Pavolini v. Bird

• Decision Date: 30 August 2000
• Docket Number: No. 5D99-2640.,5D99-2640.
• Citation: 769 So.2d 410
• Parties: Arturo PAVOLINI and Stephanie Pavolini, Appellants, v. Eugenio F. BIRD, M.D., and Eugenio F. Bird, M.D., P.A., et al., Appellees.
• Court: Florida District Court of Appeals

769 So.2d 410

Arturo PAVOLINI and Stephanie Pavolini, Appellants, v. Eugenio F. BIRD, M.D., and Eugenio F. Bird, M.D., P.A., et al., Appellees.

No. 5D99-2640.

District Court of Appeal of Florida, Fifth District.

August 30, 2000.

Rehearing Denied October 13, 2000.

Earl L. Denney, Jr. of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, and Barbara J. Compiani of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for Appellants.

Rafael E. Martinez and Juan A. Ruiz of McEwan, Martinez, Luff, Dukes & Ruffier, P.A., Orlando, for Appellees Eugenio Bird, M.D. and Eugenio Bird, M.D., P.A.

Francis E. Pierce, III and David B. Falstad of Gurney & Handley, P.A., Orlando, and Richard L. Allen, Jr. and Brian Wagner of Mateer & Harbert, P.A., Orlando, for Appellees Henry J. Comiter, M.D., Henry J. Comiter, M.D., P.A., and Orlando Regional Healthcare System.

Martin B. Unger and Lee W. Marcus of Unger, Webster, Swartwood & Acree, P.A., Orlando, for Appellees Manuel J. Galceran, M.D. and Galceran & Meyer, M.D., P.A. Debra B. Potter of Haliczer, Pettis & White, Ft. Lauderdale, for Appellee Columbia Park Medical Center.

Hector A. More' and Benjamin W. Newman of Grower, Ketcham, More', Rutherford, Noecker, Bronson, Siboni & Eide, P.A., Orlando, for Appellees Michael J. Creamer, D.O., and Michael J. Creamer, D.O., P.A.

Christopher C. Curry and Robert A. Hannah of Hannah, Estes & Ingram, P.A., Orlando, for Appellees Patricia L. Maclay, M.D. and Patricia L. Maclay, M.D., P.A.

SAWAYA, J.

The appellants, Arturo and Stephanie Pavolini, appeal the trial court's order of dismissal of their derivative claims in the underlying medical malpractice action filed by Maria Pavolini, Arturo's wife and Stephanie's mother. The order of dismissal is based on the failure of the appellants to give separate notice pursuant to section 766.106(2), Florida Statutes (1999) of their intent to join in the action to litigate their derivative claims for loss of consortium.¹ We reverse.

The issue in this case is whether an individual who seeks to pursue a derivative claim for loss of consortium in a medical malpractice action must either provide notice of intent to initiate litigation pursuant to section 766.106, Florida Statutes, or join in the notice provided by the injured party.

This issue was addressed by the court in Chandler v. Novak, 596 So.2d 749 (Fla. 3d DCA 1992), wherein an injured spouse properly provided notice to the medical care provider of his intention to initiate a medical malpractice suit pursuant to section 768.57, Florida Statutes (1987),² but did not include the derivative claim of his wife for loss of consortium in the notice. The court reversed summary judgment in favor of the medical care provider on the derivative claim finding that the spouse with the derivative claim was not required to provide separate notice under the statute or join in the notice provided by her injured husband. The court reasoned that a derivative action is not a separate and distinct action, but is completely dependent upon the injured spouse establishing a cause of action against the medical care provider. The court also found that the notice provided by the injured spouse was sufficient to make the defendant aware of all the facts concerning the medical malpractice claim upon which the derivative claim is dependent and that there was no showing of prejudice by the lack of a separate notice regarding the derivative claim.

The appellees in the instant case argue that the better-reasoned approach to derivative claims was adopted by the court in Orange County v. Piper, 523 So.2d 196 (Fla. 5th DCA), rev. denied, 531 So.2d 1354 (Fla.1988), which involved a suit against a governmental entity based on the waiver of sovereign immunity provisions of section 768.28, Florida Statutes. In Piper, the court held that a party with a derivative claim for loss of consortium was required to give separate notice or join in the notice provided by the injured spouse pursuant to section 768.28(6), Florida Statutes, which is part of the overall statutory scheme that makes provision of waiver of sovereign immunity for liability for torts. The court in Chandler noted that its decision may conflict with the decision in Piper. The Florida Supreme Court in Metropolitan Dade County v. Reyes, 688 So.2d 311 (Fla.1996), refused to find a conflict in the decisions of Chandler and Piper. In Reyes, the supreme court held that in sovereign immunity cases, strict construction of the statutory provisions of section 768.28(6) requires that a spouse with a derivative claim for loss of consortium give a separate or distinct notice of the derivative claim. Important to the resolution of the issue in the instant case, however, is the supreme court's discussion of the decision in Chandler. The supreme court quoted pertinent provisions of the decision in Chandler that discussed the reasons why a separate or distinct notice of a derivative claim in a medical malpractice claim was not required and stated:

We need not disapprove the Chandler decision because it involved a different statute. We note that the statute requiring notice in the Chandler case did not waive sovereign immunity and, therefore, was not subject to the same type of construction as we must accord section 768.28(6)(a).

688 So.2d at 313.

We agree that the unique provisions of the pre-suit notice and investigation requirements of the Medical Malpractice Act (Act) which are not contained in the waiver of sovereign immunity statute clearly distinguish the decisions in Piper and Chandler and distinguish the notice requirement under the Act from the notice requirement under the waiver of sovereign immunity statute. The courts require that a statute granting a waiver of sovereign immunity which provides a legal remedy where none existed under the common law must be strictly construed. See Reyes; Morhaim v. State, Dep't. of Transp., 737 So.2d 1234 (Fla. 3d DCA 1999),

rev. denied, 751 So.2d 1252 (Fla.2000). In sharp contrast, the courts liberally construe the 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." Kukral v. Mekras, 679 So.2d 278, 284 (Fla. 1996); see Musculoskeletal Inst. Chartered v. Parham, 745 So.2d 946 (Fla.1999); Fort Walton Beach Med. Ctr., Inc. v. Dingler, 697 So.2d 575 (Fla. 1st DCA 1997). In particular, the courts have held that the pre-suit notice and screening requirements are "not intended to deny access to the courts on the basis of technicalities." Dingler, 697 So.2d at 579 (citing Archer v. Maddux, 645 So.2d 544, 546 (Fla. 1st DCA 1994)). "Instead, the presuit notice and screening statute should be construed in a manner that favors access to courts." Id. (citing Patry v. Capps, 633 So.2d 9, 13 (Fla.1994)).

The notice requirement under the Act is inextricably intertwined into the fabric of an overall statutory scheme designed to weed out meritless medical malpractice claims and promote the prompt resolution of valid claims. The Legislature expressed its intent to "provide a plan for prompt resolution of medical negligence claims," which plan consists "of two separate components, presuit investigation and arbitration." § 766.201(2), Fla. Stat. (1999). Pre-suit investigation is mandatory while arbitration is voluntary.³ Thus the notice provision cannot be considered in isolation because appended to the pre-suit notice requirement are the pre-suit investigation requirements contained in section 766.203, Florida Statutes.

The requirements of pre-suit investigation apply to "all medical negligence" claims and defenses. § 766.203(1), Fla. Stat. (1999). Thus we must first determine whether a person with a derivative claim for loss of consortium is a claimant under the Act who presents a claim for medical negligence. The pre-suit investigation statute provides that "[p]rior to issuing notification of intent to initiate medical malpractice litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that: (a) [a]ny named defendant in the litigation was negligent in the care and treatment of the claimant; and (b), [s]uch negligence resulted in injury to the claimant." § 766.203(2)(a),(b), Fla. Stat. (1999) (emphasis supplied). A claimant under the Act is defined as "any person who has a cause of action arising from medical negligence." § 766.202(1), Fla. Stat. (1999). The Act further provides in section 766.104(1), Florida Statutes, that:

No action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or contract, unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate of counsel that such reasonable investigation gave rise to a good faith belief that grounds exist for an action against each named defendant.

(Emphasis supplied).

When these statutory provisions are considered with the other provisions of the Act relating to pre-suit notice and investigation, it becomes apparent that to be a claimant under the Act, the person presenting the claim must have received negligent medical care and treatment from a medical care provider that resulted in the person's injury or death. See § 766.203(2), Fla. Stat. (1999) (providing that a claimant under the Act has a cause of action for medical malpractice if that cause of action is based on "negligent ... care or treatment of the claimant" that "resulted in injury to the claimant"). If the person making the claim did not receive negligent medical care or treatment, the person does not qualify as a claimant under ...