THOMAS HEBEBRAND AND HIS WIFE, OLIVE HEBEBRAND, PETITIONERS,
v.
VICTOR ARRIEN, M.D., VICTOR ARRIEN, P.A., DANIEL ROTHMAN, M.D., DANIEL ROTHMAN, M.D., P.A. AND CAREFLORIDA, INC., ET AL., JUDY KERSTETTER, L.P.N., NIDIA L. CHEDIAK, M.D., MEDICAL ASSOCIATION SYSTEMS, INC., COASTAL PHYSICIANS GROUP, INC., LINDA R. HOLLY, P.T. AND PHYSICAL THERAPY REHABILITATION CENTER OF CORAL SPRINGS, INC., RESPONDENTS
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Petitioners sought a writ of certiorari to compel the trial court to sanction defendants and strike their defenses for failing to conduct a good faith investigation as required by Florida's pre-suit medical malpractice statute. The appellate court dismissed the petition for lack of jurisdiction, holding that the statute authorizes only the striking of a defendant's 'response,' not their pleadings, and that petitioners have an adequate remedy by appeal from final judgment.
The court held that section 766.206 authorizes only the striking of a defendant's 'response,' not the striking of defendant's pleadings or defenses. Accordingly, if the trial court erred, petitioners have an adequate remedy by appeal from final judgment, making certiorari review unavailable.
[1] A statute providing for the striking of a defendant's "response" to a claim does not authorize the striking of a defendant's pleadings.
[2] A party seeking sanctions for a defendant's failure to conduct a good faith investigation under chapter 766, Florida Statutes, may have an adequate remedy by appeal from…
Previewing 2 of 3 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“If the court finds that the response mailed by a defendant rejecting the claim is not in compliance with the reasonable investigation requirements, the court shall strike [the defendant's response], and the person who mailed such response, whether the defendant, the defendant's insurer, or the defendant's attorney, shall be personally liable for all attorney's fees and costs incurred during the investigation and evaluation of the claim”
Establishes the statutory language limiting relief to striking the 'response' rather than pleadings generally
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Join FLexlaw to unlock all legal intelligencePetitioners filed a medical malpractice lawsuit against several defendants, including a physical therapist and her employer. Defendants failed to resp…
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KLEIN, Judge.
Petitioners, who are seeking a writ of certiorari, are the plaintiffs in a lawsuit alleging medical malpractice against the respondents, Linda R. Holly, a physical therapist, and Physical Therapy Rehabilitation Center of Coral Springs, Inc., as well as other defendants. After these defendants failed to respond to plaintiffs’ notice of claim pursuant to chapter 766, Florida Statutes (1995), plaintiffs moved the trial court to sanction defendants and strike their defenses for failure to conduct a. good faith investigation pursuant to sections 766.203 and 766.206, Florida Statutes. The trial court refused to do so, and plaintiffs seek certiorari review.
Section 766.206(3), under which plaintiffs were seeking sanctions, provides:
If the court finds that the response mailed by a defendant rejecting the claim is not in compliance with the reasonable investigation requirements, the court shall strike the defendant’s response, and the person who mailed such response, whether the defendant, the defendant’s insurer, or the defendant’s attorney, shall be personally liable for all attorney’s fees and costs incurred during the investigation and evaluation of the claim, including the reasonable attorney’s fees and costs of the claimant.
This court recently concluded that this statute does not authorize the striking of defendant’s pleadings, because it only provides for the striking of defendant’s “response.” Karr v. Sellers, 668 So. 2d 629 (Fla. 4th DCA 1996). If the trial court erred in not striking defendants’ response, plaintiffs have an adequate remedy by appeal from final judgment. We therefore lack jurisdiction, Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987), and dismiss the petition.
STONE and FARMER, JJ., concur.
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Citator
Cited By
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Daddono v. Knight (M.D. Fla. 2022)…96) (citing Williams); 4 The Hoeltzell court does not use the term “answer,” and the term “response” in section 766.203(3) has been held to mean only the presuit response to the notice of intent to sue, and not the answer. See Hebebrand v. Arrien, 673 So. 2d 545, 546 (1996) (citing Karr v. Sellers, 668 So. 2d 629 (Fla. 4th DCA 1996)). see also Dial 4 Care, Inc. v. Brinson, 319 So. 3d 111, 114 (Fla. 3d DCA 2021) (citing Kukral). No authorities other than Pagan and Hoeltzell have been presented or found tha…
Authorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- George J. Karr, D.D.S. v. Sellers, 668 So. 2d 629 (Fla. 4th DCA 1996)