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DELINEATING THE DISPARATE REQUIREMENTS OF PRESUIT NOTICE AND EXPERT CORROBORATION IN FLORIDA MEDICAL NEGLIGENCE CLAIMS
Barbara S. Diamond, Esquire and Scott D. Kirschbaum, Esquire
It is well established in Florida law that the presuit notice and screening requirements in medical negligence actions represent more than mere technicalities. In the case of Largie v. Gregorian, our firm represented an advanced registered nurse practitioner. Although the Plaintiffs timely sent our client a notice of intent letter, they attached the same expert affidavit that had been submitted to one of the physicians who was also sued in this case. However, this expert affidavit failed to make any mention of the nurse practitioner, and only expressed opinions against the physician. Although the Plaintiffs were put on notice of the affidavit's deficiency, they failed to rectify the inadequacy. After the Statute of Limitations expired, we submitted a Motion for Summary Judgment on the grounds that Plaintiffs failed to timely comply with the presuit requirements since their expert affidavit did not corroborate reasonable grounds to support the claim against our client. The Plaintiffs argued that the affidavit did not need to specifically name the nurse practitioner since the accompanying notice of intent letter clearly described her acts of negligence. The trial court granted our motion and Plaintiffs appealed.
After hearing oral argument, Florida's Third District Court of Appeals upheld the trial court's ruling. In so doing, the Court delineated the disparate requirements of presuit notice and expert corroboration. Pursuant to Florida Statute § 766.203, in initiating a medical negligence action, a claimant must determine whether reasonable grounds exist to believe that a healthcare provider acted negligently in the claimant's care and treatment, and that this negligence caused injury to the claimant. This requires both investigation and corroboration of the results of the investigation by a verified written medical expert opinion. The Court defined "investigation" to mean that an attorney has reviewed the case against each and every potential defendant and has consulted with a medical expert to obtain a corroborating written opinion. Requiring a written expert opinion assures that the claim was preceded by a reasonable investigation. The Court stated that the expert opinion provided to the nurse practitioner in this case failed to satisfy these purposes. It made no mention of the nurse practitioner whatsoever, either by name or job description; it made no reference to the standard of care applicable to a nurse practitioner or to any deviation from that standard of care, and it did not suggest, much less corroborate, that any investigation took place with regard to the nurse practitioner or that any reasonable grounds existed to support the claim against her. The expert affidavit may have been sufficient as to the physician named in it, but it failed to demonstrate any investigation as to the nurse practitioner. Thus, the Court found it was wholly insufficient.
Citing the Florida Supreme Court's decision in Kukral v. Mekras, the Third District Court of Appeals declared, "The expert opinion to be supplied is not one which delineates how the defendants were negligent . . . Obviously, the corroborative medical opinion adds nothing to the Plaintiffs' notice of their claim. It merely assures the Defendants, and the court, that a medical expert has determined that there is justification for the Plaintiffs' claim, i.e., that it is not a frivolous medical malpractice claim. The purpose of the medical expert opinion is to corroborate that the claim is legitimate, not to give notice of it . . . No party should be called on to defend at trial against allegations no competent witness can be found to support."
Of note, in the subsequent case of Bonati v. Allen, several physicians were named in the expert affidavit, but one of the physicians from the same group was not. The Second District Court of Appeals dismissed the case against the physician who was not specifically named, citing to the persuasiveness of Largie: "Just as the Largies' claim did not mention Nurse Wang, here, the expert affidavit relied on by Allen did not mention Dr. Bonati by name. Because Dr. Ogden's affidavit does not serve its purpose of corroborating that Dr. Bonati acted negligently toward Allen, the presuit investigation requirement has not been satisfied."
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