Duffy v. Brooker, s. 91-3847

• Decision Date: 21 January 1993
• Docket Number: 91-3877,Nos. 91-3847,s. 91-3847
• Citation: 614 So.2d 539
• Parties: 18 Fla. L. Week. D359 Patrick M. DUFFY, M.D., and Physicians Protective Trust Fund, Appellants, v. Betty BROOKER, as Personal Representative of the Estate of Ronald Brooker, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 539

614 So.2d 539

18 Fla. L. Week. D359

Patrick M. DUFFY, M.D., and Physicians Protective Trust Fund, Appellants, v. Betty BROOKER, as Personal Representative of the Estate of Ronald Brooker, Deceased, Appellee.

Nos. 91-3847, 91-3877.

District Court of Appeal of Florida First District.

Jan. 21, 1993.

Gary A. Shipman and Richard B. Collins, of Collins, Dennis & Truett, Tallahassee, and Bambi G. Blum and Mark Hicks, of Hicks, Anderson & Blum, P.A., Miami, for appellants.

Samuel Hankin and Phil C. Beverly, Jr., of Hankin & Beverly, P.A., Gainesville, for appellee.

Peter S. Branning, P.A. and Susan J. Silverman, Sarasota, for Amicus Curiae, Academy of Florida Trial Lawyers.

BARFIELD, Judge.

Dr. Duffy and his medical malpractice insurer appeal a final order imposing sanctions upon the insurer under section 766.206, Florida Statutes (1989). We affirm.

In August 1990, pursuant to section 766.106, Mrs. Brooker filed a notice of intent to initiate malpractice litigation against Dr. Duffy for the death of her husband. Pursuant to section 766.203(2), the notice was accompanied by the four page affidavit of Dr. Stahl, a board certified gastroenterologist and internist, which stated that, within a reasonable degree of medical probability, there are reasonable grounds to believe that Dr. Duffy was negligent in the care or treatment of Brooker and that such negligence resulted in injury to him. The affidavit outlined the documents Dr. Stahl reviewed and the grounds for the claim of negligent injury. Dr. Stahl concluded that, in not considering an alternate diagnosis and pursuing the appropriate studies, Dr. Duffy fell below acceptable medical standards of care.

In December 1990, Daniel Stephens, a claims adjustor for Physicians Protective Trust Fund (PPTF), Duffy's insurer, responded with a letter which stated:

After a thorough review of this matter, we find no basis to support a claim of negligent injury against Dr. Patrick Duffy. Thereby your client's claim is hereby denied. Enclosed is a copy of the required corroborating affidavit to support our position.

Attached was the following unnotarized statement of Dr. Edgerton:

I hereby state the following:

1. That I am a medical expert as defined by Florida Statute 766.202(5);

2. That my medical opinion based upon review of the claim made by RONALD BROOKER, DECEASED, against PATRICK A. DUFFY, M.D. corroborates reasonable grounds for lack of negligent injury pursuant to Florida Statute 766.203(3);

3. That I have not rendered any previous medical opinion which has been disqualified pursuant to Florida Statute 766.203(4);

I HEREBY CERTIFY THAT THE ABOVE STATEMENTS ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND ABILITY.

Mrs. Brooker filed her complaint against Dr. Duffy in February 1991. Thereafter, she filed a "Motion Requesting Determination as to Whether Defendant's Denial of Claim Rests on a Reasonable Basis Pursuant to Sec. 766.206(1), F.S." Dr. Duffy's attorney filed a response to the motion, attaching a notarized sworn statement from Edgerton similar to the first, except with this added paragraph:

4. That I have previously rendered said medical opinion on December 11, 1990, and that said expert opinion was inadvertently not sworn and attested to. My opinions have not deviated or changed any from the opinion rendered on December 11, 1990.

At the hearing on the motion, the trial judge instructed the parties that there were two issues (whether Edgerton's statement complied with section 766.203(3), and whether a reasonable investigation was made by the insurance company and/or by Edgerton) and that Brooker had the burden of making out a prima facie case under the statute, at which time the burden of going forward would shift to the defendant. The only witness on the merits was Catherine Burney, the present adjustor (Stephens had left PPTF six months before).

Burney testified that she had not participated in the presuit screening. The file indicated that the case was turned over to PPTF on September 10, 1990, and that they acknowledged by letter on September 14, 1990. Burney testified that the first medical review would have been performed by Stephens, who is a registered nurse, and that the records were also sent to Dr. Edgerton, a board certified gastroenterologist.

The file indicated that Stephens asked for an extension of the statutory 90-day period in order to forward additional records sent to PPTF on November 15, 1990. Burney testified that PPTF sent Brooker's attorneys a copy of the medical records on September 27, 1990, some of which were illegible. Stephens wrote on October 4, 1990, that he was a victim of the hospital as to the quality of the records. On November 15, 1990, Brooker's attorneys forwarded legible copies of the records. Burney testified that she did not know when Dr. Edgerton first looked at the records, and that PPTF's attorney was involved only to the extent that he appeared at an unsworn statement. ¹

On cross-examination, Burney identified Dr. Edgerton's February 1991 sworn statement. She testified that she has twelve years experience reviewing medical malpractice claims and that in her opinion there was a good-faith review done on this claim, and a good-faith determination by PPTF that there was no negligence on the part of Dr. Duffy. On redirect examination, Burney again admitted that she had had no on-hand involvement with the review of the claim.

Defense counsel moved for a directed judgment on the motion, citing Damus v. Parvez, 556 So.2d 1136 (Fla. 3d DCA 1989), for the proposition that the verified corroborating statement was timely produced before the hearing. The trial judge asked defense counsel, assuming that the verification requirement had been met, how they had complied with the requirement of "reasonable grounds for lack of negligent injury." He expressed concern that Dr. Edgerton's statement contained no grounds for his conclusion, noting "to me, corroborate means provide some factual basis for the conclusion that's reached."

Claimant's counsel cited Dressler v. Boca Raton Community Hospital, 566 So.2d 571 (Fla. 4th DCA 1990), rev. den., 581 So.2d 164 (Fla.1991), arguing that PPTF's response did not indicate what kind of doctor Edgerton was, what he had reviewed, or "what aspect of our alleged negligence he was refuting." He also cited Farmers Insurance Exchange v. Colton, 264 Or. 210, 504 P.2d 1041 (1972), defining "corroboration" as "something which leads an impartial and reasonable mind to believe that material testimony is true, testimony of some substantial fact or circumstances independent of a statement of a witness." The trial judge observed: "It's a simple question of what did the legislature intend when they adopted this statute."

Burney was recalled to testify that as the supervisor, it is her duty to determine whether a reasonable investigation has been completed, and that she determined that "a good-faith investigation was conducted on behalf of Dr. Duffy in this case." She testified that Dr. Edgerton was a board certified gastroenterologist and internist, a health care provider similar to Dr. Duffy, and that Dr. Edgerton's corroboration statement is "very standard" in the industry and is a standard form used by PPTF. She described the usual "claims review and consultation session" between the claims adjustor and the expert reviewer, "during which the entire medical record is discussed and further discussion is centered around the allegations put forth by the attorney representing the patient or patient's estate," and testified that such a meeting had been conducted in this case and that the investigation "was handled as all investigations are handled throughout the state."

On cross-examination, Burney testified that PPTF prepares the form "corroboration" statement and that the reviewing physician completes it. She stated that the claims review and consultation session in this case was held on December 11, 1990, and that the delay in the claims review process was caused by the illegible copies of the hospital records. She did not know how long Dr. Edgerton had spent reviewing the records.

The trial judge issued a twelve page order granting Brooker's motion, striking PPTF's response, and holding PPTF "personally responsible to plaintiff" for reasonable attorney fees and costs incurred during the investigation and evaluation of the claim. Having outlined the statutory framework and the relevant facts, the judge observed that certain propositions were clear from the "presuit investigation" provisions of chapter 766.

He found that the presuit investigation provisions are an integral part of "a plan for prompt resolution of medical negligence claims" designed to "facilitate amicable resolution" of such claims. He found that the provisions apply to all medical negligence claims and defenses, and were intended to facilitate "early determination of the merit of claims" and to allow the parties to "verify" that a "reasonable investigation" has preceded the making of both claims and defenses in medical negligence actions. He found that any party may request that the court determine whether an opposing party's claim or denial "rests on a reasonable basis," and that if the court finds that the response rejecting the claim "is not in compliance with the reasonable investigation requirements," it must impose the sanctions set out in section 766.206(3).

He observed that under section 766.206 the burden of persuasion and the initial burden of going forward rest on the moving party and that the burden of persuasion never shifts, but that once the moving party presents a prima facie case that the opposing party's claim or denial does not rest "on a reasonable basis," the burden of going forward shifts to the opposing party to present evidence that it complied with the "reasonable investigation" requirements and that its claim or denial does rest "on a reasonable basis." He found that Brooker had...