JEFFREY COHEN, M.D., ET AL., PETITIONERS,
v.
DAVID DEYOUNG, ETC., RESPONDENT
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Defendants Cohen and Internal Medicine Specialist, P.A. sought a writ of certiorari to overturn the trial court's order striking their affirmative defense that they were entitled to a statutory damages cap under Florida's medical malpractice statute. The Fifth District Court of Appeal denied the petition, holding that the order was not subject to certiorari review because direct appeal provided an adequate remedy.
The order striking the affirmative defense is not subject to certiorari review because direct appeal provides an adequate remedy. The affirmative defense is a limitation on damages rather than a condition precedent to suit, and striking it causes no irreparable harm incurable on appeal.
[1] Non-final orders striking affirmative defenses are generally reviewable on direct appeal and thus not subject to certiorari review.
[2] Certiorari review may be appropriate for the denial of a motion to dismiss based on a plaintiff's failure to provide statutory notice of intent to sue, as irreparable har…
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Join FLexlaw to unlock all legal intelligence“Non-final orders striking affirmative defenses can normally be adequately reviewed on direct appeal, and thus they are not subject to certiorari review.”
Establishes the general rule that certiorari is not the appropriate remedy for orders striking affirmative defenses.
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Join FLexlaw to unlock all legal intelligenceCohen was sued by DeYoung in a medical malpractice case. Cohen received a notice of intent to initiate litigation and requested voluntary binding arbi…
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W. SHARP, Judge.
Jeffrey Cohen and Internal Medicine Specialist, P.A., petitioners, ask this court to issue a writ of certiorari to overturn the trial court’s order striking-an affirmative defense they asserted in a medical malpractice case. Petitioners are the defendants and David DeYoung, (as personal representative of the estate of Shally Ann DeYoung, deceased) the respondent, is the plaintiff in the suit below. We deny the writ.
DeYoung sent Cohen a notice of intent to initiate litigation pursuant to the medical malpractice statute.1 At the end of the pre-suit period, Cohen requested voluntary binding arbitration to determine damages. See § 766.207, et seq. DeYoung rejected the offer to arbitrate and filed suit.
In them answer, Cohen asserted, as an affirmative defense, that they were entitled to the damages cap set forth in sections 766.207 and 766.209, Florida Statutes. De-Young asserted that Cohen did not comply with the requirements of the pre-screening-suit provisions of the statute so as to entitle them to assert the statutory cap. DeYoung filed a motion for summary judgment or motion to strike affirmative defenses. The trial court struck Cohen’s affirmative defense of entitlement to the statutory cap on damages.
Non-final orders striking affirmative defenses can normally be adequately reviewed on direct appeal, and thus they are not subject to certiorari review. Manatee County v. Estech General Chemicals Corp., 402 So. 2d 75 (Fla. 2d DCA 1981); Butter-worth v. PERC, 382 So. 2d 859 (Fla. 4th DCA 1980).
Cohen argues that cases like Pearlstein v. Malunney, 500 So. 2d 585 (Fla. 2d DCA 1986) are precedent for certiorari review in this case. In Pearlstein, the trial court denied a motion to dismiss a complaint which was based on the plaintiffs failure to provide notice of intent to sue prior to filing suit. The court in that ease said certiorari review was appropriate because otherwise the defendant would suffer irreparable harm, contrary to a benefit (notice) intended by the Legislature. If the defendant had to go to trial and the plaintiff prevailed, and the judgment were appealed, the appellate court could decide no useful purpose would be served in reversing and remanding to follow the statute. Thus no effective appellate remedy existed.
However, in this case, the affirmative defense asserted is different from the condition precedent to suit involved in Pearlstein, and other cases relied upon by Cohen in this case. The defense asserted here is primarily a limitation on damages. It is not a defense to the underlying suit or a condition which must be met prior to filing suit. No irreparable harm not curable on appeal is involved in this case. The striking of the affirmative defense can be remedied by a direct appeal, without any loss to Cohen of any benefit intended by the Legislature, pursuant to sections 766.206 and 766.209, Fla.Statutes. The statutory limitation in this case relates only to the amount of damages recoverable by DeYoung. In no way does it limit DeYoung’s right to proceed with this litigation.
Petition for Writ of Certiorari DENIED.
HARRIS, C.J., and THOMPSON, J., concur. . § 766.106(2), Fla.Stat.
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Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646 (Fla. 2d DCA 1995)…See Pearlstein v. Malunney, 500 So. 2d 585 (Fla. 2d DCA 1986). Such statutes cannot be meaningfully enforced postjudgment because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance. See Cohen v. DeYoung, 655 So. 2d 1265 (Fla. 5th DCA 1995). Similarly, the supreme court has recently authorized limited certiorari review of the statutory procedures for amending a complaint to allege punitive damages because those safeguards cannot be remedied postjudgment. The court,…
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Lynn v. Feldmeth, 849 So. 2d 481 (Fla. 2d DCA 2003)…nse because it does not, in whole or in part, bar or void the cause of action. See Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Meeks, 560 So. 2d 778, 780 (Fla.1990); FDIC v. Brodie, 602 So. 2d 1358, 1362 (Fla. 3d DCA 1992); see also Cohen v. DeYoung, 655 So. 2d 1265, 1267 (Fla. 5th DCA 1995) (distinguishing statutory cap on damages from affirmative defense to underlying suit). Feldmeth also argues that Lynn waived her right to assert the statutory cap because she entered into a pretrial stipulation by which sh…
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Fortune Ins. Co. v. Matos, 685 So. 2d 1307 (Fla. 2d DCA 1995)…n [*1309] Langston. Second, a petitioner must establish that the discovery issue is likely to evade review on plenary appeal. See Pearlstein v. Malunney, 500 So. 2d 585 (Fla. 2d DCA 1986), review denied, 511 So. 2d 299 (Fla.1987); Cohen v. DeYoung, 655 So. 2d 1265 (Fla. 5th DCA 1995). The discovery requested by the plaintiffs is irrelevant to the material issues in their complaint and will not create any evidence admissible during the trial. As a result, even if the final judgment is ultimately adverse to For…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Leslie Pearlstein, M.D. v. Malunney, 500 So. 2d 585 (Fla. 2d DCA 1986)
- Manatee Cnty. v. Estech Gen. Chems. Corp., 402 So. 2d 75 (Fla. 2d DCA 1981)
- Bishop v. State, 382 So. 2d 859 (Fla. 4th DCA 1980)
- Butterworth v. The Pub. Emps. Relations Comm'n, 382 So. 2d 859 (Fla. 4th DCA 1980)