DECRISTO v. COLUMBIA HOSP. PALM BEACHES, 4D01-3842.

• Decision Date: 02 March 2005
• Docket Number: No. 4D01-3842.,4D01-3842.
• Citation: 896 So.2d 909
• Parties: Elaine DeCRISTO, as Personal Representative of the Estate of Honoree DeCristo, Appellant, v. COLUMBIA HOSPITAL PALM BEACHES, LIMITED, d/b/a Columbia Hospital, and Nancy S. Griff, M.D., Appellees.
• Court: Florida District Court of Appeals

896 So.2d 909

Elaine DeCRISTO, as Personal Representative of the Estate of Honoree DeCristo, Appellant, v. COLUMBIA HOSPITAL PALM BEACHES, LIMITED, d/b/a Columbia Hospital, and Nancy S. Griff, M.D., Appellees.

No. 4D01-3842.

District Court of Appeal of Florida, Fourth District.

March 2, 2005.

Richard D. Schuler of Schuler & Halvorson, P.A., and Philip M. Burlington of Philip M. Burlington, P.A., West Palm Beach, for appellant.

Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Lawrence E. Brownstein, West Palm Beach, for Appellee-Nancy S. Griff, M.D. Jacqulyn Mack of the Mack Law Firm Chartered, Englewood, for Amicus Curiae Academy of Florida Trial Lawyers.

GOLD, MARC H., Associate Judge.

Background

On December 2, 1997, Honoree DeCristo was voluntarily admitted for psychiatric care at Columbia Hospital in West Palm Beach. While at Columbia Hospital, Ms. DeCristo was under the care of appellee, Dr. Nancy Griff.

The next day, Ms. DeCristo, at her request, was discharged from the hospital. On December 10, 1997, Ms. DeCristo committed suicide.

The mother of Honoree DeCristo, Elaine DeCristo, as personal representative of the estate of her daughter, brought suit against Columbia Hospital¹ and the appellee, Dr. Griff.

Attached to the complaint was a copy of the notice of intent to initiate litigation for medical malpractice, previously sent to the appellees, and the affidavit of Walter E. Afield, M.D., a board certified psychiatrist, pursuant to section 766.201, Florida Statutes. In his affidavit, Dr. Afield stated that based on his review of the medical records and other documents, it was his opinion that the appellees had failed to meet the appropriate standard of care by not converting the voluntary admission of Honoree DeCristo to an involuntary placement. Dr. Afield also stated: "to my knowledge no previous medical expert opinion by me has been disqualified."

On July 5, 2001, over a year after the original suit was filed,² the defendant filed her motion to disqualify expert/motion to strike presuit/motion to dismiss/motion for sanctions. The motion was based on the deposition testimony of Dr. Afield wherein he testified that he had been previously disqualified as a presuit expert.

In response, the plaintiff filed, among other documents, an affidavit of Dr. Afield which reflected that:

1. The case in which he was disqualified he had mistakenly listed himself as being a board certified neurologist when, in fact, he was a board certified member of the American Board of Psychiatry and Neurology.

2. His statement in the presuit affidavit that he had never been disqualified was based on advice of legal counsel. Attached to his affidavit was a letter provided to him by an attorney which confirmed this statement.

3. He had "not [sic] discussed this issue regarding the striking of [his] affidavit with neither [Plaintiff's counsel] nor Mrs. DeCristo at any time prior to the motion to strike that has been filed herein."

The plaintiff filed an affidavit stating that she had no knowledge of the disqualification of any medical opinion of Dr. Afield. Plaintiff's counsel filed a similar affidavit.

At the hearing on this matter, the trial court specifically found that the misstatement was not attributable to either the plaintiff or her counsel.

The trial court subsequently entered an order granting the defendant's motion. Dr. Afield was disqualified as a witness, as were his opinions. Dr. Afield's presuit affidavit was stricken and, because the statute of limitations had run, the trial court ruled that dismissal of the plaintiff's case, with prejudice, was required.

Analysis

"The standard for reviewing a dismissal for failure to comply with presuit procedures in a medical malpractice action is abuse of discretion." Vincent v. Kaufman, 855 So.2d 1153 (Fla. 4th DCA 2003).

With this understanding, it is well settled that the striking of a party's pleadings for failure to comply with Chapter 766 presuit requirements is an extraordinary sanction justified only in extreme situations. McPherson v. Phillips, 877 So.2d 755, at n. 3 (Fla. 4th DCA 2004). In addition, the Florida courts have held that the presuit notice and screening statutes should be...