Wilkinson v. Golden
| Decision Date | 28 January 1994 |
| Docket Number | No. 92-04705,92-04705 |
| Citation | 630 So.2d 1238 |
| Parties | 19 Fla. L. Weekly D227 Cheryl Lange WILKINSON, Appellant, v. Edward E. GOLDEN, Jr., D.D.S., Appellee. |
| Court | Florida District Court of Appeals |
James Schwartz, Clearwater, for appellant.
James B. Thompson and Margaret Teresa Harris of The Thompson Law Group, St. Petersburg, for appellee.
Cheryl Lange Wilkinson appeals the dismissal of her complaint alleging dental malpractice by Edward E. Golden, Jr., D.D.S. The trial court dismissed the complaint on a finding that Wilkinson intentionally withheld information in violation of the presuit discovery requirements governing medical and dental malpractice actions. We reverse because we conclude that at the time Wilkinson withheld information she was under no statutory duty to engage in presuit discovery.
In 1988, the Florida Legislature adopted sections 766.201 through 766.212, Florida Statutes (Supp.1988, and strengthened section 766.106. 1 These changes were enacted with the stated intent of providing a plan for the prompt resolution of medical malpractice claims. The legislature found that the cost of malpractice claims could be substantially reduced by requiring an early determination of the merits of claims. As this court has held, however, "[t]hese provisions were not intended to require presuit litigation of all the issues in medical negligence claims nor to deny parties access to the court on the basis of technicalities." Ragoonanan v. Associates in Obstetrics, 619 So.2d 482, 484 (Fla. 2d DCA 1993.
In a medical malpractice action, the statute requires a presuit investigation by the claimant to ascertain that there are reasonable grounds to believe the claimant was injured by the negligence of a medical provider. As a component of this presuit investigation, the claimant must obtain an expert medical opinion corroborating such injury. Sec. 766.203(2, Fla.Stat. (1991. The claimant must then notify the prospective defendant, by certified mail, of the intent to initiate litigation. Sec. 766.106(2. The defendant has 90 days from this notice to determine if there are reasonable grounds to believe the claimant was not injured by the defendant's negligence. Sec. 766.106(3. During this period, the parties are required to cooperate in "informal" discovery. Sec. 766.205. The claimant is allowed to file a lawsuit only after the 90 days has expired or after the defendant has denied the claim. Sec. 766.106(3.
A party's lack of good faith cooperation in the informal discovery may result in sanctions. Sec. 766.205(3. As this court has held, however, only unreasonable conduct justifies the severe sanction of dismissing a claim. And even then, dismissal would not be mandatory. 619 So.2d at 484. Ragoonanan provides guidance to trial courts when considering if sanctions, including dismissal, should be imposed for statutory violations. To decide if a sanction is warranted, the court must first determine that a statute has been violated.
We now turn to the facts in this case. On December 3, 1991, Wilkinson's attorney wrote to Golden's malpractice carrier and requested that it informally handle Wilkinson's malpractice claim. Replying on behalf of Golden and the malpractice carrier, Golden's attorney denied the request and insisted that Wilkinson follow the formal statutory requirements. The letter was accompanied by a request for information entitled "Response to Plaintiff's Notice of Intent." The letter and request for information were dated December 17, 1991.
This "Response to Plaintiff's Notice of Intent" was divided into ten separate items. Item two requested all of Wilkinson's health care providers for the preceding ten years. On January 22, 1992, Wilkinson's attorney answered five of the ten requests. This answer included information pertaining to item two, but provided the health care providers for only the immediately preceding five years, rather than ten. If the response had spanned ten years, it would have revealed that Wilkinson had been treated by another dentist against whom she had brought a malpractice action.
Wilkinson's attorney closed the response letter by acknowledging that certain items were not included, but he advised that Wilkinson was available for "presuit investigation" and offered further "documentation/information" if needed to evaluate the claim. Although there were further communications and correspondence between the parties after the January 22 letter, Golden made no additional requests for information nor did he demand answers to the remaining questions.
On March 16, 1992, Wilkinson mailed a "Notice of Intent to Initiate an Action for Dental Malpractice." Golden does not assert any impropriety with this notice. Golden denied the claim on April 17, 1992, and Wilkinson filed suit on June 15, 1992.
Golden filed a motion to dismiss the complaint based in part on Wilkinson's failure to properly respond to the letter of December 17, 1991. Golden also filed interrogatories which were answered after a motion to compel and apparently included all of the information allegedly missing from the response to the December 17 letter. The record reflects that Golden had made no requests for information following the notice until the filing of these interrogatories. After the interrogatories were answered, a hearing was held on the motion to dismiss.
At the hearing on the motion to dismiss, Golden argued that Wilkinson intentionally evaded the informal presuit discovery mandated by statute when she failed to furnish medical records or list the dentist from whom she had obtained treatment and subsequently sued for malpractice. He also argued that her failure to answer the interrogatories until compelled to do so was additional evidence of her intentional evasion.
In addition to argument of counsel at the hearing, Wilkinson was allowed to present her testimony. Wilkinson testified that she had mistakenly furnished the names of health care providers for a five-year period because it was the only question of several in which the informational period was ten...
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