DAVID MINCEY, APPELLANT,
v.
MICHAEL MOORE, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
David Mincey appealed the dismissal of his medical malpractice complaint for failure to provide a written corroborating medical opinion. The court reversed, holding that the defendant waived the written medical corroboration requirement by denying Mincey's properly requested medical records.
The court held that the failure to provide copies of requested medical records waives the requirement of written medical corroboration, and once the Department denied the request, the waiver was complete and could not be unilaterally revoked.
[1] A defendant's failure to provide requested medical records waives the plaintiff's requirement for written medical corroboration in a medical malpractice action.
[2] A waiver of the written medical corroboration requirement, once complete due to a defendant's denial of a records request, cannot be unilaterally revoked.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The failure to provide copies of the requested medical records "shall waive the requirement of written medical corroboration by the requesting party."”
States the core statutory provision establishing the waiver mechanism
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Join FLexlaw to unlock all legal intelligenceMincey submitted a written request for his medical records, explicitly stating the request was to comply with Chapter 766's pre-suit requirements. The…
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PER CURIAM.
Appellant, David Mincey, appeals an order dismissing his medical malpractice complaint for failure to provide a written corroborating medical opinion either with his notice of intent to sue or afterwards. See sec. 766.208, Fla. Stat. (1999). We reverse.
The failure to provide copies of the requested medical records “shall waive the requirement of written medical corroboration by the requesting party.” Sec. 766.204(2), Fla. Stat. (1999); see also De La Torre v. Orta, 785 So. 2d 553 (Fla. 3d DCA 2001) (“[P]laintiffs may obtain the benefit of subsection 766.204(2) simply by showing that defendant failed to produce, duly requested documents. To invoke this part of the statute, plaintiffs need not make any showing that they were prejudiced by the nonproduction.”); Medina v. Public Health Trust, 743 So. 2d 541 (Fla. 3d DCA 1999), review denied, 763 So. 2d 1044 (Fla.2000); Otto v. Rodriguez, 710 So. 2d 1 (Fla. 4th DCA), review denied, 718 So. 2d 170 (Fla.1998); Watson v. Beckman, 695 So. 2d 436 (Fla. 3d DCA 1997). In this case, Appellant submitted a written request for his medical records in which he stated that the request was being made in order to comply with the pre-suit requirements of Chapter 766. The Department denied his request. Appellant then filed his notice of intent to sue, stating that the Department had waived the corroboration requirement. Only then did the Department offer to make copies for Appellant. However, after having already denied the request, the Department’s waiver was complete and could not be unilaterally revoked.
Accordingly, because the Department waived the written medical corroboration requirement when it denied Appellant’s request for his medical records, we REVERSE the dismissal of Appellant’s complaint and REMAND for further proceedings.
ALLEN, C.J., and MINER and DAVIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bailey v. Fla. Dep't OF Corr., 904 So. 2d 649 (Fla. 4th DCA 2005)…waived because the defendants did not timely comply with the records request and did not offer to provide the records until after Bailey served his notice of intent to file suit. See §§ 766.204(1) and 766.204(2), Fla. Stat. (2002); Mincey v. Moore, 814 So. 2d 1081 (Fla. 1st DCA 2002) (reversing an order dismissing an inmate’s complaint for failure to provide a corroborating medical opinion, finding that defendant waived the pre-suit requirement because the Depart [*651] ment of Corrections initially denied th…
Authorities Cited
- Armando DE LA Torre, M.D. v. Orta, 785 So. 2d 553 (Fla. 3d DCA 2001)
- Medina v. The Pub. Health Tr., 743 So. 2d 541 (Fla. 3d DCA 1999)
- Hamilton v. State, 695 So. 2d 436 (Fla. 4th DCA 1997)
- Shelby and Thomas Watson v. Nathan Beckman, D.D.S., 695 So. 2d 436 (Fla. 3d DCA 1997)
- Marci Smith v. Morgan Carratt & O'Conner, P.A., 710 So. 2d 1 (Fla. 4th DCA 1998)
- Otto v. J.J. Rodriguez, M.D., 710 So. 2d 1 (Fla. 4th DCA 1998)