Kukral v. Mekras
| Citation | 679 So.2d 278 |
| Decision Date | 13 June 1996 |
| Docket Number | No. 85099,85099 |
| Court | United States State Supreme Court of Florida |
| Parties | 21 Fla. L. Weekly S251 Charles KUKRAL and Milly Kukral, Petitioners, v. George D. MEKRAS, M.D.; Miami Urology Institute, Inc., and Dr. John T. McDonald Foundation d/b/a Doctors' Hospital, Respondents. |
Joe N. Unger of the Law Offices of Joe N. Unger, P.A., Miami; and the Law Offices of Richard L. Katz, Coral Gables, for Petitioners.
Bambi G. Blum of Hicks, Anderson & Blum, P.A., Miami; George, Hartz, Lundeen, Flagg & Fulmer, P.A., Coral Gables; and Gail Leverett Parenti of Parenti, Falk, Waas & Frazier, Coral Gables, for Respondents.
We have for review Kukral v. Mekras, 647 So.2d 849 (Fla. 3d DCA 1994), which expressly and directly conflicts with the opinion in Stebilla v. Mussallem, 595 So.2d 136 (Fla. 5th DCA), review denied, 604 So.2d 487 (Fla.1992). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash Kukral and approve Stebilla. For the reasons expressed below, we hold that the trial court erred in dismissing plaintiffs' medical malpractice claim for their alleged failure to comply with the presuit investigation requirements of section 766.203(2), Florida Statutes (1991).
The essential facts are set out in the district court opinion:
On February 21, 1992, the plaintiffs served on Doctor's Hospital and Dr. George D. Mekras notices of intent to initiate litigation for medical malpractice. The notices stated that during a medical procedure to remove genital warts undiluted acid was applied to the plaintiff's penis resulting in serious burns. These notices of intent were not accompanied by a verified written medical expert opinion when they were mailed. Miami Urology Institute, Inc. [MUI], Dr. Mekras' employer, alleges that it was not individually served with a notice of intent and that the notice sent to Dr. Mekras did not indicate that MUI was a prospective defendant.
Doctor's Hospital sent a denial of the claim to the plaintiffs accompanied by an affidavit of an expert. On August 14, 1992, the plaintiffs sent out an unverified medical expert opinion corroborating the claim of medical negligence. On September 3, 1992, the plaintiffs sent out a verification of medical expert opinion alleging negligence. Then, on October 9, 1992, the plaintiffs filed their complaint against Doctor's Hospital, Dr. Mekras, and MUI [collectively referred to as defendants] for medical malpractice. After the matter had been set for trial, the defendants filed a motion to determine whether the plaintiffs had properly complied with the statutory pre-suit screening procedures. After hearings, the trial court entered the appealed order dismissing the plaintiffs' case for failure to comply with the mandatory pre-suit screening procedures.
Kukral, 647 So.2d at 850. The effect of the order of dismissal was to permanently bar the plaintiffs' claim since the statutory limitations period for filing claims had then expired. 1
The Third District affirmed the order of dismissal by a two-to-one vote, and reasoned as follows:
It is the plaintiffs failure to comply with their duty to conduct an investigation as defined by section 766.202(4), Florida Statutes (1991), that distinguishes this case from the cases relied on by plaintiffs. In Stebilla v. Mussallem, 595 So.2d 136 (Fla. 5th DCA), rev. denied, 604 So.2d 487 (Fla.1992) and Ragoonanan v. Assocs. in Obstetrics & Gynecology, 619 So.2d 482 (Fla. 2d DCA 1993), and in Suarez v. St. Joseph's Hosp., Inc., 634 So.2d 217 (Fla. 2d DCA 1994), the plaintiffs obtained the necessary medical opinion before filing their notices.
Under section 766.206, Florida Statutes (1991), since no reasonable investigation was conducted, the plaintiffs' claim was properly dismissed.
647 So.2d at 850-51. Judge Jorgenson dissented and reasoned:
The Florida Supreme Court has emphasized that "when possible the presuit notice and screening statute should be construed Plaintiff provided a written corroborating medical expert opinion within the period of the statute of limitations, and then verified that opinion within the limitations period; he complied with the presuit notice requirements and should not be subject to the ultimate sanction--dismissal of his claim. See Suarez v. St. Joseph's Hosp., 634 So.2d 217 (Fla. 2d DCA March 23, 1994) (); Stein v. Feingold, 629 So.2d 998 (Fla. 3d DCA 1993) (). The judicial gloss that the majority applies to section 766.202(4) controls only when the plaintiff has failed to satisfy the presuit requirements prior to the end of the limitations period. It is then, and only then, that the malpractice complaint may be dismissed for failure to comply with the statute.
in a manner that favors access to the courts." Patry v. Capps, 633 So.2d 9, 13 (Fla.1994); see also Weinstock v. Groth, 629 So.2d 835, 838 (Fla.1993) () (citations omitted). This is particularly so when, as here, defendants have not been prejudiced by plaintiff's actions. Patry, 633 So.2d at 13.
Id. at 851-52. On rehearing en banc, the district court, by a vote of six to four, adopted the majority's opinion as the opinion of the en banc court. Id. at 852-53.
Chapter 766, Florida Statutes (1995), sets out a complex presuit investigation procedure that both the claimant and defendant must follow before a medical negligence claim may be brought in court. In Williams v. Campagnulo, 588 So.2d 982 (Fla.1991), we upheld the constitutionality of the notice requirement of section 768.57(2), Florida Statutes (1985), which is currently found at section 766.106(2), Florida Statutes (1995), and noted: "The statute was intended to address a legitimate legislative policy decision relating to medical malpractice and established a process intended to promote the settlement of meritorious claims at an early stage without the necessity of a full adversarial proceeding." Williams, 588 So.2d at 983.
The first step in this statutory scheme requires a claimant to determine whether reasonable grounds exist to believe that someone acted negligently in the claimant's care or treatment and that this negligence caused the claimant's injury. Section 766.104(1) provides that no medical negligence action shall be filed "unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant." It also provides that "good faith" may be shown if the claimant or his counsel has received a written opinion of an expert "that there appears to be evidence of medical negligence." Section 766.104(2) provides for a ninety-day extension of the statute of limitations "to allow the reasonable investigation required by subsection (1)."
Section 766.201(2)(a)1. also provides that a reasonable investigation should precede the filing of malpractice claims and defenses "in order to eliminate frivolous claims and defenses." Section 766.202(4) defines "investigation" to mean "that an attorney has reviewed the case against each and every potential defendant and has consulted with a medical expert and has obtained a written opinion from said expert." After completing the presuit investigation pursuant to section 766.203 and prior to filing a claim for medical malpractice, the claimant must notify each prospective defendant "of intent to initiate litigation for medical malpractice." Id. § 766.106(2). Section 766.203(2) requires that the claim be corroborated by a "verified written medical expert opinion" which must be furnished to the defendant.
Upon receipt of the notice of intent, the defendant has ninety days to conduct its own presuit investigation. Id. § 766.203(3). During this ninety-day period the claimant may not file suit. Id. § 766.106(3)(a). Before the defendant may deny the claimant's reasonable grounds for finding medical negligence, the defendant must provide the claimant with Sections 766.106(5)-(9) and 766.204-.205 provide for informal presuit discovery after a notice of intent is issued, and require each party to provide the other with "reasonable access to information within its possession or control in order to facilitate evaluation of the claim." § 766.205(1), Fla.Stat. (1995). The unreasonable failure of any party to comply with informal discovery may justify dismissal of that party's claims or defenses. Id. § 766.106(3)(a).
a verified written medical expert opinion corroborating a lack of reasonable grounds to show a negligent injury. Id. § 766.203(3)(b).
After completion of presuit investigation and any informal discovery, and even before the actual filing of a medical negligence claim, "any party may file a motion in the circuit court requesting the court to determine whether the opposing party's claim or denial rests on a reasonable basis." Id. § 766.206(1). 2 If the court finds the claimant's notice of intent to initiate litigation is not in compliance with the reasonable investigation requirements of sections 766.201-.212, the court may dismiss the claim or impose other sanctions, including costs and attorney's fees. Id. § 766.206(2). Section 766.206(3) is a similar provision addressing the defendant's non-compliance with the statute, and providing for appropriate sanctions such as the striking of the defendant's "response" and the assessment of costs and fees.
In Stebilla v. Mussallem, 595 So.2d 136 (Fla. 5th DCA 1992), the Fifth District reversed a trial court's dismissal of a medical malpractice action and held that the plaintiffs' failure to provide a corroborating medical expert opinion...
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