Largie v. Gregorian

• Decision Date: 07 November 2005
• Docket Number: No. 3D04-2701.,3D04-2701.
• Citation: 913 So.2d 635
• Parties: Winston LARGIE and Luvon Largie, Appellants, v. Michael GREGORIAN, M.D., Michael Gregorian, M.D., P.A., Jessica Wang, A.R.N.P.C., Steven Meyerson, M.D., and Steven Meyerson, M.D., P.A., Appellees.
• Court: Florida Supreme Court

Page 635

913 So.2d 635

Winston LARGIE and Luvon Largie, Appellants, v. Michael GREGORIAN, M.D., Michael Gregorian, M.D., P.A., Jessica Wang, A.R.N.P.C., Steven Meyerson, M.D., and Steven Meyerson, M.D., P.A., Appellees.

No. 3D04-2701.

District Court of Appeal of Florida, Third District.

July 13, 2005.

Rehearing and Rehearing En Banc Denied November 7, 2005.

Laurie Waldman Ross and Theresa Girten; Barbara C. McCauley, Miami, for appellants.

Mintzer, Sarowitz, Zeris, Ledva & Meyers, Coral Gables, and Barbara S. Diamond, for appellee, Jessica Wang.

Before FLETCHER, WELLS, and CORTIÑAS, JJ.

WELLS, J.

Winston and Luvon Largie, plaintiffs below, appeal a summary judgment in their medical malpractice action in favor of defendant, registered nurse practitioner Jessica Wang. Because we agree that the Largies failed to comply with presuit investigation requirements delineated in Chapter 766 prior to running of the statute of limitations, we affirm.

In March and April 2000, Winston Largie was seen by Jessica Wang, an advanced registered nurse practitioner, at the offices of Dr. Michael Gregorian. Nurse Wang's notes confirm that a blood test performed on Mr. Largie during this period showed an elevated prostate specific antigen (PSA) level and that a follow-up PSA test should be performed. Although Mr. Largie continued to be seen at Dr. Gregorian's offices until the following May, no follow up PSA tests were done.

In August 2001, Mr. Largie started seeing Dr. Steven Meyerson. Dr. Meyerson also had a blood test performed on Mr. Largie, which, like the test performed while he was a patient of Dr. Gregorian's office, showed that Mr. Largie had an elevated PSA level. Dr. Meyerson did not, however, immediately refer Mr. Largie to a urologist. In May 2002, Mr. Largie was diagnosed with prostate cancer.

In late 2002, the Largies served Dr. Gregorian with a notice of intent to initiate a medical malpractice action. That notice was accompanied by a corroborating affidavit stating:

AFFIDAVIT OF EXPERT OPINION

1. My name is Frank Waxman. I am a physician licensed to practice medicine in the State of Florida. I am a primary care physician.

2. I have review (sic) the medical records of Winston Largie including the office records of Dr. Michael Gregorian.

3. Mr. Largie had an elevated PSA in April 2000 which required further follow up. Dr. Gregorian as well as Dr. A. Scott Dansky¹ failed to do a follow up to Mr. Largie's elevated PSA.

4. Failure to do a follow up to an elevated PSA is a deviation from the standard of care. In this case it is probable that such failure caused a delay in the diagnosis of Mr. Largie's prostate cancer. Such delay probably caused the cancer to develop further causing a negative impact on the patient.

5. No opinion of mine has been disqualified in any court.

Under penalty of perjury, I declare that I have read the above affidavit and the facts stated in it are true.

(Emphasis added).

On January 10, 2003, the Largies filed suit against Dr. Gregorian for medical malpractice. Although they had served neither a notice of intent to initiate litigation nor a corroborating affidavit on Nurse Wang, they alleged a medical malpractice claim against her as well. It was not until seven months after the action was filed against Nurse Wang that she was served with a notice of intent and the same corroborating affidavit that had been served on Dr. Gregorian.

The action against Nurse Wang was dismissed and re-filed in November 2003. See § 766.106(3)(a), Fla. Stat. (2002)("[n]o suit may be filed for a period of 90 days after notice is mailed to any prospective defendant ... [during which] the prospective defendant's insurer or self-insurer shall conduct a review to determine the liability of the defendant"). Nurse Wang then challenged the Largies' compliance with Chapter 766 presuit investigation requirements claiming that they had failed to provide corroboration of reasonable grounds to support a claim of medical malpractice. The trial court, following two hearings on the matter, agreed, stating that "each defendant has a right and you have an obligation as plaintiff's lawyer to do a separate investigation as to each one and you must provide a separate affidavit as to the negligence of everybody that you claim was negligent [and y]ou haven't done it here." The court below entered judgment in Nurse Wang's favor. For the following reasons, we affirm.

As the Florida Supreme Court has repeatedly stated, the presuit procedures delineated in Chapter 766 are "intended to address a legitimate legislative policy decision relating to medical malpractice and establish[ ] a process intended 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 Patry v. Capps, 633 So.2d 9, 11-12 (Fla.1994)(stating the purpose of "the presuit notice and screening requirements set forth in the statute ... are `designed to facilitate the amicable resolution of medical malpractice claims'" and to "promote the settlement of meritorious claims early in the controversy in order to avoid full adversarial proceedings") (quoting Ingersoll v. Hoffman, 589 So.2d 223, 224 (Fla.1991)).

To accomplish this goal, Chapter 766 of the Florida Statutes sets out "a complex presuit investigation procedure that both the claimant and defendant must follow before a medical negligence claim may be brought in court." Kukral v. Mekras, 679 So.2d 278, 280 (Fla.1996). While the procedures set forth in Chapter 766 are not intended to deny access to the courts, they are "more than mere technicalities." Correa v. Robertson, 693 So.2d 619, 621 (Fla. 2d DCA 1997); see also Apostolico v. Orlando Reg'l Health Care Sys., Inc., 871 So.2d 283, 286 (Fla. 5th DCA 2004)("Florida courts are required to construe the Medical Malpractice Act `so as not to unduly restrict a Florida citizen's constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses'")(quoting Kukral, 679 So.2d at 284); Melanson v. Agravat, 675 So.2d 1032, 1033-1034 (Fla. 1st DCA 1996) (confirming that although the presuit notice and screening statutes should be construed in favor of access to the courts, presuit notice and screening requirements are more than mere technicalities).

The first step in implementing this policy "requires a claimant to determine whether reasonable grounds exist to believe that someone acted negligently in the claimant's care or treatment and that this negligence caused the claimant's injury." Kukral, 679 So.2d at 280. This requires both investigation and corroboration of the results of the investigation by "a verified written medical expert opinion." § 766.203(2), Fla. Stat. (2002); see also § 766.104(1), Fla. Stat. (2002)(providing that no medical negligence action may be filed unless the attorney filing the action has made "a reasonable investigation... to determine that there are grounds for a good faith belief that there has been negligence").

By definition, an investigation consists of: (1) review of the case against each potential defendant; (2) consultation with a medical expert; and; (3) written corroboration of negligence by a medical expert:

"Investigation" means that an attorney has reviewed the case against each and every potential defendant and has consulted with a medical expert and has obtained a written opinion from said expert.

§ 766.202(4), Fla. Stat. (2002).

Requiring a written expert opinion as part of the presuit investigation assures the defendant that the claim was preceded by a reasonable investigation; "that there is justification for the Plaintiffs' claim, i.e., that it is not a frivolous medical malpractice claim ... [; and] that the claim is legitimate." Kukral, 679 So.2d at 282; Wolfsen v. Applegate, 619 So.2d 1050, 1054-55 (Fla. 1st DCA 1993)(stating that the purpose of reviewing a corroborating affidavit is "to ensure that a claim or denial has been preceded by a `reasonable investigation,' and that it `rests on a reasonable basis'-i.e., `to eliminate frivolous claims and defenses'")(quoting § 766.201(2)(a)1, Fla. Stat. (1989)).

The expert opinion provided to Nurse Wang completely fails to satisfy these purposes. It makes no mention of Nurse Wang whatsoever, either by name or job description; it makes no reference to the standard of care applicable to a certified registered nurse practitioner or to any deviation from that standard of care; and, it does not suggest, much less corroborate, that any investigation took place with regard to Nurse Wang or that any reasonable grounds exist to support the Largies' claim against her as expressly mandated by Chapter 766. In fact, and as the most recent amendments to Chapter 766 confirm, the expert opinion affidavit does not suggest that the expert rendering the opinion is qualified to opine as to a nurse practitioner. See § 766.102(6), Fla. Stat. (2004)(providing that as to a nurse practitioner an expert opinion must be rendered by a licensed physician who otherwise qualifies as an expert witness and who "by reason of active clinical practice or instruction of students, has knowledge of the applicable standard of care for ... nurse practitioners"); see also § 766.203(2), Fla. Stat. (2004)(requiring a corroborating opinion from a medical expert as defined in section 766.202(6)); § 766.202(6), Fla. Stat. (2004)(defining a medical expert as one who meets the requirements of section 766.102). Thus, while the Largies' expert affidavit may be sufficient as to the physicians named in it, it fails to demonstrate any investigation as to Nurse Wang and is wholly insufficient.

Moreover, when pointedly asked to explain what had been done to investigate the Largies' claim against Nurse Wang, counsel did no more than point to the affidavit referencing only Drs. Gregorian and Dansky and...