Brundage v. Evans

• Decision Date: 18 March 2020
• Docket Number: Case No. 2D19-1441
• Citation: 295 So.3d 300
• Parties: Timothy N. BRUNDAGE, M.D., and Bay Sound Inpatient Services, LLC, Petitioners, v. David EVANS, as personal representative of the Estate of Etta Evans, deceased, and Galen of Florida, Inc. d/b/a St. Petersburg General Hospital, Respondents.
• Court: Florida District Court of Appeals

295 So.3d 300

Timothy N. BRUNDAGE, M.D., and Bay Sound Inpatient Services, LLC, Petitioners,

v.David EVANS, as personal representative of the Estate of Etta Evans, deceased, and Galen of Florida, Inc. d/b/a St. Petersburg General Hospital, Respondents.

Case No. 2D19-1441

District Court of Appeal of Florida, Second District.

Opinion filed March 18, 2020

Rehearing Denied April 30, 2020

Ronald E. Bush and Jessica N. Cochran of Bush Graziano Rice & Platter, P.A., Tampa, for Petitioners.

Raymond T. Elligett, Jr., and Amy S. Farrior of Buell & Elligett, P.A., Tampa; Frank F. Fernandez, III, and Jennifer Gentry Fernandez of The Fernandez Firm, Tampa, for Respondent David Evans.

No appearance for Respondent Galen of Florida, Inc.

ATKINSON, Judge.

Timothy N. Brundage, M.D. (Dr. Brundage) and Bay Sound Inpatient Services, LLC (Bay Sound) (collectively Defendants) petition this court for a writ of certiorari to review the trial court's nonfinal order denying their motion to dismiss the complaint filed by David Evans, as personal representative of the Estate of Etta Evans (Plaintiff) for failing to follow the medical malpractice presuit screening requirements of chapter 766. We grant the petition.

On May 1, 2014, Etta Evans was admitted to St. Petersburg General Hospital (the Hospital) to undergo elective colostomy

reversal surgery. Dr. Brundage examined her. The next day, Mrs. Evans underwent a second surgery after a CT scan showed a severe abdominal infection. She never recovered from the infection and ultimately died on June 26, 2014.

On November 20, 2014, Plaintiff filed a petition for an automatic extension to the statute of limitations pursuant to section 766.104(2), Florida Statutes (2014). Plaintiff also sent a written request to the Hospital to provide all medical records regarding Mrs. Evans, which stated the following in pertinent part:

Pursuant to Section 766.204(1), Florida Statutes, within ten (10) business days, we hereby request that you please furnish our office with complete single sided copies of any and all inpatient and outpatient medical records ....

The law applicable to this matter requires that copies of your records be provided at a reasonable charge within ten (10) business days of this request. Failure to provide the records within ten (10) days shall constitute evidence of your failure to comply with the good faith discovery requirements of the Florida Statutes, thereby waiving the requirement of written medical corroboration.

The Hospital never responded. Plaintiff sent additional written requests in December 2014 and September 2015. On October 7, 2015, the Hospital provided Plaintiff a CD containing some but not all of the medical records. On February 15, 2016, Plaintiff sent a notice of intent to initiate litigation to the Hospital. On April 4, 2016, Plaintiff received all of Mrs. Evans' medical records from the Hospital.

On September 23, 2016, Plaintiff sent a notice of intent to initiate litigation to Dr. Brundage (that he received on October 6, 2016), which stated the following in pertinent part:

WAIVER OF REQUIREMENT FOR CORROBORATING AFFIDAVIT

On November 20, 2014, request was made to the St. Petersburg General Hospital [where] you worked ... to provide all records and billing regarding Etta Evans. The records were due in our office on or before December 4, 2014. St. Petersburg General Hospital failed to timely provide medical records within 10 days, as required by law. ... Accordingly, pursuant to Section 766.204(2), Florida Statute[s], the requirement of a corroborating affidavit for this Notice of Intent to Initiate Litigation is waived.

§ 766.106(6) INFORMAL DISCOVERY REQUESTS

Section 766.106(6), Florida Statutes, provides for informal discovery of documents, unsworn statements of any prospective party and written questions to any prospective party. In that regard, below please find our informal discovery requests. We would ask that you timely respond[ ] as required by Florida law.

....

3. Please provide a complete copy of all medical records, written notes, x-rays, bills, photographs and any other pertinent document or report concerning your treatment of Etta Evans.

That same day, Plaintiff filed a complaint against Dr. Brundage and others for medical negligence. The complaint alleged that Bay Sound was vicariously liable for Dr. Brundage's negligence as his employer. On September 28, 2016, Plaintiff obtained an expert opinion from Dr. Kenneth Scissors that there appeared to be evidence of medical negligence but failed to provide it to Dr. Brundage.

On November 3, 2016, counsel for Dr. Brundage advised Plaintiff that the notice of intent was deficient because it failed to include the expert opinion. On November 15, 2016, counsel for Dr. Brundage responded to the informal discovery requests, indicating that Dr. Brundage was not in possession of the medical records. Thereafter, Defendants moved to dismiss the complaint for failing to provide the expert opinion prior to the expiration of the statute of limitations. On August 23, 2017, at a hearing on the motion to dismiss, counsel for Plaintiff provided the expert opinion of Dr. Scissors to Defendants. Counsel for Plaintiff claimed that he was "under the impression" that Defendants "had this affidavit."

The trial court denied the motion to dismiss:

The Court next finds that although [Plaintiff] improperly claims, in both his response and within the body of his notice of intent to litigate served on [Defendants], that the medical expert affidavit was previously waived by [the Hospital] even as the requirement applies to [Defendants], the Court finds that this requirement was eventually waived. ... However, the Court finds that within [Plaintiff's] notice to [Defendants] he makes a request for medical records pursuant to Florida Statutes § 766.106(6)(b)(2) which refers back to § 766.204. As such, the Court finds [Plaintiff] properly filed notice and then requested the records. ... The Court further finds that no response was sent regarding this request until November 15, 2016, well beyond the 10 business days contemplated in Florida Statutes § 766.204 and also beyond the 20 days contemplated in § 766.106, even if calculated from the date of receipt rather than the date of mailing of the notice. As such, the Court finds that this constituted a waiver as discussed in § 766.204(2). Accordingly, the Court further finds that it then becomes irrelevant that [Plaintiff] filed a medical affidavit beyond the expiration of the statute of limitations because there was no defect for [Plaintiff] to cure.

To obtain a writ of certiorari, the "petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal." Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 1995). We have jurisdiction because the deficiencies in the presuit notice requirements asserted by Defendants in this case constitute the type of irreparable harm for which certiorari lies. See Fassy v. Crowley, 884 So. 2d 359, 363 (Fla. 2d DCA 2004) ("Certiorari jurisdiction may lie when chapter 766 presuit requirements are at issue."); Parkway, 658 So. 2d at 649 ("Such statutes cannot be meaningfully enforced postjudgment because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance."); see also Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012) (explaining that a court must first examine the second and third prongs of the test for certiorari, often referred to as "irreparable harm," to determine whether it has jurisdiction to hear the petition).

Plaintiff contends, as the trial court concluded, that Dr. Brundage's subsequent failure to timely respond to an informal discovery request under section 766.106 constituted a waiver of the requirement in section 766.204 to mail the notice of intent with an expert opinion that Plaintiff had already failed to provide. Neither logic nor the language of the relevant statutes supports that conclusion. A defendant's failure to provide informal discovery requested after the complaint has been filed cannot cure the omission of a prerequisite to maintaining the cause of action in the first place. While it is possible to conceive of a statutory scheme that does allow for retroactive waiver of a condition precedent to filing suit based on a subsequent discovery violation, it is not chapter 766. "Chapter 766, Florida Statutes ... 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." See Kukral v. Mekras, 679 So. 2d 278, 280 (Fla. 1996). Importantly, the procedures set forth in chapter 766 are meticulous in their chronology.

First, before filing an action of medical negligence, an attorney must make "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." § 766.104(1). "Investigation" means that an attorney has "consulted with a medical expert and has obtained a written opinion from said expert." § 766.202(5). A claimant or his or her counsel may show "good faith" by obtaining a medical expert's written opinion "that there appears to be evidence of medical negligence." § 766.104(1).

After completing the presuit investigation and prior to filing a complaint for medical negligence, a claimant must give notice to each prospective defendant "of intent to initiate litigation for medical negligence." § 766.106(2)(a). This notice of intent must contain "a verified written medical expert opinion" that reasonable grounds exist "to support the claim of medical negligence." § 766.203(2). After mailing the notice of intent, a claimant may not file suit for ninety days, which gives the prospective defendant...