Otto v. Rodriguez, 96-3557

• Decision Date: 04 February 1998
• Docket Number: No. 96-3557,96-3557
• Parties: 23 Fla. L. Weekly D404 Joan Maley OTTO and James Maley, as the natural guardians and next of friend of Christopher Otto, Appellants, v. J.J. RODRIGUEZ, M.D., Appellee.
• Court: Florida District Court of Appeals

Page 1

710 So.2d 1

23 Fla. L. Weekly D404

Joan Maley OTTO and James Maley, as the natural guardians and next of friend of Christopher Otto, Appellants, v. J.J. RODRIGUEZ, M.D., Appellee.

No. 96-3557.

District Court of Appeal of Florida,

Fourth District.

Feb. 4, 1998.

Rehearing Denied March 24, 1998.

Robert A. Rosenblatt of Law Offices of Robert A. Rosenblatt, P.A., Coral Gables, for appellants.

Shelley H. Leinicke of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for appellee.

STONE, Chief Judge.

We affirm a final order dismissing this medical malpractice complaint for Plaintiffs-Appellants' failure to provide the pre-suit notice mandated by section 766.106, Florida Statutes. Defendant/Appellee's failure to provide full and complete medical records under section 766.204, Florida Statutes, which prevented the plaintiffs from obtaining a medical affidavit as required under section 766.205, Florida Statutes, did not constitute a waiver of the required notice.

In May 1995, Appellants' counsel sent an authorization for medical information to Appellee seeking complete medical information, including copies of duplicates of any x-rays, MRIs, CT scans, or cyanogenic studies. Appellee, in response, sent nine pages of medical record but did not forward diagnostic films. In August 1995, counsel sent a letter requesting copies of x-rays, CT scans or MRIs, obstetric ultrasounds, and cyanogenic studies. Appellee did not respond.

Appellants filed a medical malpractice complaint on November 2, 1995, but did not file an affidavit of corroborating medical opinion as required by section 766.205, or a notice of their intent to file suit as required by section 766.106. They filed suit one day before the statute of limitations expired and acknowledged that they had not complied with the statutory requirement for pre-suit notice. The trial court dismissed their complaint based on this noncompliance and the expiration of the statute of limitations.

Appellants argue that the notice requirement should be waived where they were unable to fulfill the corresponding statutory pre-suit condition requiring a corroborating medical opinion, due to the doctor's failure to furnish necessary medical records. See §§ 766.204-05, Fla. Stat (1995).

Section 766.204(2) provides, "Failure to provide copies of such medical records, or failure to make the charge for copies a reasonable charge, shall constitute evidence of failure of that party to comply with good faith discovery requirements and shall waive the requirement of written medical corroboration by the requesting party." (emphasis added) Patently, the statute does not contemplate waiver of the pre-suit notice requirement. Instead, it specifies that the penalty for failing to comply in good faith with the pre-suit discovery is only a waiver of the plaintiff's duty to furnish corroboration of medical claims. The duties to furnish notice and a medical affidavit are not inextricably linked. A corroborating medical opinion need not accompany the notice of intent as long as both pre-suit requirements are met before the statute of limitations expires. Kukral v. Mekras, 679 So.2d 278 (Fla.1996).

Moreover, the purpose behind the notice of intent to file suit is "to give the defendant notice of the incident in order to allow investigation of the matter and promote presuit settlement of the claim." Kukral, 679 So.2d at 282. In contrast, the purpose of the corroborating medical opinion is to corroborate the legitimacy of the claim and prevent the filing of baseless...