiorari to overturn a trial court's denial of its motion to dismiss a medical malpractice action for alleged failure to comply with Florida's statutory prefiling notice requirements. The First District Court of Appeal denied the petition, holding that the plaintiff's notice of intent to sue and corroborating affidavit adequately identified the underlying incident and satisfied statutory requirements.
The court held that the trial court did not depart from the essential requirements of the law in denying the motion to dismiss, as the plaintiff's notice of intent and corroborating affidavit sufficiently identified the underlying incident and satisfied the statutory purpose. Certiorari review was denied because petitioners failed to demonstrate that the order departed from the essential requirements of the law, leaving no adequate remedy on appeal.
[1] Certiorari is an extraordinary remedy granted only when a court acts without or in excess of its jurisdiction, or an order departs from the essential requirements of law…
[2] Statutes imposing pre-suit notice requirements in medical malpractice actions must be construed to impose only a reasonable and limited duty on plaintiffs before allowing…
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Join FLexlaw to unlock all legal intelligence“The provisions of sections 766.201-.212, Florida Statutes, are not to be allowed to impinge upon plaintiffs' right of access to the courts and must be construed as imposing upon plaintiffs only a reasonable and limited duty before allowing them to file a suit.”
Establishes the fundamental principle that prefiling notice requirements must be interpreted narrowly to preserve access to courts and impose only reasonable obligations on plaintiffs.
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Join FLexlaw to unlock all legal intelligenceRespondent Myrna Barber filed a medical malpractice action against Shands Teaching Hospital and Clinics arising from the perforation of her esophagus …
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MICKLE, Judge.
Petitioners, defendants in a pending medical malpractice action, seek a writ of certiorari to overturn a nonfinal order denying their motion to dismiss for failure to comply with the prefiling notice requirements of sections 766.106 and 766.203, Florida Statutes. We deny the petition.
The extraordinary remedy of certiorari will be granted only in those situations where the court acts without or in excess of its jurisdiction, or the order departs from the essential requirements of the law thus causing material injury throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal. Anderson By and Through Anderson v. Lore, 618 So. 2d 369 (Fla. 1st DCA 1993); Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987).1
The provisions of sections 766.201-.212, Florida Statutes, are not to be allowed to impinge upon plaintiffs’ right of access to the courts and must be construed as imposing upon plaintiffs only a reasonable and limited duty before allowing them to file a suit. See Wolfsen v. Applegate, 619 So. 2d 1050 (Fla. 1st DCA 1993); Patry v. Capps, 633 So. 2d 9 (Fla.1994).
See also Tracey v. Barrett, 550 So. 2d 558 (Fla. 2d DCA 1989) (presuit notice statute does not require any particular form for the notice or any “magic words”; any manner of written notice which describes the occurrence of the underlying claim should suffice).
The purpose of a notice of intent to sue is to give the defendant notice of the incident in order to allow investigation of the matter and promote presuit settlement of the claim; the expert corroborative opinion is designed to prevent the filing of baseless litigation. Stebilla v. Mussallem, 595 So. 2d 136 (Fla. 5th DCA), rev. denied, 604 So. 2d 487 (Fla.1992).
In the instant case, respondent’s notice of intent and corroborating affidavit sufficiently identified the underlying incident giving rise to the claim of negligence, to wit, the perforation of her esophagus which occurred during her hospitalization, as well as the alleged resulting problems arising therefrom, thereby fulfilling the purpose of the statutory notice provision. Because petitioners have failed to demonstrate that the order of the trial court denying their motion to dismiss departed from the essential requirements of the law, the petition for writ of certiorari is DENIED.
ERVIN and DAVIS, JJ., concur. . Very recently, in Miami Physical Therapy Associates, Inc. v. Savage, 632 So. 2d 114 (Fla. 3d DCA 1994), our sister court held that certiorari is the proper method to test an order denying a motion to dismiss for failure to comply with presuit notice requirements of section 766.106, Florida Statutes.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Hankey v. Susan Yarian, M.D., 755 So. 2d 93 (Fla. 2000)…ote presuit settlement, and to reduce the number of malpractice actions filed in the courts. See Boyd v. Becker, 627 So. 2d 481, 484 (Fla.1993); Stone v. Rosenthal, 665 So. 2d 276 (Fla. 4th DCA 1995); Shands Teaching Hosp. & Clinics, Inc. v. Barber, 638 So. 2d 570 (Fla. 1st DCA 1994). Additionally, in the medical malpractice statutory context presented here, this Court has stated that medical malpractice statutes should be construed not only in favor of requiring parties to engage in meaningful presuit invest…
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Apostolico v. Orlando Reg'l Health Care Sys., Inc., 871 So. 2d 283 (Fla. 5th DCA 2004)…ce of the incident in order to allow investigation of the matter and promote presuit settlement of the claim. The expert corroborative opinion is intended to prevent the filing of baseless litigation. Shands Teaching Hosp. & Clinics, Inc. v. Barber, 638 So. 2d 570, 572 (Fla. 1st DCA 1994). While it is true that the presuit requirements are conditions precedent to instituting a malpractice suit, the provisions of the statute are not intended to deny access to the courts on the basis of technicalities. Archer v…
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Sova Drugs, Inc. v. Traiy Patrick Barnes, 661 So. 2d 393 (Fla. 5th DCA 1995)…ut resort to the presuit procedures, that purpose would be frustrated, and appellate courts could not properly remedy the cause on appeal. See Tunner v. Foss, 666 So. 2d 1151 (Fla. 5th DCA 1995); Shands Teaching Hospital and Clinics, Inc. v. Barber, 638 So. 2d 570 (Fla. 1st DCA 1994); NME Hospitals, Inc. v. Azzariti, 573 So. 2d 173 (Fla. 2d DCA 1991). This is apparently a case of first impression in this state. Section 766.102, Florida Statutes (1993) sets out the standards for recovery in medical negligence…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- Patry v. William L. Capps, M.D., 633 So. 2d 9 (Fla. 1994)
- Stebilla v. Anthony J. Mussallem, M.D., 595 So. 2d 136 (Fla. 5th DCA 1992)
- Miami Physical Therapy Assocs., Inc. v. Savage, 632 So. 2d 114 (Fla. 3d DCA 1994)
- Wolfsen v. Clarence W. Applegate, M.D., 619 So. 2d 1050 (Fla. 1st DCA 1993)
- Tracey v. John P. Barrett, M.D., 550 So. 2d 558 (Fla. 2d DCA 1989)
- Vernon v. State, 618 So. 2d 369 (Fla. 1st DCA 1993)
- Jeromy Anderson v. Charles E. Lore, M.D., 618 So. 2d 369 (Fla. 1st DCA 1993)