DR. GEORGE RICHARDS, APPELLANT,
v.
WILLIAM HENRY FOULK, JR., APPELLEE
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A medical malpractice defendant appeals the denial of his motion to dismiss for the plaintiff's failure to properly pursue mediation as required by Florida's Medical Malpractice Reform Act of 1975. The court affirmed, holding that the plaintiff's procedural failure was due to inadvertence rather than intentional evasion, and the trial court properly retained jurisdiction.
The trial court properly retained jurisdiction and correctly denied the motion to dismiss because the plaintiff's procedural failure was due to inadvertence rather than intentional evasion of the statutory mediation requirement. The trial judge had discretion to find the failure was not an intentional attempt to evade the medical mediation panel's jurisdiction.
[1] A trial court has jurisdiction over the subject matter and the person of a defendant in a medical malpractice action even if the plaintiff fails to strictly follow statut…
[2] A trial court may dismiss a medical malpractice complaint if the plaintiff intentionally attempts to evade the statutory jurisdiction of a medical mediation panel.
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“It is clear that if the trial judge had found the plaintiff's action was an intentional attempt to evade the statutory jurisdiction of the medical mediation panel, he could have dismissed the complaint.”
Establishes that dismissal is warranted only for intentional evasion, not inadvertent procedural failure
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDr. Richards was sued for medical malpractice by Foulk. Foulk filed a mediation claim under the Medical Malpractice Reform Act of 1975 but failed to d…
The full statement of facts, procedural history, and disposition for this case are member content.
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PEARSON, Judge.
The appellant is a medical doctor who is the defendant in an action claiming medical malpractice. He appeals an order denying his motion to dismiss the complaint upon the ground that the plaintiff had not submitted his claim to mediation of the Medical Malpractice Reform Act of 1975, Section 768.133, Florida Statutes (1975).1 Appellant urges that because of plaintiff’s failure properly to prosecute his claim for medical mediation, which was filed but not prosecuted, that the court lacks jurisdiction of the subject matter and the person of the defendant. The trial court held that the failure to prosecute was due to inadvertence rather than design or neglect and denied the motion. We affirm.
The plaintiff alleged in his amended complaint that he had filed a medical malpractice mediation claim and that the mediation had been terminated by the judicial referee because more than 120 days had passed since the filing of the claim and the jurisdiction of the medical mediation panel had terminated. The record of the medical mediation proceedings was made a part of this record and it shows that the plaintiff filed his claim for medical mediation but that he failed to deliver to the sheriff the summons which was issued. The summons was actually served one day before the expiration of the 120 days allowed for defendant’s answer. Upon the filing of defendant’s motion to dismiss, plaintiff’s attorney filed an affidavit in which he swore that the failure to deliver the summons for service had been an oversight and was not intentional, that he had offered to waive the 120 day requirement at the hearing before the judicial referee but that the defendant had moved and insisted that the medical mediation be terminated.
It is clear that if the trial judge had found the plaintiff’s action was an intentional attempt to evade the statutory jurisdiction of the medical mediation panel, he could have dismissed the complaint. See Section 768.133(l)(a), Florida Statutes (1975). On the other hand, the trial judge properly held that he had jurisdiction both of the subject matter and the person of the defendant, and he properly denied the emotion to dismiss upon a finding that the failure to follow the medical mediation procedure was due to mistake or inadvertence.
The trial judge may, within his discretion, in the malpractice action, impose such sanctions as he finds appropriate for plaintiff’s failure to follow the medical mediation procedure outlined by statute. The court may, if it finds proper, stay the medical malpractice action pending a medical mediation proceeding under the order and direction of the trial court.
Affirmed.
. This statute is now Section 768.44, Florida Statutes (Supp.1976).
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Mercy Hosp., Inc. v. Badia, 348 So. 2d 631 (Fla. 3d DCA 1977)…he petitioner has called to our attention the following cases: State v. Vann, 342 So. 2d 1073 (Fla. 3rd D.C.A.1977); State v. Jacobson, 343 So. 2d 1328 (Fla. 3rd D.C.A. 1977); State v. Cowart, 344 So. 2d 624 (Fla. 3rd D.C.A.1977); Richards v. Foulk, 345 So. 2d 402 (Fla. 3rd D.C.A.1977). In each of the cited cases the facts are distinguishable from the instant case and we, therefore, do not find them either persuasive or controlling. For the reasons above stated, the order of the mediation referee, finding th…
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State of Fla. ex rel. Jack R. Lund, D.O. v. The Honorable Lawrence E. Keough & the Honorable Edward H. Bergstrom, Jr., 352 So. 2d 572 (Fla. 2d DCA 1977)…panel should have been dismissed. See also State ex rel. McGuirk v. Cowart, 344 So. 2d 624 (Fla. 3d DCA 1977). We respectfully disagree with his conclusion that he could not grant a stay pending medical mediation proceedings. Cf. Richards v. Foulk, 345 So. 2d 402 (Fla. 3d DCA 1977). We do not suggest that the circuit judge should be in a position to second-guess the judicial referee in the procedures followed during mediation, but the order which terminated the panel’s jurisdiction in this case had the effec…