OSVALDO TAPIA-RUANO, ET AL., APPELLANTS,
v.
LUIS O. ALVAREZ, M.D., ET AL., APPELLEES
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Plaintiffs appealed the dismissal of their medical malpractice complaint against Dr. Alvarez for failure to provide a verified written medical expert opinion before filing suit, as required by Florida law. The court affirmed the dismissal, holding that plaintiffs' failure to comply with the presuit expert opinion requirement before the statute of limitations expired was fatal to their claim, and that a hospital's failure to provide records did not waive the requirement as to the individual defendant physician.
The court held that the failure by a non-defendant hospital to provide medical records cannot be imputed to an individual physician defendant and does not waive the written medical corroboration requirement as to that defendant. A plaintiff's failure to comply with the presuit expert opinion requirement before the statute of limitations expires is fatal to the claim and cannot be cured by attempting compliance after expiration of the limitations period.
[1] A plaintiff must provide a verified written medical expert opinion prior to filing a medical malpractice complaint to comply with statutory presuit requirements.
[2] A defendant's failure to provide medical records does not waive the requirement of written medical corroboration by the requesting party if the requesting party never mad…
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Join FLexlaw to unlock all legal intelligence“the failure by the hospital to provide medical records cannot be imputed to Doctor Alvarez”
Establishes that a non-defendant's failure to produce records does not waive requirements applicable to the named physician defendant
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Join FLexlaw to unlock all legal intelligenceThe alleged medical malpractice occurred on August 12, 1996. Plaintiff Estanillo provided timely notice of intent to initiate litigation but never pro…
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PER CURIAM.
Appellants/plaintiffs, Maria Gloria Es-tanillo and Osvaldo Tapia-Ruano, appeal the dismissal with prejudice of their medical malpractice complaint for failure to comply with the requirements of section .766.203, Florida Statutes (1997), because Estanillo did not provide appellees/defendants, Luis O. Alvarez, M.D. and Luis O. Alvarez, M.D., P.A., with a verified written medical expert opinion prior to the filing of their complaint. We affirm because Es-tanillo failed to comply with the presuit medical expert opinion requirement prior to the expiration of the limitations period for the filing of her cause of action.
Estanillo admits that she did not file a corroborating affidavit from a medical expert, but argues that pursuant to section 766.204, Florida Statutes (1997), such a requirement was waived. This statute requires that the medical records be provided upon request, and, under section 766.204(2), the failure to provide copies of such medical records “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). Estanillo, however, never made a request of Doctor Alvarez for any records. She relies on the failure of the co-defendant Palm Springs Hospital to provide medical records. We hold that the failure by the hospital to provide medical records cannot be imputed to Doctor Alvarez.
It is not disputed that the alleged medical malpractice occurred on August 12, 1996 and that Estanillo gave timely notice of intent to initiate litigation pursuant to section 766.101, et seq., Florida Statutes (1997), but she failed to provide the requisite medical expert opinion to corroborate reasonable grounds to support her claim for medical negligence.
On numerous occasions, Doctor Alvarez’s insurance carrier notified Estanillo of the requisite corroborating expert opinion. At that time, Estanillo could have timely complied with the presuit medical expert opinion requirement as the statute of limitations had not yet expired. Estanillo admits that she never requested any medical records from Doctor Alvarez and she has not alleged that the failure to obtain the hospital records made it impossible for her to provide the corroborating affidavit. As in Royle v. Florida Hospital-East Orlando, 679 So. 2d 1209, 1212 (Fla. 5th DCA 1996), Estanillo “did not lack the capabilities to comply with the statutory requirements but rather, she simply failed to follow the procedure set forth in the statute. Therefore, it was human failure, not the presuit requirements which [prevented her]” from maintaining her cause of action in compliance with the medical malpractice statute.
Under the facts of this case, the failure by Palm Springs Hospital to provide the requisite medical records did not waive the written medical corroboration requirement as it relates to Doctor Alvarez. When Estanillo finally attempted to cure the defect, on June 14,1999, the statute of limitations had expired six months prior. See Kukral v. Mekras, 679 So. 2d 278 (Fla.1996); Miami Physical Therapy Associates, Inc. v. Savage, 632 So. 2d 114 (Fla. 3d DCA 1994); Turner v. Foss, 655 So. 2d 1151 (Fla. 5th DCA 1995). Thus, the trial court correctly dismissed Estanillo’s complaint with prejudice.
Affirmed.
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Largie v. Michael Gregorian, M.D., 913 So. 2d 635 (Fla. 3d DCA 2005)…merits”); see also McPherson v. Phillips, 877 So. 2d 755, 760 (Fla. 4th DCA 2004)(noting that the statute of limitations “circumscribefs] the trial court’s discretion in dealing with a [claim of] Chapter 766 noncompliance”); Tapia-Ruano v. Alvarez, 765 So. 2d 942, 943-44 (Fla. 3d DCA 2000)(affirming dismissal where the statute of limitations had run and plaintiff provided no reason for failure to comply with the presuit requirements); Central Florida Reg’l Hosp. v. Hill, 721 So. 2d 404, 406 (Fla. 5th DCA 199…
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Anderson v. Wagner, 955 So. 2d 586 (Fla. 5th DCA 2006)…o Dr. Wagner and Associates. The Third District Court has held that a hospital's failure to provide the required expert corroboration cannot be imputed to a co-defendant from whom the claimant never requested medical records. Tapia-Ruano v. Alvarez, 765 So. 2d 942, 943-44 (Fla. 3d DCA 2000). Logically, the opposite would also apply. While one party may have waived its right to a medical expert opinion, this waiver is not imputed to other codefendants. Here, Mr. Anderson clearly requested medical records from…
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Irv Cohen v. W. Boca Med. Ctr., Inc., 854 So. 2d 276 (Fla. 4th DCA 2003)…utorily required information, the statute of limitations had run. We therefore conclude that, because there was no reasonable explanation for plaintiffs failure to comply with the pre-suit requirements, dismissal was proper. Tapia-Ruano v. Alvarez, 765 So. 2d 942 (Fla. 3d DCA 2000)(affirming dismissal where statute of limitations had run and plaintiff provided no reason for failure to comply with the presuit requirements); Royle v. Florida Hospital-East Orlando, 679 So. 2d 1209 (Fla. 5th DCA 1996)(same). Af…
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
- Kukral v. George D. Mekras, M.D., 679 So. 2d 278 (Fla. 1996)
- Miami Physical Therapy Assocs., Inc. v. Savage, 632 So. 2d 114 (Fla. 3d DCA 1994)
- Royle v. Florida Hospital-East Orlando, 679 So. 2d 1209 (Fla. 5th DCA 1996)
- Maria B. Tunner, M.D. v. Foss, 655 So. 2d 1151 (Fla. 5th DCA 1995)