Archer v. Maddux
| Decision Date | 14 November 1994 |
| Docket Number | No. 93-689,93-689 |
| Citation | 645 So.2d 544 |
| Parties | 19 Fla. L. Weekly D2423 Bonnie ARCHER, Appellant, v. Ronald A. MADDUX, M.D., and Ronald A. Maddux, M.D., P.A., Appellees. |
| Court | Florida District Court of Appeals |
Richard P. Warfield of Warfield & Associates, P.A., Pensacola, for appellant.
Danny L. Kepner and John E. Wimberly, Jr., of Shell, Fleming, Davis & Menge, Pensacola, for appellees.
Bonnie Archer appeals the judgment dismissing her medical malpractice complaint for failure to furnish prospective (later actual) defendants a corroborating, verified medical expert opinion, until well after the statute of limitations had run, and until after the deadline the circuit judge had set. Despite the timely filing of her notice of intent to initiate litigation and of the complaint itself, we affirm.
Ms. Archer filed a notice of intent to initiate litigation pro se on December 21, 1989, a little less than a year before the two-year statute of limitations ran, section 95.11(4)(b), Florida Statutes (1993), and more than ninety days before the original medical malpractice complaint was filed (by Archer's counsel) on November 8, 1990. The complaint alleged that Dr. Maddux had permitted a portion of a tube to remain inside Ms. Archer after surgery [T]he defendant negligently performed his professional services by permitting a foreign object to-wit; a portion of a tube, to remain in the incision after the operation was performed, and by failing to properly manage and control the follow up care given to the plaintiff which continued through to-wit: November 18, 1988, at or about which time the plaintiff learned that the cause of her continuing problems was the fact that the foregoing body was left in the incision made by the said defendant.
The complaint went on to allege that Ms. Archer suffered permanent physical and mental injury as a result. But the complaint did not allege (because it could not) that any corroborating, verified medical expert opinion was provided to the defendants, either along with the notice of intent to initiate litigation, or at any other time before the two years allowed by the statute of limitations had run.
Maddux filed a motion to dismiss the original complaint on grounds, inter alia, that no verified medical expert opinion had been furnished. On January 14, 1991, before the motion to dismiss was ruled on, Archer filed an amended complaint. On February 21, 1991, the trial court dismissed the complaint without prejudice, citing the lack of a verified medical expert opinion.
On July 16, 1992, the trial court entered its "Order Denying the Defendants' Motions to Dismiss for Failure to Prosecute and for a Protective Order," and directed Archer to file a second amended complaint within ten days. With entry of this order, any uncertainty concerning whether the order of February 21, 1991 was intended to dismiss the (first) amended complaint along with the original complaint was laid to rest. On August 24, 1992, Archer filed a second amended complaint alleging compliance with the notice requirements of section 766.106(2), and attached both a corroborating, verified medical expert opinion and an amended notice of intent. This appeal is taken from the judgment dismissing the second amended complaint.
As part of a statutory scheme in place since earlier the same year Ms. Archer alleged she first went to Dr. Maddux, certain requirements pertain, with regard to "[p]resuit investigation of medical negligence claims and defenses by prospective parties":
(2) Prior to issuing notification of intent to initiate medical malpractice litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:
(a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and
(b) Such negligence resulted in injury to the claimant.
Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant's submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(5), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.
(3) Prior to issuing its response to the claimant's notice of intent to initiate litigation, during the time period for response authorized pursuant to s. 766.106, the defendant or the defendant's insurer or self-insurer shall conduct an investigation to ascertain whether there are reasonable grounds to believe that:
(a) The defendant was negligent in the care or treatment of the claimant; and
(b) Such negligence resulted in injury to the claimant.
Corroboration of lack of reasonable grounds for medical negligence litigation shall be provided with any response rejecting the claim by the defendant's submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(5), at the time the response rejecting the claim is mailed, which statement shall corroborate reasonable grounds for lack of negligent injury sufficient to support the response denying negligent injury.
Sec. 766.203, Fla.Stat. (1993). These provisions were enacted to establish "a process intended to promote the settlement of meritorious claims at an early stage without the necessity of a full adversarial proceeding." Williams v. Campagnulo, 588 So.2d 982, 983 (Fla.1991); see Ingersoll v. Hoffman, 589 So.2d 223 (Fla.1991); Duffy v. Brooker, 614 So.2d 539 (Fla. 1st DCA 1993) review denied sub nom. Physicians Protective Trust Fund v. Brooker, 624 So.2d 267 (Fla.1993); Chandler v. Novak, 596 So.2d 749 (Fla. 3d DCA 1992); Stebilla v. Mussallem, 595 So.2d 136 (Fla. 5th DCA 1992), review denied, Mussallem v. Stebilla, 604 So.2d 487 (Fla.1992).
The medical negligence statutory "provisions were not intended to ... deny parties access to the court on the basis of technicalities." Wilkinson v. Golden, 630 So.2d 1238, 1239 (Fla. 2d DCA 1994), citing Ragoonanan v. Associates in Obstetrics, 619 So.2d 482, 484 (Fla. 2d DCA 1993); see Patry v. Capps, 633 So.2d 9 (Fla.1994). On the other hand, the Ingersoll, 589 So.2d at 224. Another important purpose is to dispose of claims devoid of merit without the necessity of a full adversarial proceeding.
Ms. Archer first argues that the (initial) omission of a corroborating medical opinion was immaterial because the complaint alleged sufficient facts to give rise to a presumption of negligence under section 766.102(4), Florida Statutes (1993), which provides:
The existence of a medical injury shall not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider. However,...
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