Suarez v. St. Joseph's Hosp., Inc., 93-02074
| Decision Date | 23 March 1994 |
| Docket Number | No. 93-02074,93-02074 |
| Parties | 19 Fla. L. Weekly D689 Julieta SUAREZ, Appellant, v. ST. JOSEPH'S HOSPITAL, INC., a Florida Corporation, Appellee. |
| Court | Florida District Court of Appeals |
Michael S. Reeser, Bugg, Dayton & Reeser, P.A., Clearwater, for appellant.
T. Paine Kelly, Jr. and Thomas Michael Hoeler, Shear, Newman, Hahn & Rosenkranz, P.A., Tampa, for appellee.
Appellant, Julieta Suarez, seeks review of the final judgment that dismissed her negligence action against appellee, St. Joseph's Hospital, Inc., for failing to follow the medical malpractice presuit screening procedures contained in chapter 766, Florida Statutes (1989). We reverse and remand because we conclude that St. Josephs' motion to dismiss should have been granted, if at all, with the right for Suarez to amend her pleadings and attempt compliance with section 766.203(2)(b), Florida Statutes (1989).
St. Joseph's moved to dismiss on the following three grounds: (1) Suarez's failure to submit to St. Joseph's the verified, written, medical expert opinion as required by section 766.203(2)(b); (2) the failure of the unverified medical opinion submitted to St. Joseph's to specify whether any previous opinion by the same medical expert had been disqualified and, if so, the name of the court and the case number in which the ruling was issued; and (3) the failure of the complaint to contain a certificate of counsel that a reasonable investigation gave rise to a good faith belief that grounds exist for an action against St. Joseph's. In granting St. Josephs' motion to dismiss, the court stated:
And it appearing to the Court that the period of the statute of limitations for this action has expired, and that it is too late for Plaintiff to comply with the pre-suit screening statutes of the State of Florida governing actions for medical malpractice, that Final Judgment be, and the same is hereby, entered in favor of the Defendant, ST. JOSEPH'S HOSPITAL, INC., a corporation not-for-profit of Florida, and against the Plaintiff, JULIETA SUAREZ, and that said Defendant go hence without day and without assessment of costs against Plaintiff.
Among other things, the chapter 766 presuit screening procedures for medical negligence require the attorney who is filing the action to make a reasonable investigation to ensure that there are "grounds for a good faith belief that there has been negligence," and to include a certificate to that effect in the complaint. Sec. 766.104(1), Fla.Stat. (1989). This good faith belief may be shown by the written medical opinion of an expert that there "appears to be evidence of medical negligence." Id. As additional corroboration, the claimant must submit to the defendant, along with the notice of intent to initiate litigation, a verified written medical expert opinion that reasonable grounds for the action exist. Sec. 766.203(2)(b).
Suarez's complaint, filed June 10, 1992, and signed by her counsel, alleged essentially that St. Joseph's was negligent in failing to properly safeguard Suarez after admitting her to the hospital because, while awaiting diagnostic procedures, she fell from a stretcher or examining table and fractured her hip.
In addition to the allegations of negligence, the complaint contained the following paragraphs:
3. All conditions precedent as set forth in Chapter 766 and 768, Florida Statutes, for the filing of a medical malpractice action have been complied with, including but not limited to service of a Notice to Initiate Litigation and written medical expert opinion, copies of which are attached hereto as composite Exhibit A and B, respectively.
....
14. The undersigned attorneys have made a reasonable investigation as permitted by the circumstances and have determined that there are grounds for a good faith belief that there has been negligence in the care and treatment of the Plaintiff by the Defendant.
Exhibit B, attached to the complaint, was a letter from Dr. David R. Lehrer of St. Petersburg to Suarez's attorney, stating as follows:
At your request, I have reviewed the medical records from St. Joseph's Hospital, Tampa, Florida, for Julieta M. Suarez, of 2109 Two Lakes Road, Apt. T1, Tampa, Florida, relative to her admission to that facility of November 11, 1990. The records indicate that Mrs. Suarez was seen in the hospital emergency room on that date complaining of left shoulder pain radiating down the left arm and lateral aspect. She was admitted directly to the hospital from the emergency room. While left unattended and apparently unrestrained on a stretcher, she was permitted to fall resulting in a fractured right hip, which necessitated extensive surgical procedures. The patient subsequently had complications from such surgery which extended her hospitalization and required further medical treatment thereafter.
Based upon my review of the file, I believe that there are reasonable grounds to believe...
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