Cohen v. Dauphinee

• Citation: 739 So.2d 68
• Decision Date: 15 April 1999
• Docket Number: No. 91,239.,91,239.
• Parties: Michael J. COHEN, M.D., et al., Petitioners, v. Michael DAUPHINEE, etc., Respondent.
• Court: United States State Supreme Court of Florida

739 So.2d 68

Michael J. COHEN, M.D., et al., Petitioners, v. Michael DAUPHINEE, etc., Respondent.

No. 91,239.

Supreme Court of Florida.

April 15, 1999.

Rehearing Denied August 24, 1999.

Jennings L. Hurt III and Richard B. Mangan, Jr. of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, Florida, and Arthur J. England, Jr. and Brenda K. Supple of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, Florida, for Petitioners.

Terry L. McCollough and William G. Osborne, Orlando, Florida, for Respondent.

Jack W. Shaw, Jr. of Brown, Obringer, Shaw, Beardsley & DeCandio, Jacksonville, Florida, for Florida Defense Lawyers Association, Amicus Curiae.

Christopher L. Nuland, Jacksonville, Florida, for Florida Medical Association, Florida Surgeons Firm, Florida Society of Thoracic and Cardiovascular Surgeons, and Florida Society of Internal Medicine, Amici Curiae.

Edward S. Schwartz of the Law Offices of Philip M. Gerson, P.A., Miami, Florida, for the Academy of Florida Trial Lawyers, Amicus Curiae.

HARDING, C.J.

We have for review the decision in Dauphinee v. Wilstrup, 696 So.2d 388 (Fla. 5th DCA 1997), based upon conflict with the Fourth District Court of Appeal's opinion in Citron v. Shell, 689 So.2d 1288 (Fla. 4th DCA 1997). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.

This Court accepted jurisdiction to resolve the conflict between the Fifth District Court of Appeal's decision in the case below and the decision of the Fourth District Court in Citron on the issue of whether the presuit affidavit, required pursuant to sections 766.203(2) and (3), Florida Statutes (1995),¹ is protected by the provisions of section 766.106(5), Florida Statutes (1995).² We conclude that it does and, accordingly, approve the decision below.³

Facts

Michael Dauphinee, respondent, as the personal representative of the estate of Rosemarie P. Dauphinee, brought a medical malpractice action for wrongful death against several defendants, including Dr. Michael V. Cohen, Dr. Samuel Martin, and Vascular Specialists of Central Florida, Inc. (petitioners). See Dauphinee, 696 So.2d at 389

. Dauphinee alleged that Dr. Cohen was negligent in failing to timely diagnose an abdominal infection in Rosemarie, which resulted in toxic shock and sepsis. Dauphinee further alleged that Rosemarie died as a result of the misdiagnosis. See id.

At trial, the court allowed the defendants to impeach one of Dauphinee's experts, Dr. W. Stuart Battle, M.D., with the presuit affidavit he had prepared as part of Dauphinee's compliance with the presuit screening requirements of section 766.203(2). See id. The trial court directed a verdict for two of the defendants, and the jury found in favor of the remaining defendants, including Drs. Cohen and Martin (two of the three petitioners herein). See id.

On appeal, the Fifth District Court held that the trial court erred in allowing the defendants to use Dr. Battle's presuit affidavit for impeachment purposes, reasoning that the affidavit was protected by section 766.106(5). See id. at 389-90. The court reversed the final judgment and remanded the case for a new trial with respect to the defendants against whom Dr. Battle's testimony was directed, the petitioners here. See id. at 390.

In Citron, a pro se plaintiff sued his doctor for medical malpractice. In his pleadings, the plaintiff stated:

Plaintiffs 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 [sic] as described in the amended complaint.

689 So.2d at 1289.

On the defendant's motion, the trial court dismissed the plaintiff's complaint with leave to amend. Around the time that the plaintiff filed his amended complaint, he sent the doctor a handwritten notice of intent to initiate malpractice litigation. Attached to the document was a billing record and a copy of a surgical pathology report from the doctor. The doctor moved to dismiss the amended complaint on the grounds that it failed to comply with the presuit screening requirement of section 766.203(2). Specifically, the doctor asserted that the plaintiff had failed to provide the required verified written medical expert opinion corroborating reasonable grounds to initiate malpractice litigation. The trial court refused to dismiss the amended complaint and ordered the doctor to answer the complaint. The doctor then sought review of that order by a petition for a writ of certiorari. See Citron, 689 So.2d at 1289

.

In his response to the doctor's petition, the plaintiff argued that because the corroborating opinion from a medical expert is not discoverable,⁴ the doctor was not irreparably harmed by the plaintiff's failure to provide such an opinion. See 689 So.2d at 1289. In rejecting this argument, the court stated: "We understand the work product protection in section 766.106 not to apply to the corroborating opinion requirement in section 766.203." Id. at 1290.⁵

If, by that statement, the Fourth District Court was indicating only that section 766.106(5) does not defeat the requirement of providing an affidavit as a condition precedent to filing a medical malpractice action, then we agree. If, on the other hand, the Fourth District Court meant to say that the clear and unambiguous language of section 766.106(5) does not protect the corroborative affidavit itself from formal discovery and admissibility, then we must disagree. To the extent that Citron would allow an opposing party to use a corroborative affidavit to impeach witness testimony at trial, we disapprove that decision and hold that section 766.205(4) protects the corroborative affidavit from any use by the opposing party, including impeachment of the expert witness who prepared the affidavit.

Legislative History

The language of section 766.106(5) was first adopted by the legislature in 1985 as section 768.57. See Ch. 85-175, § 14, at 1199-1200, Laws of Fla. (codified at § 768.57, Fla. Stat. (1987)). Section 768.57 required a claimant to provide a notice of intent to initiate litigation to each prospective defendant as a condition precedent to filing a medical negligence action. See id. To help alleviate what it saw as a medical malpractice litigation crisis, the legislature required claimants to certify in their complaints that they had conducted a reasonable investigation resulting in a good faith belief that sufficient grounds existed to support the filing of the action. See Ch. 85-175, § 12, at 1196, Laws of Fla. (codified at § 768.495(1), Fla. Stat. (1987)). Good faith could be substantiated if the plaintiffs counsel had obtained a written opinion from an expert that sufficient grounds existed to support the filing of the action. See id. However, no such written opinion was required. Responding to complaints that this was an empty requirement, the legislature, in 1988, adopted procedures for what was termed "presuit investigation." See Ch. 88-1, §§ 48-53, at 164-68, Laws of Fla. (codified at §§ 766.201-766.206, Fla. Stat. (1989)). Section 768.57 was renumbered as 766.106 and was amended to include subsection (7) dealing with informal discovery during the period after the filing of the notice of intent and the filing of the suit. See Ch. 88-277, § 48, at 1494, Laws of Fla.

At the heart of the presuit investigation amendments was the requirement that an expert's affidavit be obtained and that it be attached to the notice of intent to initiate litigation. See § 766.203(2), Fla. Stat. (1989). Section 766.205(4), which is virtually identical to section 766.106(5), was also added at that time.⁶ However, the simultaneous enactment of sections 766.205(4) and 766.203(2) may indicate that the legislature intended section 766.205(4), rather than section 766.106(5), to apply to the affidavit attached to the notice of intent. This view is further supported by the observation that the old section 768.57(5), which could not have applied to the required expert affidavit as there was no such requirement while that provision was in effect, became the new section 766.106(5). Further, the original section 768.57(5) and its successor section 766.106(5) are designated as dealing with "presuit screening" while new sections 766.201-766.206 are designated as dealing with "presuit investigation." Because these designations exist today side by side, it is apparent that the legislature intended to distinguish between presuit screening, covering the period up to the serving of the notice of intent, and presuit investigation, covering the period between the serving of the notice of intent and the filing of the suit.

While section 766.106(5) is the basis for the district courts' opinions at issue here, based upon the history of chapter 766, we believe that it is section 766.205(4), and not section 766.106(5), which prevents a party from using a corroborative affidavit to impeach witness testimony at trial. However, since the language of section 766.106(5) is virtually identical to that of section 766.205(4), our analysis of this issue remains the same regardless of what section is used.

Analysis

The courts of this state, including this Court, have uniformly found that the legislature enacted chapter 766 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 also Kukral v. Mekras, 679 So.2d 278, 281 (Fla.1996)

(quoting Williams, 588 So.2d at 983); Adventist Health System/Sunbelt, Inc. v. Watkins, 675 So.2d 1051, 1052 (Fla. 5th DCA 1996) (stating that the legislative intent of chapter 766 is to promote settlement); Grimshaw v. Schwegel, 572 So.2d 12, 13 (Fla. 2d DCA 1990) ("[I]t is apparent that the legislature considered...