JOAN MALEY OTTO AND JAMES MALEY, AS THE NATURAL GUARDIANS AND NEXT OF FRIEND OF CHRISTOPHER OTTO, APPELLANTS,
v.
J.J. RODRIGUEZ, M.D., APPELLEE

Fla. 4th DCA | 1998-02-04
No. 96-3557
KLEIN and GROSS, JJ., concur.
710 So. 2d 1 Florida District Court of Appeal, Fourth District (1998) Caution
Cited by 7 cases

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Holding

A defendant's failure to provide complete medical records does not waive the plaintiff's statutory pre-suit notice requirement in a medical malpractice action.


Headnotes

[1] A defendant's failure to provide full and complete medical records does not waive the plaintiff's statutory requirement to provide pre-suit notice in a medical malpractic…

[2] The statutory penalty for a defendant's failure to comply with good faith discovery requirements in a medical malpractice action is a waiver of the plaintiff's duty to fu…

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Facts & Procedural History

Plaintiffs' counsel requested medical records from the defendant doctor, who provided incomplete records. Plaintiffs then filed a medical malpractice …

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Opinion of the Court
STONE, Chief Judge.

STONE, Chief Judge.

We affirm a final order dismissing this medical malpractice complaint for Plaintiffs-Appellants’ failure to provide the pre-suit notice mandated by section 766.106, Florida Statutes. Defendani/Appellee’s failure to provide full and complete medical records under section 766.204, Florida Statutes, which prevented the plaintiffs from obtaining a medical affidavit as required under section 766.205, Florida Statutes, did not constitute a waiver of the required notice.

In May 1995, Appellants’ counsel sent an authorization for medical information to Ap-pellee seeking complete medical information, including copies of duplicates of any x-rays, MRIs, CT scans, or cyanogenic studies. Ap-pellee, in response, sent nine pages of medical record but did not forward diagnostic films. In August 1995, counsel sent a letter requesting copies of x-rays, CT scans or MRIs, obstetric ultrasounds, and cyanogenic studies. Appellee did not respond.

Appellants filed a medical malpractice complaint on November 2, 1995, but did not file an affidavit of corroborating medical opinion as required by section 766.205, or a notice of their intent to file suit as required by section 766.106. They filed suit one day before the statute of limitations expired and acknowledged that they had not complied with the statutory requirement for pre-suit notice. The trial court dismissed their complaint based on this noneomplianee and the expiration of the statute of limitations.

Appellants argue that the notice requirement should be waived where they were unable to fulfill the corresponding statutory pre-suit condition requiring a corroborating medical opinion, due to the doctor’s failure to furnish necessary medical records. See §§ 766.204-05, Fla. Stat (1995).

Section 766.204(2) provides, “Failure to provide copies of such medical records, or failure to make the charge for copies a reasonable charge, shall constitute evidence of failure of that party to comply with good faith discovery requirements and shall waive the requirement of written medical corroboration by the requesting party.” (emphasis added) Patently, the statute does not contemplate waiver of the pre-suit notice requirement. Instead, it specifies that the penalty for failing to comply in good faith with the pre-suit discovery is only a waiver of the plaintiffs duty to furnish corroboration of medical claims. The duties to furnish notice and a medical affidavit are not inextricably linked. A corroborating medical opinion need not accompany the notice of intent as long as both pre-suit requirements are met before the statute of limitations expires. Kukral v. Mekras, 679 So. 2d 278 (Fla.1996).

Moreover, the purpose behind the notice of intent to file suit is “to give the defendant notice of the incident in order to allow investigation of the matter and promote presuit settlement of the claim.” Kuk-ral, 679 So. 2d at 282. In contrast, the purpose of the corroborating medical opinion is to corroborate the legitimacy of the claim and prevent the filing of baseless litigation. Id. To allow Appellants to file their claim without notice would thwart a primary objective of the statute. Here, the parents could have filed notice and then requested the records. The corroborating medical opinion requirement would then be waived upon Ap-pellee’s failure to comply. See Escobar v. Olortegui 662 So. 2d 1361 (Fla. 4th DCA 1995) (holding that the doctor/defendant waived the corroborating medical opinion requirement where the doctor had previously received a notice of intent to file suit but failed to comply with the good faith discovery requirements); Watson v. Beckman, 695 So. 2d 436 (Fla. 3d DCA 1997) (holding that the defendant/dentist waived the corroborating expert opinion requirement where he received a notice of intent but failed to comply with plaintiffs request for dental records).

We note that Appellants did not allege in their complaint that the pre-suit notice requirement had been met, but instead conceded that they failed to comply. Therefore, authorities recognizing that notice may be excused by logistical errors in furnishing it are inapposite. See Ingersoll v. Hoffman, 589 So. 2d 223 (Fla.1991) (notice sent to one brother’s dental studio where the other brother, who was the treating dentist, was an associate); Solimando v. Aloha Med. Ctr., 594 So. 2d 850 (Fla. 2d DCA 1992) (notice sent by regular mail, instead of certified mail).

We recognize that dismissal is a harsh sanction. However, any other result thwarts the underlying requirements of the medical malpractice statutes. Thus, the trial court did not err by dismissing the ease. See Williams v. Campagnulo, 588 So. 2d 982 (Fla.1991) (upholding the dismissal of the cause where the plaintiffs did not file a notice of intent within the statute of limitations period).

KLEIN and GROSS, JJ., concur.


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Citator

Cited By

  • Univ. OF Miami v. Wilson, 948 So. 2d 774 (Fla. 3d DCA 2007)
    …prompt resolution of claims. Kukral v. Mekras, 679 So. 2d 278, 284 (Fla.1996). The presuit notice provides notice to the medical provider and requires an investigation of the matter, in an effort to encourage presuit settlements. Otto v. Rodriguez, 710 So. 2d 1, 2 (Fla. 4th DCA 1998); Fort Walton Beach Med. Ctr., Inc. v. Dingier, 697 So. 2d 575, 579 (Fla. 1st DCA 1997); Chandler v. Novak, 596 So. 2d 749, 750 (Fla. 3d DCA 1992). The University argues that, because the legislative purpose of the Act is to pr…
  • Medina v. The Pub. Health Tr., 743 So. 2d 541 (Fla. 3d DCA 1999)
    …1) ten-day deadline in providing Schlesinger with the requested records, under section 766.204(2) the hospital waived the corroborating affidavit requirement. See Escobar 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,…
  • Yocom v. Wuesthoff Health Sys., Inc., 880 So. 2d 787 (Fla. 5th DCA 2004)
    …a written corroborative expert opinion. The purpose of a corroborating medical opinion is to assure the legitimacy of the claim and to prevent the filing of baseless claims. See Kukral v. Mekras, 679 So. 2d 278 (Fla.1996); Otto v. Rodri [*790] guez, 710 So. 2d 1, 2 (Fla. 4th DCA 1998). The court explained to Dr. Yocom that he could cure the failure to comply with the statutory presuit requirements, so long as the cure was accomplished within the two-year limitations period provided for filing suit. See Kukr…

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