DOROTHY HERBER, APPELLANT,
v.
MARTIN MEMORIAL MEDICAL CENTER, INC., APPELLEE
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Dorothy Herber appealed the trial court's dismissal of her medical malpractice case for failure to comply with Florida's pre-suit notice requirements. The Fourth District reversed, holding that the hospital's failure to timely provide medical records waived the affidavit requirement, and that Herber's claim rested on a reasonable basis supported by expert consultation within the statute of limitations period.
The trial court's dismissal was reversed. The hospital's failure to timely provide medical records waived the requirement for a written corroborating affidavit. Herber's claim rested on a reasonable basis as demonstrated by the MRSA cluster, the timing of her surgery, and Dr. Bakken's affidavit. The reasonable investigation requirement was satisfied by her attorney's pre-suit consultation with Dr. Bakken before the statute of limitations ran, regardless of whether full compliance occurred before the notice of intent was filed.
[1] A healthcare provider's failure to timely provide medical records waives the requirement for a corroborating affidavit with the notice of intent.
[2] The standard for determining whether a claim rests on a reasonable basis is similar to the standard for determining whether a complaint states a cause of action.
Previewing 2 of 5 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“Because Martin Memorial did not provide [certain] [medical] records within ten days, the statute provides that Ms. Herber was under no obligation to furnish a corroborating affidavit with her notice of intent or any time thereafter.”
Establishes that hospital's failure to timely provide records waived the affidavit requirement under subsection 766.204(2)
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Join FLexlaw to unlock all legal intelligenceHerber underwent surgery at Martin Memorial Medical Center and allegedly acquired an infection during an MRSA cluster outbreak at the hospital. Her at…
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We reverse the trial court’s order dismissing this case for failure to comply with section 766.206, Florida Statutes (2009). In Martin Memorial Medical Center, Inc. v. Herber, 984 So.2d 661, 664 (Fla. 4th DCA 2008), we wrote that “[b]ecause Martin Memorial did not provide [certain] [medical] records within ten days, the statute provides that Ms. Herber was under no obligation to furnish a corroborating affidavit with her notice of intent or any time thereafter.” Under subsection 766.204(2), Florida Statutes (2009), the hospital’s failure to timely provide medical records waived the requirement of a “written opinion” under subsection 766.202(5) and section 766.203, Florida Statutes (2009).
When a trial court must decide whether a claim “rests on a reasonable basis” within the meaning of subsection 766.206(1), “the standard as to whether a reasonable basis has been shown should be similar to the standard that is applied to determine whether a complaint states a cause of action.” Holden v. Bober, 39 So.3d 396, 400 (Fla. 2d DCA 2010). This ruling is reviewed de novo. See Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 (Fla. 4th DCA 2005). The MRSA cluster at the hospital, the timing of Herber’s surgery, and the 2009 affidavit of Dr. Bakken1 were sufficient to establish that the claim rested on a reasonable basis at this early stage of the proceedings. See Kukral v. Meleras, 679 So.2d 278, 284 (Fla. 1996) (observing that a “fully verified corroborating expert opinion in support of the claim,” along with the other circumstances of the claim, “mooted any issue as to the existence of a reasonable basis for the claim”). In so holding, we note that “[t]he provisions of sections 766.201-.212, Florida Statutes, are not to be allowed to impinge upon plaintiffs’ right of access to the courts and must be construed as imposing upon plaintiffs only a reasonable and limited duty before allowing them to file a suit.” Shands Teaching Hosp. & Clinics, Inc. v. Barber, 638 So.2d 570, 571 (Fla. 1st DCA 1994) (citations omitted).
The reasonableness of an investigation under section 766.206(2) is a factual matter, which is reviewed on appeal for competent, substantial evidence. See Duffy v. Brooker, 614 So.2d 539, 542, 545 (Fla. 1st DCA 1993), abrogated on other grounds by Shands Teaching Hosp. v. Miller, 642 So.2d 48, 49 (Fla. 1st DCA 1994). It appears that the trial court determined that the reasonableness of the investigation had to be determined as of *3the date that the notice of intent was filed. However, the Supreme Court has not imposed such a draconian time limitation on presuit requirements; “the failure to comply with the presuit requirements of the statute is not necessarily fatal to a plaintiffs claim so long as compliance is accomplished within” the statute of limitations period. Kukral, 679 So.2d at 283-84. In March and April, 2005, before the statute of limitations ran, Herber’s attorney reviewed the case against every potential defendant and consulted with Dr. Bakken, who informed him “that there were reasonable grounds to believe” that the hospital was negligent in the treatment of Herber, which caused her injury. This satisfied the reasonable investigation requirement of the statute.
Reversed and remanded.
STEVENSON, GROSS, JJ., and STREITFELD, JEFFREY E., Associate Judge, concur.
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Howell v. William Balchunas, M.D., Pensacola Radiology Consultants, P.A. (Fla. 1st DCA 2019)…was never any definitive corroboration that the McCullas’ claims were legitimate, i.e., that Dr. Rell provided negligent care and treatment . . . and that such negligence resulted in an injury to Mr. McCulla”). Cf. Herber v. Martin Mem’l Med. Ctr., 76 So. 3d 1, 3 (Fla. 4th DCA 2011) (finding that an expert’s opinion that “there were reasonable grounds to believe” that the appellee hospital “was negligent in the treatment of [the appellant], which caused her injury” satisfied the reasonable investigation r…
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Yuri Bery v. Ghassan Fahel, D.O., 194 So. 3d 1099 (Fla. 3d DCA 2016)…in Section' 766.102, but also because the attorney persisted in the use of Dr. Khilnani’s affidavit even after it was disclaimed and withdrawn by the affiant himself before the presuit period' had expired. See Herber v. Martin Mem’l Med. Ctr., Inc., 76 So. 3d 1, 2-3 (Fla. 4th DCA 2011) (holding that factors in considering “the reasonableness of the investigation” can include actions taken after the notice of intent was filed). Once the trial court found that the presuit affidavit did not meet the statutory…
Authorities Cited
- Kukral v. George D. Mekras, M.D., 679 So. 2d 278 (Fla. 1996)
- Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188 (Fla. 4th DCA 2005)
- Patrick M. Duffy, M.D. v. Brooker, 614 So. 2d 539 (Fla. 1st DCA 1993)
- Martin Mem'l Med. Ctr., Inc. v. Herber, 984 So. 2d 661 (Fla. 4th DCA 2008)
- Shands Teaching Hosp. & Clinics, Inc. v. Barber, 638 So. 2d 570 (Fla. 1st DCA 1994)
- Shands Teaching Hosp. v. Miller, 642 So. 2d 48 (Fla. 1st DCA 1994)
- Holden v. Donna Schutzman Bober, M.D., 39 So. 3d 396 (Fla. 2d DCA 2010)
- Trett v. State, 39 So. 3d 396 (Fla. 5th DCA 2010)