Citron v. Shell

• Decision Date: 26 March 1997
• Docket Number: No. 96-3705,96-3705
• Citation: 689 So.2d 1288
• Parties: 22 Fla. L. Weekly D776 Carl CITRON, M.D., Petitioner, v. Carl SHELL, Sr., Respondent.
• Court: Florida District Court of Appeals

Page 1288

689 So.2d 1288

22 Fla. L. Weekly D776

Carl CITRON, M.D., Petitioner, v. Carl SHELL, Sr., Respondent.

No. 96-3705.

District Court of Appeal of Florida Fourth District.

March 26, 1997.

Marlene S. Reiss of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for petitioner.

Carl Shell, Sr., Pembroke Pines, pro se.

FARMER, Judge.

We deny certiorari seeking to quash an order that refused to dismiss this medical malpractice action. Although we conclude that plaintiff failed to comply with the applicable pre-suit screening requirements for such actions, we are unable to agree that it was a departure from the essential requirements of law for the trial court to refuse to dismiss the claim with prejudice.

The plaintiff is not represented by counsel. He has sued a medical doctor for malpractice. His hand-drawn amended complaint alleges, in turn, that the doctor, a pathologist, "made errors" in performing tests, in describing a specimen, in reporting test results, in diagnosis, and finally that the doctor never performed any of the purported laboratory tests. He also alleges that the doctor "can not and has not provide[d] actual proof as requested by plaintiffs" that he is duly licensed to practice medicine in the state of Florida. Summing up, his pleading states:

"Plaintiffs ¹ certify a good-faith belief that grounds exist for an action against the defendant Carl Citron, M.D., based on RES IPSA loquitur doctrine, and pre-suit investigation by plaintiffs."

. . . . .

"Cause of action is medical malpractice brought on by negligence, fraud of defendant Carl Citron acts as described in the amended complaint."

Upon motion of the doctor, the trial court dismissed his original complaint with leave to amend. At some point around the time of filing the amended complaint, plaintiff sent the doctor a handwritten notice of intent to initiate malpractice litigation. Attached to the document was a billing record (apparently from plaintiff's employer) relating to a tissue mass from a throat, as well as a surgical pathology report from the doctor containing a description of a specimen and a diagnosis. The doctor moved to dismiss the amended complaint on the grounds that it failed to allege or show compliance with the pre-suit screening requirements, including corroboration by a medical expert. The trial court denied dismissal and ordered the doctor to answer the complaint. The doctor then sought review of that order by petition for common law certiorari in this court.

We first consider plaintiff's argument that common law certiorari is not available to review an order denying dismissal of a complaint in a medical malpractice action where plaintiff has failed to comply with the statutory pre-suit screening and corroboration requirements. Primarily, plaintiff contends that the doctor has failed to demonstrate irreparable harm in having to answer and defend the complaint, and that the required corroborating medical opinion is not discoverable. In Pearlstein v. Malunney, 500 So.2d 585 (Fla. 2d DCA 1986), rev. denied, 511 So.2d 299 (Fla.1987), the court faced the same contention as to the lack of irreparable harm in these circumstances. The court held:

"Conceivably, if respondents were to prevail in this proceeding, they might prevail at trial and obtain a judgment against petitioners. On appeal if that judgment was determined to be the product of a fundamentally fair trial, an argument could be made that no useful purpose would be served in remanding the case because cost-saving pretrial procedures were not followed. Therefore, for petitioners to receive the benefits conferred upon them (and, in the estimation of the legislature, upon the citizens of Florida) by the statute, it is necessary and appropriate for us to intervene at this juncture. We recognize, of course, that the mere expense of an unnecessary trial ordinarily would not warrant our issuance of a writ of certiorari. Whiteside v. Johnson, 351 So.2d 759 (Fla. 2d DCA 1977). This rule of law, however, generally comes into play where the error complained of can be remedied by direct appeal. Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla. 2d DCA 1973). As we have said, relief by direct appeal would be no relief at all in this case."

500 So.2d at 587; see also NME Hospitals Inc. v. Azzariti, 573 So.2d 173 (Fla. 2d DCA 1991); Miami Physical Therapy Assoc. v. Savage, 632 So.2d 114 (Fla. 3d DCA 1994). We agree with the analysis of these cases and hold that common law certiorari may be available to review orders denying dismissal of medical malpractice complaints where the petitioner is able to show a departure from the essential requirements of law relating to the failure to comply with the statutory pre-suit screening requirements.

We also reject plaintiff's argument that, as regards the availability of certiorari review, the corroborating opinion from a medical expert is not discoverable and thus, impliedly, the defendant is not irreparably harmed by the failure to furnish such an opinion. He apparently bases this argument on section 766.106(5), which provides that work product generated during the pre-screening process is not discoverable. He fails, however, to consider section 766.203(2), which provides that:

"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."

We understand the work product protection in section 766.106 not to apply to the corroborating opinion requirement in section 766.203. Accordingly, we conclude that defendant has satisfied the requirement of irreparable harm necessary to our common law certiorari jurisdiction. See Bared & Co. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996).

We now turn to the issue whether the doctor has shown a departure from the essential requirements of law in the trial court's refusal to dismiss the action on account of plaintiff's failure to produce a corroborating medical expert opinion. Certainly, the text of section 766.203 makes the corroborating medical opinion a condition precedent to the commencement or maintenance of an action alleging medical malpractice. The statutory text states that the opinion "shall be provided ... at the time the notice of intent to initiate litigation is mailed." [e.s.] Thus, the statute clearly requires that the corroborating opinion be furnished before any litigation is actually commenced.

The purpose of this particular statutory condition precedent to suit is to winnow obviously meritless claims from those with arguable merit. See Williams v. Campagnulo, 588 So.2d 982, 983 (Fla.1991) (statute established process "intended to promote the settlement of meritorious claims at an early stage without the necessity of a full adversarial proceeding."). The essence of a medical malpractice claim lies in a breach of the prevailing standard of care applicable to the health care provider sued, in this instance a physician. ² Thus, to prove his claim, plaintiff must produce evidence from someone knowledgeable about the standard of care to show that the physician breached the standard. Requiring a corroborating opinion from a medical expert has a reasonable relationship to the stated goal of reducing medical malpractice litigation, because it prevents a non-expert claimant from navely attempting to allege as malpractice something that no one knowledgeable about the standard believes is true.

At the same time, if the courts were to overlook the failure of a claimant to provide such corroboration, it would necessarily destroy the legislative attempt to reduce social and insurance costs incurred in baseless medical malpractice litigation. It would also defeat the right of health care providers under this statute not to be subjected to such claims unless a qualified medical expert agrees that there has been a departure from the applicable standard of care.

Nonetheless, in construing these statutory conditions precedent to maintaining a medical malpractice action, the supreme court has narrowly read them in light of the rule against limiting access to the courts. Weinstock v. Groth, 629 So.2d 835, 838 (Fla.1993) ("This narrow construction of the chapter 766 presuit notice requirement is in accord with the rule that restrictions on access to the courts must be construed in a manner that favors access."). That guiding principle has L.Ed.2d the court to construe chapter 766 pre-suit requirements in such a way that the failure to comply with them may not result in a final dismissal of the action unless it is clear that the claimant could not possibly cure the defect and still maintain the action in compliance with the statutes.

For example, in Hospital Corp. of America v. Lindberg, 571 So.2d 446 (Fla.1990), the claimant filed an action for medical malpractice within the period of the statute of limitations. He did not send a prior notice of intent to sue, but instead served it with the complaint. After the limitations period had expired, the defendants (providers) moved to dismiss the action on the grounds that the claimants had failed to comply with the statutory requirements. On appeal of the dismissal to this court, we held that the failure was not fatal to the action and directed the trial court to allow the claimants to amend their complaint to demonstrate compliance. The supreme court approved our decision, saying:

"We therefore hold that, in medical malpractice actions, if a presuit notice is served at the same time as a complaint is filed, the complaint is subject to dismissal with leave to amend. The plaintiff may subsequently file an amended complaint asserting compliance with the presuit notice and screening requirements of section 768.57 and the...