PERRY B. HOELTZELL, M.D., P.A., AND PERRY B. HOELTZELL, M.D., INDIVIDUALLY, APPELLANTS,
v.
MARIE ERENSTOFT, APPELLEE
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The court affirmed the trial court's order striking a physician's pleadings for failing to comply with the presuit affidavit requirement under Florida Statutes section 766.206(3), but denied the plaintiff's request for appellate attorney's fees because the statute does not authorize such fees.
A physician who fails to include an expert affidavit in a pro se response to a medical malpractice claim violates section 766.206(3), and the trial court properly strikes such pleadings.
[1] A physician's failure to include an expert affidavit in a pro se response to a medical malpractice claim constitutes a violation of section 766.206(3) warranting dismissa…
[2] Attorney's fees under section 766.206(3) are limited to fees incurred during investigation and evaluation of the claim and do not include appellate fees.
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KLEIN, J.
We affirm the order granting the motion of the plaintiff in this medical malpractice case to strike the physician’s pleadings for failing to comply with the presuit provisions of section 766.206, Florida Statutes (2007). It is undisputed that the physician violated section 766.206(3) in that he did not, in his pro se response to the claim, include an affidavit of an expert witness. In addition, the trial court noted that the plaintiff lost the opportunity to identify additional defendants, prior to the running of the statute of limitations, because of the physician’s failure to timely respond.
We deny plaintiffs motion for appellate attorney’s fees, grounded on section 766.206(3), which provides in part:
The person who mailed such response, whether the defendant, the defendant’s insurer, or the defendant’s attorney, shall be personally liable for all attorney’s fees and costs incurred during the investigation and evaluation of the claim, including the reasonable attorney’s fees and costs of the claimant.
Because fee statutes are strictly construed, Campbell v. Goldman, 959 So. 2d 223 (Fla.2007), and the statute does not authorize appellate fees, we deny plaintiffs motion for appellate attorney’s fees. Rodriguez v. Campbell, 778 So. 2d 511, 512 (Fla. 4th DCA 2001) (limiting fees under the same statute for trial court work to fees incurred “during the investigation and evaluation.”)
Affirmed.
STONE and FARMER, JJ., concur.
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Berry v. Padden, 84 So. 3d 1145 (Fla. 4th DCA 2012)…opps v. Foltz, 806 So. 2d 588, 584-85 (Fla. 4th DCA 2002) (holding that the failure to comply with the statutory presuit requirements does not warrant a dismissal with prejudice if the statute of limitations has not yet run); Hoeltzell v. Erenstoft, 985 So. 2d 636, 636-37 (Fla. 4th DCA 2008) (holding that physician’s pro se response to a complaint was properly stricken for failure to comply with presuit screening requirements); Archer v. Maddux, 645 So. 2d 544, 547 (Fla. 1st DCA 1994) (holding that the plaint…
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Staples v. Ann E. Duerr, M.D. & Panhandle Anesthesiology Assocs., P.A., 76 So. 3d 1114 (Fla. 1st DCA 2011)…, 731 (Fla. 1st DCA 2007); see also State Farm Fla. Ins. Co. v. Silber, 72 So. 3d 286, 288 (Fla. 4th DCA 2011). Courts engaging in the interpretation of a fee statute must strictly construe the statute’s language. See Hoeltzell v. [*1116] Erenstoft, 985 So. 2d 636, 637 (Fla. 4th DCA 2008). Section 766.206(2), Florida Statutes (2007) — which comes in the midst of the statutory section dealing with medical malpractice actions — states the following: If the court finds that the notice of intent to initiate lit…
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Daddono v. Knight (M.D. Fla. 2022)…not make that expert competent. See 2018 WL 9362259, at *2. In the instant case, Dr. Wilcox’s competency is not challenged—only his lapsed certificate. Plaintiff’s Position—Striking a Defendant’s Answer Plaintiff relies on Hoeltzell v. Erenstoft, 985 So. 2d 636 (Fla. 4th DCA 2008), as authority for striking the Charlotte Defendants’ answer. Dkt. 121 at 3. Hoeltzell discloses few facts. In Hoeltzell, the trial court struck the defendant physician’s pleadings for failure to comply with the presuit provisi…
Authorities Cited
- Campbell v. Clivens Goldman, 959 So. 2d 223 (Fla. 2007)
- Rodriguez v. David Campbell, M.D., 778 So. 2d 511 (Fla. 4th DCA 2001)