University of Miami v. Wilson, No. 3D04-2939.

CourtCourt of Appeal of Florida (US)
Writing for the CourtRothenberg
Citation948 So.2d 774
PartiesUNIVERSITY OF MIAMI, Petitioner, v. Lisa WILSON, etc., et al., Respondents.
Docket NumberNo. 3D04-2939.
Decision Date21 June 2006
948 So.2d 774
UNIVERSITY OF MIAMI, Petitioner,
v.
Lisa WILSON, etc., et al., Respondents.
No. 3D04-2939.
District Court of Appeal of Florida, Third District.
June 21, 2006.
Order Denying Rehearing En Banc February 28, 2007.

[948 So.2d 775]

Fowler White Burnett and Marc J. Schleier and June Galkoski Hoffman, Miami; George Hartz, Lundeen, Fulmer, Johnstone, King & Stevens, and Arthur Lundeen, South Miami, for petitioner.

Hersch & Talisman and Patrice A. Talisman, Miami, for respondents.

Before WELLS, SHEPHERD, and ROTHENBERG, JJ.

ROTHENBERG, Judge.


In this petition for writ of certiorari, the University of Miami ("University") is seeking to quash the trial court's order denying its motion to dismiss a wrongful death action filed against it by the decedent's daughters, Lisa Wilson and Keisha Salmon, based upon their failure to comply with the medical malpractice presuit notice requirements.

On October 11, 2002, Marjorie Salmon-Graham died intestate as a result of breast cancer. On September 11, 2003, her daughters, Lisa Wilson and Keisha Salmon, served the University and others with a presuit notice of intent to initiate litigation for medical malpractice. The daughters subsequently filed a wrongful death action against the University and other defendants, alleging that their failure to diagnose Ms. Salmon-Graham's breast cancer resulted in her death. The caption of the wrongful death complaint described the plaintiffs as "LISA WILSON and KEISHA SALMON as nominated Co-Personal Representatives and/or any duly appointed Personal Representative(s) of the ESTATE OF MARJORIE SALMON-GRAHAM, deceased."

The University moved to dismiss the complaint, arguing that because the notice of intent to initiate litigation was not served by a duly appointed personal representative of the decedent's estate, it failed to satisfy the medical malpractice presuit notice requirement of Chapter 766, Florida Statutes (2002), a condition precedent to maintaining an action for medical malpractice, and was, therefore, a nullity. At the hearing on the motion to dismiss, Ms. Wilson and Ms. Salmon's attorney informed the court that the daughters, who had already initiated the process to be appointed as the personal representatives of their mother's estate, were expected to be appointed "within a week or two." The trial court denied the University's motion to dismiss, and Ms. Wilson and Ms. Salmon were subsequently appointed as co-personal representatives of their mother's estate.

In its petition for writ of certiorari, the University claims that the trial court's denial of its motion to dismiss was a departure from the essential requirements of the law. The University asserts that the plaintiffs did not comply with the medical malpractice presuit notice requirement because the notice must be filed by a claimant who received negligent medical care or by the personal representative of the person who received the negligent medical care. The University alleges that this requirement was not met in the instant case

948 So.2d 776

because Ms. Wilson and Ms. Salmon were not "claimants" pursuant to sections 766.106(2) and 766.202(1) of Florida's Medical Malpractice Act ("Act"), and had not been appointed as personal representatives at the time they served their notice. Ms. Wilson and Ms. Salmon argue that (1) their notice, which placed the University on notice of the alleged malpractice and provided the University with the opportunity to investigate the allegations, satisfied the purpose and intent of the statute, and (2) as named personal representatives, they should not be precluded from pursuing a claim on behalf of the estate, as their appointment relates back in time, validating the actions that they took prior to their appointment.

Our review of the trial court's disposition of the motion to dismiss is de novo. Apostolico v. Orlando Reg'l Health Care Sys., Inc., 871 So.2d 283, 286 (Fla. 5th DCA 2004). The question we must answer in this petition is whether, as a matter of law, a medical malpractice presuit notice is invalid when it is served by persons who were not personal representatives when the notice was served, but are subsequently appointed.

The medical malpractice presuit notice requirement is found in section 766.106(2), Florida Statutes (2002), which provides, in pertinent part:

prior to filing a claim for medical negligence, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical malpractice.

"Timely written notice of intent to initiate litigation is a condition precedent to maintaining a medical malpractice action." Patry v. Capps, 633 So.2d 9, 11 (Fla.1994).

On September 11, 2003, Ms. Wilson and Ms. Salmon, the decedent's surviving daughters, noticed the University regarding their intent to pursue a wrongful death medical malpractice claim against it for the death of their mother, by sending the University a Notice of Intent to Initiate Litigation, as required pursuant to section 766.106(2), Florida Statutes (2002). The notice informed the University that they were the survivors of the deceased and of the basis for their negligence claim.

There are certain requirements which must be met before issuing a notification of intent to initiate medical malpractice litigation. Prior to filing a complaint, the plaintiff must conduct an investigation to determine if a named defendant was in fact negligent and that such negligence resulted in the claimed injury, and obtain corroboration by a medical expert, along with a verified written opinion from the medical expert, supporting the claim of medical negligence. Apparently, these requirements were satisfied, as the University has made no claim that they were not. Additionally, the Act requires that, upon receiving the notice, the medical provider must conduct an investigation to determine the reasonableness of the plaintiff's claim and obtain corroboration prior to rejecting the claim. While the record and briefs are silent as to whether the University satisfied its obligations and whether it rejected the claim, we must assume it did, as the plaintiffs filed suit and these issues have not been raised by either party.

Despite the fact that Ms. Wilson and Ms. Salmon conducted the requisite investigation, obtained the necessary corroborating verified medical expert opinion, and gave the University notice of their intent to file a medical malpractice claim; despite the fact the University conducted its own investigation and rejected the reasonableness of the claim; and despite the fact that Ms. Wilson and Ms. Salmon timely filed their complaint and were ultimately appointed

948 So.2d 777

as personal representatives of the estate; the University and the dissent argue that the complaint should be dismissed, now that the statute of limitations has run, because the daughters were not "claimants" or personal representatives at the time they noticed the University. We disagree.

The policy underlying the medical malpractice statutory scheme is to require the parties to engage in meaningful presuit investigation, discovery, and negotiations, thereby screening out frivolous lawsuits and defenses and encouraging the early determination and prompt resolution of claims. Kukral v. Mekras, 679 So.2d 278, 284 (Fla.1996). The presuit notice provides notice to the medical provider and requires an investigation of the matter, in an effort to encourage presuit settlements. Otto v. Rodriguez, 710 So.2d 1, 2 (Fla. 4th DCA 1998); Fort Walton Beach Med. Ctr., Inc. v. Dingler, 697 So.2d 575, 579 (Fla. 1st DCA 1997); Chandler v. Novak, 596 So.2d 749, 750 (Fla. 3d DCA 1992). The University argues that, because the legislative purpose of the Act is to promote presuit settlement, we must interpret section 766.106(2) to require that the notice of intent to initiate litigation be served by a person who had already been appointed as a personal representative because only a personal representative has the power to settle an action for wrongful death. See Saia Motor Freight Line, Inc. v. Reid, 888 So.2d 102, 103 (Fla. 3d DCA 2004)(stating that only personal representatives have the authority to settle a wrongful death action); Thompson v. Hodson, 825 So.2d 941, 949 (Fla. 1st DCA 2002)(explaining that, by statute, a wrongful death claim is brought by only one plaintiff — the personal representative of the estate of the deceased). The University argues that, because Ms. Wilson and Ms. Salmon were not personal representatives at the time they served the notice, the University could not settle the claim with them.

Both the Florida Supreme Court and this court have held that when interpreting section 766.106(2) regarding presuit notice, we must not unduly restrict the access to the courts guaranteed by the Florida constitution in carrying out the legislative purpose of the Act. Kukral, 679 So.2d at 284; see also Patry, 633 So.2d at 13 ("[W]hen possible, the pre-suit notice and screening statute should be construed in a manner that favors access to courts."); Garay v. Colony Springs Med. Ctr., Inc., 731 So.2d 849 (Fla. 3d DCA 1999)(declining to adopt a hyper-technical view of section 766.106, which would impermissibly infringe upon the constitutional right of access to the courts).

Ms. Wilson and Ms. Salmon argue that, because they were ultimately appointed personal representatives, their powers as personal representatives should relate back, thereby validating the actions they took prior to their appointment. We agree as there is both statutory and case law support for such a finding. Chapter 733 of the Florida Statutes is the Probate Code and deals with the administration of estates. Section 733.601, Florida Statutes (2002), specifically provides that

The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person...

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23 practice notes
  • Ortiz v. State, No. 5D08-1653.
    • United States
    • Court of Appeal of Florida (US)
    • November 13, 2009
    ...and negatively influence the public's perception of the judiciary's ability to render meaningful justice." Univ. of Miami v. Wilson, 948 So.2d 774, 791 (Fla. 3d DCA 2006) (Shepherd, J., We are also mindful of opinions from the federal circuit court of appeals in making this determination. T......
  • Tracey v. Wells Fargo Bank, N.A., Case No. 2D16-5091
    • United States
    • Court of Appeal of Florida (US)
    • February 27, 2019
    ...negatively impact "the public's perception of the judiciary's ability to render meaningful justice" (quoting Univ. of Miami v. Wilson, 948 So.2d 774, 791 (Fla. 3d DCA 2006) ) ). Accordingly, I would also grant Tracey's motion for rehearing en banc.--------Notes:1 At the same time, several c......
  • Markland v. Insys Therapeutics, Inc., Case No. 3:16–cv–997–J–34PDB
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • September 15, 2017
    ...to the initiation of the wrongful death proceeding. See Griffin v. Workman, 73 So.2d 844, 846–847 (Fla. 1954) ; Univ. of Miami v. Wilson, 948 So.2d 774, 777–778 (Fla. Dist. Ct. App. 2006) ; Bermudez v. Florida Power & Light Co., 433 So.2d 565, 566 (Fla. Dist. Ct. App. 1983). See also FLA. S......
  • Leslie v. Carnival Corp., No. 3D06-2228.
    • United States
    • Florida District Court of Appeals
    • November 25, 2009
    ...fails to meet the threshold for rehearing en banc as required by Florida Rule of Appellate Procedure 9.331. See Univ. of Miami v. Wilson, 948 So.2d 774, 790-91 (Fla. 3d DCA 2006) (Shepherd, J., concurring). Having been obviously unpersuasive on this point, I proceed to the 3. The Savings to......
  • Request a trial to view additional results
23 cases
  • Ortiz v. State, No. 5D08-1653.
    • United States
    • Court of Appeal of Florida (US)
    • November 13, 2009
    ...and negatively influence the public's perception of the judiciary's ability to render meaningful justice." Univ. of Miami v. Wilson, 948 So.2d 774, 791 (Fla. 3d DCA 2006) (Shepherd, J., We are also mindful of opinions from the federal circuit court of appeals in making this determination. T......
  • Tracey v. Wells Fargo Bank, N.A., Case No. 2D16-5091
    • United States
    • Court of Appeal of Florida (US)
    • February 27, 2019
    ...negatively impact "the public's perception of the judiciary's ability to render meaningful justice" (quoting Univ. of Miami v. Wilson, 948 So.2d 774, 791 (Fla. 3d DCA 2006) ) ). Accordingly, I would also grant Tracey's motion for rehearing en banc.--------Notes:1 At the same time, several c......
  • Markland v. Insys Therapeutics, Inc., Case No. 3:16–cv–997–J–34PDB
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • September 15, 2017
    ...to the initiation of the wrongful death proceeding. See Griffin v. Workman, 73 So.2d 844, 846–847 (Fla. 1954) ; Univ. of Miami v. Wilson, 948 So.2d 774, 777–778 (Fla. Dist. Ct. App. 2006) ; Bermudez v. Florida Power & Light Co., 433 So.2d 565, 566 (Fla. Dist. Ct. App. 1983). See also FLA. S......
  • Leslie v. Carnival Corp., No. 3D06-2228.
    • United States
    • Florida District Court of Appeals
    • November 25, 2009
    ...fails to meet the threshold for rehearing en banc as required by Florida Rule of Appellate Procedure 9.331. See Univ. of Miami v. Wilson, 948 So.2d 774, 790-91 (Fla. 3d DCA 2006) (Shepherd, J., concurring). Having been obviously unpersuasive on this point, I proceed to the 3. The Savings to......
  • Request a trial to view additional results

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