Holden v. Bober

• Decision Date: 23 June 2010
• Docket Number: No. 2D09-4112.,2D09-4112.
• Parties: Michael HOLDEN, Petitioner,v.Donna Schutzman BOBER, M.D., Emcare of Florida, Inc., Qin Gu, M.D., David W. Malka, M.D., P.A., d/b/a The Malka Institute of Neuroscience & Disease, and Morton Plant Hospital Association, Inc., d/b/a Morton Plant North Bay Hospital, Respondents.
• Court: Florida District Court of Appeals

39 So.3d 396

Michael HOLDEN, Petitioner,v.Donna Schutzman BOBER, M.D., Emcare of Florida, Inc., Qin Gu, M.D., David W. Malka, M.D., P.A., d/b/a The Malka Institute of Neuroscience & Disease, and Morton Plant Hospital Association, Inc., d/b/a Morton Plant North Bay Hospital, Respondents.

No. 2D09-4112.

District Court of Appeal of Florida,

Second District.

June 23, 2010.

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David D. Dickey of The Yerrid Law Firm, P.A., Tampa, and Brett Alan Geer of The Geer Law Firm, L.C., Tampa, for Petitioner.

Mark E. McLaughlin and Nancy S. Paikoff of MacFarlane Ferguson & McMullen, Tampa, for Respondents Qin Gu, M.D., and David W. Malka, M.D., P.A., d/b/a The Malka Institute of Neuroscience & Disease.

No appearance for Respondents Donna Schutzman Bober, M.D.; Emcare of Florida, Inc.; Morton Plant Hospital Association, Inc., d/b/a Morton Plant North Bay Hospital.

CRENSHAW, Judge.

Michael Holden petitions the court for certiorari review of the circuit court's order granting Dr. Qin Gu and Dr. David Malka, d/b/a The Malka Institute of Neurosciences and Disease's (“the Malka Institute”) motion to dismiss. Though the circuit court's nonfinal order acted to dismiss the complaint against Dr. Gu and the Malka Institute without prejudice, the order effectively became a final order dismissing the case with prejudice due to the passage of the statute of limitations. We find the circuit court erred by summarily ruling on the sufficiency of Mr. Holden's notice of intent and supporting affidavit without determining whether Mr. Holden complied with the reasonable presuit investigation requirements of chapter 766, and therefore we reverse.

In a letter dated August 10, 2007, Mr. Holden served Dr. Gu a notice of intent to initiate a medical malpractice action against him pursuant to sections 766.106(2) and 766.203(2), Florida Statutes (2006). The notice was based on treatment Mr. Holden received in the hospital emergency department at Morton Plant North Bay Hospital on November 22, 2006, after he had suffered an acute ischemic stroke at his workplace. Mr. Holden alleged Dr. Donna Schutzman Bober, who was the attending emergency department physician, and Dr. Gu were negligent and breached the applicable standard of care by failing to timely administer a tissue plasminogen activator to Mr. Holden.

In support of the notice of intent and because the treatment in question involved emergency medical services in a hospital emergency department, ¹ Mr. Holden attached a corroborating affidavit from Dr. Frank J. Baker, II, a practicing board-certified emergency department physician retained as a medical expert to review the emergency department records. Dr. Baker, through his affidavit, opined that that there were reasonable grounds to believe that Dr. Bober, Dr. Gu, and Morton Plant North Bay Hospital were negligent in Mr. Holden's treatment. Mr. Holden subsequently discovered during presuit discovery that Dr. Gu was actually a neurologist employed by the Malka Institute who was not present in the emergency department at the time of the incident. Rather, Dr. Bober had consulted with Dr. Gu on the telephone about Mr. Holden's medical condition.

Following the denial of Mr. Holden's notice of intent by all of the potential defendants, Mr. Holden filed a complaint in June 2008 alleging, in part, negligence against Dr. Gu and vicarious liability against the Malka Institute. In response, Dr. Gu and the Malka Institute filed a motion to dismiss alleging Dr. Baker's affidavit was facially insufficient because he incorrectly identified Dr. Gu as an emergency department physician, not a neurologist and only provided the applicable standard of care for emergency department physicians. Dr. Gu and the Malka Institute argued that under the “four corners of [Mr. Holden's] complaint,” Mr. Holden failed to corroborate that reasonable grounds existed for a claim against Dr. Gu as required by section 766.203(2) before issuing the notice of intent. The circuit court agreed and, without conducting a hearing into the reasonableness of Mr. Holden's presuit investigation, entered an order on August 5, 2009, granting the parties' motion to dismiss without prejudice.

I. This case is properly reviewed as an appeal, not a petition for writ of certiorari

We note at the onset that although the circuit court's order acted to dismiss the complaint against Dr. Gu and the Malka Institute without prejudice, the order was entered in July 2009, almost three years from the date of Mr. Holden's injury. However, because the statute of limitations for a medical malpractice action is two years, the period for Mr. Holden to timely refile his complaint had passed.² See § 95.11(4)(b). Thus the order effectively became a dismissal with prejudice barring Mr. Holden from refiling his action. See, e.g., Faber v. Wrobel, 673 So.2d 871, 872 (Fla. 2d DCA 1995) (noting the granting of a motion to dismiss for failing to comply with the reasonable investigation requirements of sections 766.201 to 766.212 was with prejudice because the statute of limitations had passed); see also Delgado v. J. Byrons, Inc., 877 So.2d 822, 823 (Fla. 4th DCA 2004) (“Although the phrase ‘without prejudice’ ordinarily indicates that an order is not final, there is one circumstance in which [a] dismissal without prejudice is final. If the effect of the order is to dismiss the case ... the language ‘without prejudice’ would not affect the finality of the order.” (alteration in original) (quoting Philip J. Padovano Florida Appellate Practice § 21.2 (2d ed. 1997))); Martinez v. Collier County Pub. Sch., 804 So.2d 559, 560 (Fla. 1st DCA 2002) (“Dismissal without prejudice is final if its effect is to bring an end to judicial labor.”).³ Because the passage of the statute of limitations effectively ended the judicial labor in this case, we treat the circuit court's order as a final, appealable order.

II. An explanation of the statutory requirements to initiate a medical malpractice action

The purpose of a presuit investigation under section 766.203(2) is to allow a claimant to ascertain in good faith whether there were reasonable grounds to believe that a defendant was negligent and if such negligence resulted in injury to the claimant. The claimant must corroborate the reasonable grounds to initiate and support a medical malpractice action by submitting a verified written medical expert opinion from a medical expert as defined under section 766.202(6). § 766.203(2). Section 766.202(6), in turn, defines a “medical expert” as someone who meets the requirements of an expert witness as set forth under section 766.102.

After the presuit investigation is completed and before a complaint alleging medical negligence is filed, a claimant is required to notify each prospective defendant of his or her intent to initiate a medical negligence action. § 766.106(2)(a). However, a prospective defendant “may file a motion in the circuit court requesting the court to determine whether the opposing party's claim ... rests on a reasonable basis.” § 766.206(1). The circuit court must then determine whether the opposing party complied with the reasonable investigation requirements of sections 766.201 to 766.212, which includes reviewing the claim and the verified medical expert opinion. § 766.206(2). If the court finds that the notice of intent was not in compliance, then it shall dismiss the claim. Id.

These presuit requirements are designed to “alleviate the high cost of medical negligence claims through early determination and prompt resolution of claims.” Weinstock v. Groth, 629 So.2d 835, 838 (Fla.1993). Nonetheless, “the medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict a Florida citizen's constitutionally guaranteed access to the courts.” Kukral v. Mekras, 679 So.2d 278, 284 (Fla.1996); see also Weinstock, 629 So.2d at 838 (“[T]he purpose of the chapter 766 presuit requirements is ... not to deny access to the courts to plaintiffs....”). Further, the statutory requirements are not to be used by prospective defendants as preemptive sword against a plaintiff. See Michael v. Med. Staffing Network, Inc., 947 So.2d 614, 619 (Fla. 3d DCA 2007).

III. The applicable standard of review is de novo

In order to adhere to the policy enunciated behind the presuit notice requirements, we must review the sufficiency of Dr. Baker's qualifications and his corroborating affidavit to determine if it complies with the statutory requirements of chapter 766. See Jeffrey A. Hunt, D.O., P.A. v. Huppman, 28 So.3d 989, 992 (Fla. 2d DCA 2010). Because this case concerns the trial court's disposition of a motion to dismiss, our standard of review is de novo. See Univ. of Miami v. Wilson, 948 So.2d 774, 776 (Fla. 3d DCA 2006); Apostolico v. Orlando Reg'l Health Care Sys., Inc., 871 So.2d 283, 286 (Fla. 5th DCA 2004).

As we discussed above, the circuit court's consideration on a motion challenging a claimant's compliance with the presuit investigation requirements in a medical malpractice action requires a determination of whether the claim rests on a reasonable basis and whether the claimant complies with the reasonable investigation requirements of sections 766.201 to 766.212. § 766.206(1), (2). Yet, because the circuit court is reviewing a pleading challenging the reasonableness of a presuit investigation in the context of a motion to dismiss, 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. See, e.g., Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 (Fla. 4th DCA 2005) (“When a trial court is determining if a plaintiff has made a ‘reasonable showing’ under section 768.72 for a recovery of punitive damages, it is similar to determining whether a complaint states a cause of action, or the record supports a summary judgment, both of which are reviewed de novo.”); ...