Wolford v. Boone, 5D03-556.
| Decision Date | 14 May 2004 |
| Docket Number | No. 5D03-556.,5D03-556. |
| Citation | 874 So.2d 1207 |
| Parties | Katherine D. WOLFORD and Barry Wolford, husband and wife, Petitioners, v. Scott A. BOONE, M.D. and Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital, Respondents. |
| Court | Florida District Court of Appeals |
Desiree E. Bannasch, Orlando, for Petitioners.
Patrick H. Telan and Jack E. Holt, III, of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Respondent, Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital. Michael A. Estes and Eric P. Gibbs, of Hannah, Estes & Ingram, P.A., Orlando, for Respondent, Scott A. Boone, M.D.
Katherine D. Wolford and her husband, Barry Wolford ["the Wolfords"], plaintiffs below, seek certiorari review of the circuit court order denying their motion to strike the responsive pleadings of the defendants below, Scott A. Boone, M.D., and Adventist Health System/Sunbelt, Inc., doing business as Florida Hospital ["Respondent"]. For the reasons that follow, we grant the writ, in part.
On May 26, 1999, Dr. Boone performed a laproscopically assisted vaginal hysterectomy and vaginal cuff suspension on Katherine Wolford while she was a patient at Loch Haven OB/GYN Group, which is owned and operated by Florida Hospital. When she continued to experience pain, numbness and sexual dysfunction, Dr. Boone performed an exploratory laparotomy and surgical repair with removal of Katherine's ovaries. However, Katherine continued to suffer pain and injuries and retained counsel to file a medical malpractice action.
On January 6, 2000, Katherine's counsel requested her medical records in a letter addressed to Loch Haven OB/GYN, to the attention of Dr. Boone and Dr. Frederick Hoover. When there was no response, a second letter was sent on February 24, 2000, noting that the requested documents had not been received. Again, no response was received.
On March 7, 2000, the Wolfords' counsel sent notices of intent to initiate litigation by certified mail, return receipt requested, to Dr. Boone and to Loch Haven.1 A third request for Katherine's medical records was included. Also included were other requests for presuit discovery, including a request to take the unsworn statement of Dr. Boone at 10:00 a.m. on March 29. The notice requested an alternative date or time if the one chosen were inconvenient. The return receipts were signed for on March 9, 2000, by a Florida Hospital employee assigned to Loch Haven. Dr. Boone acknowledged receiving the notice of intent package, and he testified that he forwarded it to risk management. He was not thereafter contacted by risk management, and he did not contact risk management to follow up.
On March 10, 2000, Katherine's medical records were finally forwarded to her attorney. However, no other response to the notice of intent was received, so the Wolfords' attorney faxed another letter to Dr. Boone on March 27, 2000, to remind him of the scheduled unsworn statement. Receipt was confirmed by facsimile printout. The same letter was also sent Federal Express Overnight to Dr. Boone and was signed for by the same employee on March 28, 2000. Nonetheless, Dr. Boone failed to respond to the letter, and he failed to appear for his unsworn statement. Although he admitted receiving the March 7, 2000, notice of intent package, he claimed not to know his statement was noticed for March 29 until he received the March 27 letter.
Two hours after the scheduled statement was to take place, Dr. Boone contacted the Wolfords' attorney. He said he had "just read" the March 27 letter from the Wolfords' attorney and that obviously he would not be able to appear as indicated because the hour had passed. Dr. Boone claimed he offered to reschedule his statement, but Katherine's counsel denied this. Dr. Boone was advised by Katherine's counsel to contact his insurance company regarding the notice of claim and notice of intent, and a follow-up letter was mailed to him confirming this advice. Again, the receipt for the letter was signed by the same employee. No further communication was received from Dr. Boone or anyone representing him.
In June 2000, suit was filed by the Wolfords against Dr. Boone and Loch Haven OB/GYN Group. A second amended complaint was later filed against Adventist Health System/Sunbelt, Inc., doing business as Florida Hospital.
Answers and affirmative defenses were filed on behalf of respondents, denying liability. Dr. Boone also alleged as an affirmative defense that his failure to respond to presuit notices was the result of mistake, inadvertence and/or excusable neglect. Adventist alleged as an affirmative defense that it was never directly placed on notice of intent to initiate litigation and therefore could not be sanctioned as a result of any failure to participate in presuit discovery on the part of Dr. Boone.
At his deposition, Dr. Boone stated that he recalled seeing the January 6, 2000, letter and had instructed some employee to provide the requested medical records. When he received the second letter, he says he alerted someone that the records had not been sent. He also acknowledged seeing the notice of intent and said that he forwarded the notice by interoffice mail to the risk management office and then waited for instructions from them. Dr. Boone made a similar allegation in his response to the request for admissions, stating that his conduct was based on mistake, inadvertence and excusable neglect. Florida Hospital admitted in its response to the request for admissions that correspondence and a notice of intent had been sent to Loch Haven, but claimed that it had never received any records request addressed to it. However, Florida Hospital did admit that Dr. Boone was its employee.
The Wolfords filed a motion to strike respondents' pleadings. The Wolfords argued that respondents had failed to timely provide medical records, that Dr. Boone had failed to attend the scheduled unsworn statement, and that respondents had failed to conduct a presuit investigation, as required by law. Accordingly, the Wolfords argued that section 766.206(3),...
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