Kukral v. Mekras
| Decision Date | 17 May 1994 |
| Docket Number | No. 93-2294,93-2294 |
| Citation | 647 So.2d 849 |
| Parties | 19 Fla. L. Weekly D1108 Charles KUKRAL and Milly Kukral, Appellants, v. George D. MEKRAS, M.D.; Miami Urology Institute, Inc. and Dr. John T. McDonald Foundation d/b/a Doctors' Hospital, Appellees. |
| Court | Florida District Court of Appeals |
Joe N. Unger, Miami, and Richard L. Katz, Coral Gables, for appellants.
George Hartz Lundeen Flagg & Fulmer, Hicks, Anderson & Blum, and Bambi G. Blum, Miami, for appellees Mekras and Miami Urology Institute, Inc.
Parenti, Falk, Waas & Frazier, Gail Leverett Parenti, Miami, for appellees Doctors' Hosp.
Before JORGENSON, COPE and GODERICH, JJ.
The plaintiffs, Charles and Milly Kukral, appeal from a final order dismissing their complaint for failure to comply with the pre-suit screening requirements. We affirm.
On February 21, 1992, the plaintiffs served on Doctor's Hospital and Dr. George D. Mekras notices of intent to initiate litigation for medical malpractice. The notices stated that during a medical procedure to remove genital warts undiluted acid was applied to the plaintiff's penis resulting in serious burns. These notices of intent were not accompanied by a verified written medical expert opinion when they were mailed. Miami Urology Institute, Inc. [MUI], Dr. Mekras' employer, alleges that it was not individually served with a notice of intent and that the notice sent to Dr. Mekras did not indicate that MUI was a prospective defendant.
Doctor's Hospital sent a denial of the claim to the plaintiffs accompanied by an affidavit of an expert. On August 14, 1992, the plaintiffs sent out an unverified medical expert opinion corroborating the claim of medical negligence. On September 3, 1992, the plaintiffs sent out a verification of medical expert opinion alleging negligence. Then, on October 9, 1992, the plaintiffs filed their complaint against Doctor's Hospital, Dr. Mekras, and MUI [collectively referred to as defendants] for medical malpractice. After the matter had been set for trial, the defendants filed a motion to determine whether the plaintiffs had properly complied with the statutory pre-suit screening procedures. After hearings, the trial court entered the appealed order dismissing the plaintiffs' case for failure to comply with the mandatory pre-suit screening procedures.
The plaintiffs contend that the trial court erred in dismissing their lawsuit for failing to provide a verified medical opinion of negligence with the notice of intent to initiate litigation where the facts giving rise to the injury set forth in the notice are sufficient to establish that the claim is not frivolous, where the defendants conducted their own investigation and denied negligence, and where a verified medical opinion was supplied prior to suit being filed. We disagree.
The plaintiffs sent notices of intent to initiate litigation without including the medical expert opinion as required by section 766.203, Florida Statutes (1991). Moreover, the plaintiffs did not present any evidence indicating that they consulted with any medical expert or that they conducted a good faith and reasonable investigation prior to mailing the notices as the statutes require. It is the plaintiffs failure to comply with their duty to conduct an investigation as defined by section 766.202(4), Florida Statutes (1991), that distinguishes this case from the cases relied on by plaintiffs. In Stebilla v. Mussallem, 595 So.2d 136 (Fla. 5th DCA), rev. denied, 604 So.2d 487 (Fla.1992) and Ragoonanan v. Assocs. in Obstetrics & Gynecology, 619 So.2d 482 (Fla. 2d DCA 1993), and in Suarez v. St. Joseph's Hosp., Inc., 634 So.2d 217 (Fla. 2d DCA 1994), the plaintiffs obtained the necessary medical opinion before filing their notices.
Under section 766.206, Florida Statutes (1991), since no reasonable investigation was conducted, the plaintiffs' claim was properly dismissed. The order appealed from is hereby affirmed.
I dissent. By its affirmance today, the court revalidates Mr. Bumble's proposition 1 and denies Mr. Kukral his constitutionally protected guarantee of access to the courts to seek redress for the excruciating injuries that he suffered at the hands of health care professionals. The record in this case unequivocally shows that the plaintiff complied with the statutory preconditions for a medical malpractice case. Within the limitations period, plaintiff served defendants with a notice of intent to sue, conducted a reasonable presuit investigation, and provided the defendants with a verified expert medical opinion.
On July 26, 1991, plaintiff underwent surgery for the removal of genital warts. 2 Concentrated, not dilute, acetic acid was inadvertently applied, causing third degree, full-thickness chemical burns to the shaft and glans of his penis. Treatment for the burns required hyperbaric oxygen therapy, wound debridement, a cystostomy, by which a catheter was inserted through the abdominal wall into the bladder, bypassing the urethra, and a further surgical procedure by which skin from the plaintiff's thigh was grafted onto the damaged areas of his penis. Not surprisingly, the incident led to significant physical and psychological injury.
On February 21, 1992, plaintiff's counsel forwarded a Notice of Intent to Initiate Litigation for Medical Malpractice to the urologist and the hospital where the surgery was performed. The notice detailed the date of the injury and the reason why plaintiff had sought medical treatment, and described the injury suffered. Plaintiff did not include with the notice a corroborating expert medical opinion that medical malpractice had occurred. The defendants responded and conducted their own investigation, but took the position that the notice of intent was defective, as it did not include the corroborating opinion. On June 1, 1992, plaintiff's attorney provided defendants with a written expert opinion by a urologist. The expert detailed the cause, nature, and extent of plaintiff's injuries. The expert concluded that whether the physician was negligent in applying the wrong concentration of acid, or whether the hospital was negligent in labeling the solution, "this is a clear instance of medical mismanagement resulting in immediate significant physical and emotional injury to Mr. Kukral and, in my opinion, with probable long term psycho-sexual sequelae." The expert's written opinion was not verified, however, until August 18, 1992, when the doctor submitted an affidavit averring that his letter of June 1, 1992 accurately stated his opinion in this matter, and that he had not rendered any previous medical opinion that had been disqualified. 3
The defendants rejected the claim; plaintiff filed his malpractice complaint on October 9, 1992. Defendants moved to dismiss on November 4, 1992, alleging that plaintiff had not complied with the presuit notice requirements. The trial court denied those motions, and the case proceeded for nine months through discovery and various pretrial motions. The cause was set for the three week trial period beginning on August 30, 1993. On July 20, 1993, six days before the statute of limitations was to run, defendants filed a "Motion to Determine if Plaintiff Properly Complied with Presuit Screening." The trial court granted that motion and dismissed the action, finding that plaintiff had failed to provide a corroborating expert medical opinion with the Notice of Intent, and had failed to conduct a reasonable investigation.
The Florida Supreme Court has emphasized that "when possible the presuit notice and screening statute should be construed in a manner that favors access to the courts." Patry v. Capps, 633 So.2d 9, 13 (Fla.1994); see also Weinstock v. Groth, 629 So.2d 835, 838 (Fla.1993) () (citations omitted). This is particularly so when, as here, defendants have not been prejudiced by plaintiff's actions. Patry, 633 So.2d at 13.
Plaintiff provided a written corroborating medical expert opinion within the period of the statute of limitations, and then verified that opinion within the limitations period; he complied with the presuit notice requirements and should not be subject to the ultimate sanction--dismissal of his claim. See ...
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