Malunney v. Pearlstein

• Decision Date: 08 February 1989
• Docket Number: No. 88-445,88-445
• Citation: 539 So.2d 493,14 Fla. L. Weekly 415
• Parties: 14 Fla. L. Weekly 415 Earla W. MALUNNEY, as Administratrix of the Estate of John T. Malunney, deceased, Appellant, v. Leslie PEARLSTEIN, M.D., Appellee.
• Court: Florida District Court of Appeals

Page 493

539 So.2d 493

14 Fla. L. Weekly 415

Earla W. MALUNNEY, as Administratrix of the Estate of John T. Malunney, deceased, Appellant, v. Leslie PEARLSTEIN, M.D., Appellee.

No. 88-445.

District Court of Appeal of Florida,

Second District.

Feb. 8, 1989.

Rehearing Denied March 13, 1989.

Michael R. Karp, Sarasota, for appellant.

Nelly N. Khouzam of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellee.

PARKER, Judge.

Earla Malunney, the administratrix of her husband's estate, appeals from the trial court's order dismissing the Malunneys' complaint ¹ with prejudice in an action against appellee, Leslie Pearlstein, M.D. for medical malpractice. We reverse.

This is the second lawsuit filed by the Malunneys against Pearlstein arising from the same claim of malpractice. In the appeal from the first lawsuit, Pearlstein v. Malunney, 500 So.2d 585 (Fla. 2d DCA 1986) (Pearlstein I ), review denied, 511 So.2d 299 (Fla.1987), Pearlstein sought a writ of certiorari after the trial court declared unconstitutional the prefiling notice requirements of section 768.57, Florida Statutes (1985). ² This court granted Pearlstein's petition, found the statute constitutional, and quashed the trial court's order which directed that Pearlstein answer the complaint.

This controversy began when the Malunneys filed their initial complaint in Pearlstein I on January 17, 1986. The complaint failed to allege that the required notice of intent to litigate had been furnished to Pearlstein at least ninety days prior to the filing of the complaint. It was not until after the complaint was filed that a letter of notice of intent to litigate was mailed to Pearlstein on February 25, 1986. This court held in Pearlstein I that the furnishing of notice to Pearlstein was a precondition to the filing of the lawsuit which could not be satisfied by the mailing of notice after filing of the complaint. Id. at 587.

Following issuance of the mandate on January 29, 1987, in Pearlstein I, the Malunneys filed a second complaint ³ on February 19, 1987, containing essentially the same allegations, with two notable additions. Paragraph eight of the complaint alleged compliance with the statutory notice by virtue of the letter mailed on February 25, 1986. Malunney attached a copy of that letter to the complaint. Paragraph nine alleged that a severe and permanent injury was inflicted upon Mr. Malunney as a result of the negligence of Pearlstein; it was alleged that the negligence was not discovered until January 1986. This allegation differed from the complaint in Pearlstein I, which merely alleged that the negligent diagnosis, treatment, and care occurred from January 1984, through April 1984. The trial court's dismissal of the second complaint gives rise to this appeal. ⁴

The following grounds were set forth in Pearlstein's motion to dismiss the second complaint:

1. Malunney is barred by res judicata and the law of the case from filing a subsequent suit between the same parties based upon the same cause of action;

2. Malunney failed to adhere to section 768.57 by not filing the complaint after the required notice and ninety day interval before a complaint was filed;

3. Malunney failed to serve notice to litigate within the two-year statute of limitations period required by section 95.11, Florida Statutes (1985), and by insertion of paragraph nine in the complaint, the new date in 1986 was alleged to avoid the statute of limitations.

Turning first to the issue of res judicata, a requirement of that doctrine, which is asserted as a bar to the instant action, is that the previous action must have been terminated by "a final judgment on the merits." See, e.g., Hinchee v. Fisher, 93 So.2d 351 (Fla.1957). We cannot find, however, that dismissal of the complaint in Pearlstein I resulted in an adjudication upon the merits. A dismissal on the pleadings does not constitute a final judgment on the merits of the case barring a second action. But see Hardcastle v. Mohr, 483 So.2d 874 (Fla. 2d DCA 1986) (where the case proceeded through trial, a determination made following the trial is considered final for res judicata purposes).

We also reject Pearlstein's argument that the dismissal of the second lawsuit was appropriate for the reason that this court's decision in Pearlstein I represents the law of the case with regard to the notice issue. In Pearlstein I we rejected the notion that mere filing of the complaint satisfied the statutory notice requirement. We continue to adhere to that determination. We also adhere to the view that revival of the initial complaint cannot be achieved through the belated service of the statutory notice. In the present setting, however, we are not confronted with the resuscitation of a properly dismissed complaint as we were in Pearlstein I, thereby explaining this court's language in that opinion that "we cannot authorize revival of the complaint because, as petitioners point out, it fails to satisfy the requirements of section 768.495 [sic], Florida Statutes (1985)." In the present situation, a second complaint embodying the essential notice element was filed. In this regard, a distinction must be drawn between the commencement of the malpractice suit and the existence of a cause of action. The purpose of section 768.57 is wholly procedural and, as we noted in Castro v. Davis, 527 So.2d 250 (Fla. 2d DCA 1988), ⁵ simply provides the potential defendant with an opportunity to resolve amicably the controversy without the burden of a lawsuit. That section, however, has no effect upon the existence of a cause of action. Thus, although Pearlstein I speaks to the procedural concern stemming from the statute's literal meaning and purpose, it was not intended by the language found in that opinion to oust a plaintiff from the ability to pursue a new or subsequent action for the alleged malpractice.

Because Pearlstein has not had the benefit of the full ninety-day period for presuit discussion and investigation...