ILENE GORADESKY AND HAROLD GORADESKY, HUSBAND AND WIFE, APPELLANTS,
v.
DR. PETER HICKOX AND CLEVELAND CLINIC FLORIDA HOSPITAL, APPELLEES

Fla. 4th DCA | 1998-11-25
No. 97-1493
FARMER and TAYLOR, JJ., concur.
721 So. 2d 419 Florida District Court of Appeal, Fourth District (1998) Positive Treatment
Cited by 2 cases

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Synopsis

The Goradeskys appealed the dismissal of their medical malpractice complaint against Dr. Hickox for failure to comply with Florida's presuit notice and expert affidavit requirements. The court affirmed the dismissal, holding that the expert affidavit requirement must be satisfied within the statutory limitations period, and that the Goradeskys' failure to do so, combined with inadequate presuit investigation and willful discovery violations, warranted dismissal with prejudice.


Holding

The court held that the expert affidavit requirement must be satisfied within the statutory limitations period, and that no exception exists for cases where injuries are still evolving or multiple parties may be at fault. The court affirmed dismissal with prejudice based on both the failure to file the required affidavit within the limitations period and the Goradeskys' inadequate presuit investigation and willful discovery violations.


Headnotes

[1] A medical malpractice action must be dismissed with prejudice if the plaintiff fails to file a corroborating expert affidavit within the applicable statute of limitations…

[2] The statute of limitations for a medical malpractice claim begins to run when the plaintiff discovers or should have discovered the injury and its reasonable possibility…

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Key Quotes

“While these grounds may have excused the Goradeskys from providing the affidavit at the time they filed their complaint, there is no authority that excepts the filing of the corroborating expert affidavit requirement within the limitations period.”

Establishes that statutory presuit requirements, including expert affidavits, must be satisfied within the limitations period regardless of circumstances

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Facts & Procedural History

The Goradeskys filed a medical malpractice claim against Dr. Hickox arising from Mrs. Goradesky's 1992 surgery. The statute of limitations began runni…

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Opinion of the Court
POLEN, Judge.

POLEN, Judge.

llene and Harold Goradesky (“the Gorade-skys”) timely appeal from an order dismissing with prejudice them medical malpractice complaint against Dr. Peter Hickox and the Cleveland Clinic (“Hickox”). The court found that the Goradeskys failed to file a corroborating expert affidavit in accordance with the presuit requirements of section 766.203(2), Florida Statutes (1993), and, alternatively, that they substantially and wilfully failed to comply with other statutory presuit requirements. We affirm.

The record reflects that the two-year statute of limitations period under section 95.11(4), Florida Statutes (1993), for the Go-radeskys’ bringing their claim for negligence against Hickox began running in August, 1993.1 They failed to file, pursuant to section 766.203(2), Florida Statutes (1993), any affidavit of a qualified medical expert establishing that reasonable grounds existed to support their claim for negligence at any time before their ease was dismissed on April 3, 1997.

Nevertheless, they argue that they did not have to file an affidavit in this case because the extent of Mrs. Goradesky’s injuries from her 1992 surgery was still evolving and, thus, not yet known at the time her case was dismissed. They also argue that their experts were unable and unwilling to sign such an affidavit partly because doctors other than Hickox may have been at fault. While these grounds may have excused the Gorade-skys from providing the affidavit at the time they filed their complaint, there is no authority that excepts the filing of the corroborating expert affidavit requirement within the limitations period. Kukral v. Mekras, 679 So. 2d 278, 284 (Fla.1996); see also Hospital Corp. of America v. Lindberg, 571 So. 2d 446 (Fla.1990)(holding that a notice of intent was timely so long as it was filed within the statutory limitations period); § 766.203(2), Fla. Stat. (1995).

Because the record reflects that the statute of limitations had long expired by the time the court entered the final order, we affirm dismissal of this action.

Alternatively, we affirm dismissal based on the trial court’s findings that the Goradeskys failed to conduct a reasonable presuit investigation before filing the notice of intent, and then wilfully failed to comply with presuit discovery. Absent any transcript, pleading, or affidavit contradicting those findings, we are unable to conclude the trial court abused its discretion in dismissing the complaint with prejudice as sanctioned under section 766.206(2) and (3), Florida Statutes (1993).

AFFIRMED.

FARMER and TAYLOR, JJ., concur. . Mrs. Goradesky testified in her interrogatories and at deposition that by August, 1993 she became aware that she had been injured and that there was a reasonable possibility that medical negligence by Hickox had caused her injuries.


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  • …ssistance to guide them through this process. As evidenced by the numerous decisions concerning the pretrial medical negligence process, the existing law has been a series of traps and a minefield for many Floridians. See, e.g., Goradesky v. Hickox, 721 So. 2d 419, 420 (Fla. 4th DCA 1998) (affirming dismissal of claim for failing to file corroborating expert affidavit and failure to conduct reasonable presuit investigation [*684] before filing notice of intent); Kukral v. Mekras, 647 So. 2d 849, 850-51 (Fla.…

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