ST. MARY'S HOSPITAL, PETITIONER,
v.
DAVID W. BELL, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DAVID W. BELL, JR., DECEDENT, RESPONDENT
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St. Mary's Hospital petitioned for a writ of certiorari to review an order denying its motion to dismiss a medical malpractice action for failure to comply with Florida's presuit notice and investigation requirements. The court dismissed the petition, holding that while certiorari may review whether a trial judge followed procedural requirements, it cannot be used to reweigh evidence regarding the sufficiency of a plaintiff's presuit investigation.
Certiorari is available to review whether a trial judge followed the procedural requirements of chapter 766, but certiorari does not extend to reviewing the sufficiency of evidence regarding whether counsel complied with presuit investigation obligations. The petition for writ of certiorari is dismissed.
[1] Certiorari may lie from orders denying motions to dismiss for failure to comply with the presuit requirements of chapter 766, Florida Statutes, in medical malpractice act…
[2] Appellate courts may not reweigh the evidence presented concerning compliance with statutory presuit requirements via certiorari.
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Join FLexlaw to unlock all legal intelligence“Certiorari may lie from orders denying motions to dismiss for failure to comply with the presuit requirements of chapter 766 in medical malpractice actions [...] However, certiorari does not lie for appellate courts to reweigh the evidence presented concerning compliance with the presuit statutory requirements.”
Establishes the scope of certiorari review—it can address procedural compliance but not evidentiary sufficiency.
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Join FLexlaw to unlock all legal intelligenceA child died of bronchopneumonia in May 1998. The child's personal representative filed suit alleging the hospital negligently failed to properly exam…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
We dismiss the petition for writ of certiorari from an interlocutory order which, after a hearing, denied the petitioner hospital’s motion to dismiss for failure to comply with the presuit requirements of chapter 766, Florida Statutes (2000).
Respondent is the personal representative of the estate of his child, who died in May, 1998, of bronchopneumonia. Counsel for the child’s parents served on the hospital a notice of intent to initiate litigation pursuant to section 766.106(2). The notice alleged a failure to properly deliver medical care at the hospital’s emergency room. Accompanying the notice was the affidavit of a physician citing the mother’s claim that she took her child to the emergency room four to five days prior to his death.
The respondent’s complaint alleged that the decedent’s mother took him to the hospital on or about May 5, 1998. The hospital filed an amended motion to dismiss based on the plaintiffs failure to comply with the presuit requirements of section 766.106. The hospital argued that the respondent did not produce a copy of any hospital record supporting its assertion that the decedent had been taken to the hospital. The hospital contended that a search of its records uncovered nothing indicating that the decedent had ever been taken to the hospital. The hospital assert ed that counsel for the respondent failed to make a reasonable investigation to determine whether there were grounds for a good faith belief that the hospital had been negligent in the care and treatment of the child.
At an evidentiary hearing, the hospital’s witnesses testified around one theme— that the lack of records or documentation indicated that the decedent had never come to the hospital for treatment. The trial court denied the hospital’s motion to dismiss.
Certiorari may lie from orders denying motions to dismiss for failure to comply with the presuit requirements of chapter 766 in medical malpractice actions. See, e.g., Citron v. Shell, 689 So. 2d 1288, 1290 (Fla. 4th DCA 1997), disapproved on other grounds, Cohen v. Dauphinee, 739 So. 2d 68 (Fla.1999); Cent. Fla. Reg’l Hosp. v. Hill, 721 So. 2d 404, 405 (Fla. 5th DCA 1998). However, certiorari does not lie for appellate courts to reweigh the evidence presented concerning compliance with the presuit statutory requirements.
This case is analogous to Ortega v. Silva, 712 So. 2d 1148 (Fla. 4th DCA 1998). There we ruled that certiorari was unavailable to review the sufficiency of the evidence to allow a claim for punitive damages under section 768.72, Florida Statutes (2000). Id. at 1149. We cited to Simeon, Inc. v. Cox, 671 So. 2d 158 (Fla.1996), for the holding that certiorari jurisdiction is appropriate to review whether a trial judge has conformed with the procedural requirements of section 768.72, but not so broad as to encompass review of the sufficiency of the evidence to support a claim for punitive damages when the trial judge has followed the procedural requirements of that statute. Id. at 160.
Applying Ortega to this case, certiorari is available to review whether a trial judge followed chapter 766 and whether a plaintiff complied with presuit notice and investigation requirements; certiorari is not so broad as to encompass review of the evidence regarding the sufficiency of counsel’s presuit investigation.
In this case, the absence of a written record of an exam, evaluation, or treatment of the child is among the types of deviations of care attributed to the defendant hospital. The affidavit of the medical expert incorporates the mother’s report that she took the child to the hospital in May, 1998, where he was seen but his chest and lungs were not examined. Whether the child was ever a patient at the emergency room may emerge as the central fact issue in the case.
The petition for writ of certiorari is dismissed. See Bared & Co. v. McGuire, 670 So. 2d 153 (Fla. 4th DCA 1996).
STEVENSON, SHAHOOD and GROSS, JJ., concur.
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Williams v. Keith Robinson Oken, M.D., 62 So. 3d 1129 (Fla. 2011)…the decision of the First District Court of Appeal in Oken v. Williams, 23 So. 3d 140 (Fla. 1st DCA 2009), on the ground that it expressly and directly conflicts with a decision of the Fourth District Court of Appeal in St. Mary’s Hospital v. Bell, 785 So. 2d 1261 (Fla. 4th DCA 2001), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we quash the First District’s decision in Oken, and approve the Fourth District’s decision in St. Mary’s. Because we…1 / 2
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Lynn R. Fassy, M.D., & Pain Med. Assocs., P.A. v. Crowley, 884 So. 2d 359 (Fla. 2d DCA 2004)…nonfinal order departs from the essential requirements of the law. Id. at 649. Certiorari jurisdiction may lie when chapter 766 presuit requirements are at issue. Pearlstein v. Malunney, 500 So. 2d 585 (Fla. 2d DCA 1986); St. Mary’s Hosp. v. Bell, 785 So. 2d 1261, 1262 (Fla. 4th DCA 2001); Okaloosa County v. Custer, 697 So. 2d 1297, 1297 (Fla. 1st DCA 1997). The statutes requiring presuit notice and screening “cannot be meaningfully enforced postjudgment because the purpose of the presuit screening is to avo…
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Martin Mem'l Med. Ctr., Inc. v. Herber, 984 So. 2d 661 (Fla. 4th DCA 2008)…1288, 1290 (Fla. 4th DCA 1997), disapproved on other grounds. Certiorari may lie to review an order denying a motion to dismiss for failure to comply with presuit investigation requirements in a medical malpractice action. St. Mary’s Hosp. v. Bell, 785 So. 2d 1261, 1262 (Fla. 4th DCA 2001) (citing Citron, 689 So. 2d 1288; Cent. Fla. Reg’l Hosp. v. Hill, 721 So. 2d 404, 405 (Fla. 5th. DCA 1998)). This case arises out of a claim for medical malpractice allegedly committed upon Dorothy Herber by Martin Memorial…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Bared & Co., Inc. v. McGUIRE, 670 So. 2d 153 (Fla. 4th DCA 1996)
- Simeon, Inc. v. COX, 671 So. 2d 158 (Fla. 1996)
- Cent. Fla. Reg'l Hosp. v. Hill, 721 So. 2d 404 (Fla. 5th DCA 1998)
- Michael J. Cohen, M.D. v. Dauphinee, 739 So. 2d 68 (Fla. 1999)
- Carl Citron, M.D. v. Shell, 689 So. 2d 1288 (Fla. 4th DCA 1997)
- Ortega v. Silva, 712 So. 2d 1148 (Fla. 4th DCA 1998)