Glineck v. Lentz, 87-838
| Decision Date | 31 March 1988 |
| Docket Number | No. 87-838,87-838 |
| Parties | 13 Fla. L. Weekly 833 Donna L. GLINECK, Appellant, v. Carl W. LENTZ, III, et al., Appellees. |
| Court | Florida District Court of Appeals |
Benjamin Yancy Saxon, II, and Edward J. Richardson of Saxon & Richardson, P.A., Melbourne, and M. Brice Corder, Melbourne, for appellant.
James W. Smith and Robert K. Rouse, Jr., of Smith, Schoder & Rouse, P.A., Daytona Beach, for appellees.
An allegation that the plaintiff-patient gave the defendant-doctor actual oral notice of intent to initiate litigation for medical malpractice fails to allege compliance with section 768.57(2), Florida Statutes (1985), which requires such notice of intent be in writing and served by certified mail, return receipt requested.
If notice of an intended medical malpractice action is necessary, and the legislature has directed it, then there is good reason that the form of such notice be such as to eliminate or reduce contention and litigation concerning compliance with such notice requirement. We decline to disregard the clear legislative direction contained in the statute and decline to hold that actual notice is sufficient compliance with the statute.
The issue before us is whether actual, verbal notice to a physician by a patient that she intends to initiate a medical malpractice action against him for an allegedly negligent act, given more than 90 days prior to the filing of the malpractice action, satisfies the requirements of section 768.57(2), Florida Statutes (Supp.1986). 1
The amended complaint alleged, in substance, that the plaintiff and her attorney personally met with appellee at his office, informed him of their intention to file a medical malpractice action against him for acts which they considered to have been negligently performed and demanded copies of relevant medical records and photographs in appellee's files which were then furnished; that based upon the notice appellee notified his malpractice carrier of plaintiff's claim and furnished the carrier with complete information regarding the treatment rendered to plaintiff; that the carrier retained counsel with regard to the claim; that the carrier and its attorneys conducted an "immediate and thorough investigation of plaintiff's claim." Plaintiff further alleges her willingness to cooperate with the insurer in the investigation of the claim, to submit to a physical examination and to appear before a pretrial screening panel or a medical review committee if requested to do so.
Assuming these allegations to be true, as we must in ruling on a motion to dismiss, it seems to me that the plaintiff has alleged substantial, if not literal, compliance with the statute. Although the majority opinion proposes a bright-line rule, it overlooks the clear intent of the statute, which is to give a medical practitioner a reasonable opportunity (90 days) to review the merits of a claim and to settle the claim without litigation if it appears to be meritorious, or to propose arbitration as to damages if liability is admitted. The statute prohibits the filing of suit within this 90 day period. § 768.57(3), Fla.Stat. (Supp.1986). Both the claimant and the prospective defendant must cooperate with the insurer, and claimant must appear before a pretrial screening committee or before a medical review committee, and must submit to a physical examination, if required. At or before the end of the 90 day period, the insurer or self-insurer is required to respond by either rejecting the claim, making a settlement offer or admitting liability and demanding arbitration on damages. Obviously, the purpose of the notice in the first place is to start this chain of procedure, and it should make little difference how the notice is communicated, so long as it is given in an unequivocal manner.
In analogous circumstances, strict compliance with a requirement as to the form of notice has not been required. In Tillman v. City of Pompano Beach, 100 So.2d 53 (Fla.1957), the court was faced with the task of determining whether there had been compliance with a legislative act which required that a city be given written notice of a claim within 30 days of injury as a condition to the maintenance of an action against the...
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Solimando v. International Medical Centers, H.M.O.
...sworn that they did not receive that notice). This procedure was insufficient for compliance with the statute. See Glineck v. Lentz, 524 So.2d 458 (Fla. 5th DCA 1988) (prior oral notice insufficient). Nor was there sufficient compliance through the mailing of the notice by certified mail, r......
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Patry v. Capps
...DCA) (notice sent by regular mail insufficient under section 768.57(2)), review dismissed, 549 So.2d 1013 (Fla.1989); Glineck v. Lentz, 524 So.2d 458 (Fla. 5th DCA) (only written notice by certified mail, return receipt requested, sufficient under section 768.57(2)), review denied, 534 So.2......
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Ingersoll v. Hoffman
...for constructive notice, nor does it allow for oral notice, notice by publication, or notice by regular mail. See Glineck v. Lentz, 524 So.2d 458 (Fla. 5th DCA 1988), review denied, 534 So.2d 399 (Fla.1988); Pearlstein v. Malunney, 500 So.2d 585 (Fla. 2d DCA 1986), review denied, 511 So.2d ......
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Patry v. Capps, 91-04193
...review dismissed, 549 So.2d 1013 (Fla.1989). Actual oral notice has also been held inadequate under the statute. Glineck v. Lentz, 524 So.2d 458 (Fla. 5th DCA 1988). Based on the foregoing precedent, we are unable to do other than conclude that delivery of written notice fails to comply wit......