St. Mary's Hosp. v. Bell
| Decision Date | 06 June 2001 |
| Docket Number | No. 4D01-1509.,4D01-1509. |
| Citation | 785 So.2d 1261 |
| Parties | ST. MARY'S HOSPITAL, Petitioner, v. David W. BELL, as Personal Representative of the Estate of David W. Bell, Jr., Decedent, Respondent. |
| Court | Florida District Court of Appeals |
William T. Viergever of Sonneborn Rutter Cooney & Klingensmith, P.A., West Palm Beach, for petitioner.
No response required for respondent.
We dismiss the petition for writ of certiorari from an interlocutory order which, after a hearing, denied the petitioner hospital's motion to dismiss for failure to comply with the presuit requirements of chapter 766, Florida Statutes (2000).
Respondent is the personal representative of the estate of his child, who died in May, 1998, of bronchopneumonia. Counsel for the child's parents served on the hospital a notice of intent to initiate litigation pursuant to section 766.106(2). The notice alleged a failure to properly deliver medical care at the hospital's emergency room. Accompanying the notice was the affidavit of a physician citing the mother's claim that she took her child to the emergency room four to five days prior to his death.
The respondent's complaint alleged that the decedent's mother took him to the hospital on or about May 5, 1998. The hospital filed an amended motion to dismiss based on the plaintiffs failure to comply with the presuit requirements of section 766.106. The hospital argued that the respondent did not produce a copy of any hospital record supporting its assertion that the decedent had been taken to the hospital. The hospital contended that a search of its records uncovered nothing indicating that the decedent had ever been taken to the hospital. The hospital asserted that counsel for the respondent failed to make a reasonable investigation to determine whether there were grounds for a good faith belief that the hospital had been negligent in the care and treatment of the child.
At an evidentiary hearing, the hospital's witnesses testified around one theme— that the lack of records or documentation indicated that the decedent had never come to the hospital for treatment. The trial court denied the hospital's motion to dismiss.
Certiorari may lie from orders denying motions to dismiss for failure to comply with the presuit requirements of chapter 766 in medical malpractice actions. See, e.g., Citron v. Shell, 689 So.2d 1288, 1290 (Fla. 4th DCA 1997), disapproved on other grounds, Cohen v. Dauphinee, 739 So.2d 68 (Fla.1999); Cent. Fla. Reg'l Hosp. v. Hill, 721 So.2d 404, 405 (Fla. 5th DCA 1998). However, certiorari does not lie for appellate courts to reweigh the evidence presented concerning compliance with the presuit statutory requirements.
This case is analogous to Ortega v. Silva, 712 So.2d 1148 (Fla. 4th DCA 1998). There we ruled that certiorari was unavailable to review the sufficiency of the evidence to allow a claim for punitive damages under section 768.72, Florida Statutes (2000). Id. at 1149. We cited to Simeon, Inc. v. Cox, 671 So.2d 158 (Fl...
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Oken v. Williams
...when chapter 766 presuit requirements are at issue. Pearlstein v. Malunney, 500 So.2d 585 (Fla. 2d DCA 1986); St. Mary's Hosp. v. Bell, 785 So.2d 1261, 1262 (Fla. 4th DCA 2001); Okaloosa County v. Custer, 697 So.2d 1297, 1297 (Fla. 1st DCA 1997). The statutes requiring presuit notice and sc......
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...when chapter 766 presuit requirements are at issue. Pearlstein v. Malunney, 500 So.2d 585 (Fla. 2d DCA 1986); St. Mary's Hosp. v. Bell, 785 So.2d 1261, 1262 (Fla. 4th DCA 2001); Okaloosa County v. Custer, 697 So.2d 1297, 1297 (Fla. 1st DCA 1997). The statutes requiring presuit notice and sc......
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...on the ground that it expressly and directly conflicts with a decision of the Fourth District Court of Appeal in St. Mary's Hospital v. Bell, 785 So.2d 1261 (Fla. 4th DCA 2001), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, w......
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