SHELBY AND THOMAS WATSON, APPELLANTS,
v.
NATHAN BECKMAN, D.D.S., APPELLEE
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The failure to provide a verified corroborating expert opinion with the notice of intent to initiate litigation does not justify dismissal if the defendant failed to comply with the plaintiff's request for dental records.
[1] Failure to provide a verified corroborating expert opinion with a notice of intent to initiate litigation does not justify dismissal if the defendant failed to comply wit…
[2] A defendant waives the requirement of a verified corroborating expert opinion by failing to comply with a request for the plaintiff's dental records.
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Join FLexlaw to unlock all legal intelligenceMs. Watson filed a dental malpractice action against Dr. Beckman. She failed to provide a verified corroborating expert opinion with her notice of int…
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SHEVIN, Judge.
Shelby and Thomas Watson appeal an order dismissing a dental malpractice action filed against Dr. Nathan Beckman, Ms. Watson’s dentist, premised on Ms. Watson’s failure to comply with the pre-suit screening statutes. Ch. 766, Fla. Stat. (1993). We reverse.
Contrary to Dr. Beckman’s contention, Ms. Watson’s failure to provide a verified corroborating expert opinion with the notice of intent to initiate litigation1 does not justify dismissal. § 766.203(2), Fla. Stat. (1993). That requirement was waived by Dr. Beckman’s failure to comply with Ms. Watson’s request for copies of her dental records. § 766.204(2), Fla. Stat. (1993); Escobar v. Olortegui, 662 So. 2d 1361 (Fla. 4th DCA 1995).
Furthermore, Ms. Watson provided Dr. Beckman with the requisite opinion within the statute of limitations period.
The record reveals that Ms. Watson conducted an investigation and obtained a verified corroborating expert opinion as to Dr. Beckman’s treatment before filing her complaint. The expert rendered his opinion based on Ms. Watson’s records from other dentists who had treated her before and after treatment by Dr. Beckman. It also appears that the expert conducted his own examination. That opinion was provided to Dr. Beckman before the expiration of the statute of limitations period. Ms. Watson’s compliance within the statutory period renders dismissal improper. See Kukral v. Mekras, 679 So. 2d 278 (Fla.1996).
In permitting such compliance within the limitations period, the Kukral court stated that “the medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses.” Kukral, 679 So. 2d at 284. This decision is consistent with that principle.
Accordingly, we reverse the order and remand the cause for further proceedings.
Reversed and remanded.
. The notice was sent to Dr. Beckman by certified mail with a return receipt requested. Dr. Beckman did not sign the receipt.
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Cent. Fla. Reg'l Hosp. v. Hill, 721 So. 2d 404 (Fla. 5th DCA 1998)…s release. Such a requirement is unreasonable. Furthermore, the absence of evidence of an injury reflected in medical records would not necessarily preclude a plaintiff from obtaining a corroborating expert opinion. See generally, Watson v. Beckman, 695 So. 2d 436 (Fla. 3d DCA 1997); Stebilla v. Mussallem, 595 So. 2d 136 (Fla. 5th DCA), rev. denied, 604 So. 2d 487 (Fla.1992). We conclude that the trial court departed from the essential requirements of law in refusing to dismiss Hill’s complaint. We grant the…
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Medina v. The Pub. Health Tr., 743 So. 2d 541 (Fla. 3d DCA 1999)…v. Olortegui, 662 So. 2d 1361 (Fla. 4th DCA 1995). See also Otto v. Rodriguez, 710 So. 2d 1 (Fla. 4th DCA)(failure to comply with records request waives corroborating opinion requirement), review denied, 718 So. 2d 170 (Fla.1998); Watson v. Beckman, 695 So. 2d 436 (Fla. 3d DCA 1997)(same). Medina’s Notice properly characterized the waiver, and the trial court erred in finding otherwise. Based on the foregoing, we reverse the dismissal and remand for further proceedings. Reversed and remanded.…
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Hamilton v. State, 701 So. 2d 858 (Fla. 1997)…WELLS, Justice. We have for review Hamilton v. State, 695 So. 2d 436 (Fla. 4th DCA 1997), which certified the same question of great public importance answered by this Court in Paccione v. State, 698 So. 2d 252 (Fla.1997). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We quash the decision below and remand for…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kukral v. George D. Mekras, M.D., 679 So. 2d 278 (Fla. 1996)
- Serrano v. State, 662 So. 2d 1361 (Fla. 3d DCA 1995)