DAVID C. SCHERER, DPM, DAVID C. SCHERER, DPM, P.A. AND PODIATRY MANAGEMENT, INC., PETITIONERS,
v.
PATRICIA ANN RIGSBY, RESPONDENT
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The Fourth District Court of Appeal denied defendants' petition for certiorari challenging the trial court's refusal to hear a third motion for summary judgment based on alleged noncompliance with medical malpractice presuit notice requirements under Florida Statutes section 766.106(2) and Florida Rule of Civil Procedure 1.650.
A trial court does not depart from the essential requirements of law by declining to hear a third motion for summary judgment raising presuit notice requirement arguments, even when accompanied by new affidavits and case law.
[1] Certiorari review is available to challenge a trial court's denial of a motion to dismiss for failure to comply with medical malpractice presuit investigation requirement…
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Join FLexlaw to unlock all legal intelligenceDefendants in a medical malpractice action filed three motions for summary judgment, each alleging that the plaintiff failed to comply with presuit no…
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Defendants below appeal the trial court’s order declining to hear their third motion for summary judgment. Each of the motions alleged, among other things, that the plaintiff in this medical malpractice action did not comply with the presuit notice requirements of section 766.106(2), Florida Statutes, and Florida Rule of Civil Procedure 1.650. The defendants alleged that their third motion for summary judgment raised new arguments with updated affidavits and case law.
Where chapter 766 presuit requirements are at issue, a party may seek certiorari review. See Martin Mem’l Med. Ctr., Inc. v. Herber, 984 So.2d 661, 662 (Fla. 4th DCA 2008) (“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.”). An appellate court may grant certiorari where the trial court’s action departs from the essential requirements of the law from which the petitioner will suffer irreparable harm which cannot be cured on plenary appeal. *562 Id. at 663. Treating the defendants’ appeal as a petition for writ of certiorari, we find that the trial court did not depart from the essential requirements of the law in declining to hear the defendants’ third motion for summary judgment.
Petition denied.
POLEN and FARMER, JJ., concur.
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Kissimmee Health Care Assocs. v. Garcia, 76 So. 3d 1107 (Fla. 5th DCA 2011)…. 2d 1097, 1099 (Fla.1987), there is a well-established exception for motions to dismiss for failure to comply with presuit conditions precedent. See Martin Mem'l Med. Ctr., Inc. v. Berber, 984 So. 2d 661, 662 (Fla. 4th DCA 2008); Scherer v. Rigsby, 24 So. 3d 561 (Fla. 4th DCA), rev. denied, 23 So. 3d 712 (Fla. 2009). The rationale underlying this exception is that statutes requiring presuit screening "cannot be meaningfully enforced post-judgment because the purpose of the presuit screening is to avoid the…
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Authorities Cited
- Martin Mem'l Med. Ctr., Inc. v. Herber, 984 So. 2d 661 (Fla. 4th DCA 2008)