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Florida Second DCA finds that plaintiff failed to comply with medical negligence presuit requirements by failing to timely provide expert affidavit to defendant doctor

On March 18, 2020, in Brundage v. Evans, No. 2D19-1441, the Florida Second DCA quashed a trial court’s order denying the defendant medical providers’ motion to dismiss a plaintiff’s medical negligence complaint on the grounds that the plaintiff failed to comply with the presuit screening requirements of chapter 766, Florida Statutes. After making repeated requests for the patient’s medical records from the defendant hospital without receiving all the records, the plaintiff had filed a presuit Notice of Intent to Initiate Litigation (“NIIL”) to the hospital on February 15, 2016, subsequently finally receiving all the records on April 4, 2016. The NIIL to the hospital did not include the affidavit from an expert required under the presuit statute. .Five months later, on September 23, 2016, the plaintiff sent a NIIL to the co-defendant doctor whose alleged negligence was the basis for the vicarious liability claim against the hospital. The NIIL again did not included the expert affidavit required under the statute and instead asserted that the affidavit requirement had been waived under Section 766.204(2) due to the hospital’s failure to provide the medical records in a timely fashion. The NIIL to the doctor included a records request that was not responded to by the defendant doctor until November 15, 2016. That same day, the plaintiff filed a lawsuit against the doctor and the hospital. Five days later, on September 28, 2016, the plaintiff obtained an expert opinion attesting to the doctor’s negligence but did not provide it to the defendants. After the defendants subsequently moved for dismissal of the indictment due to the plaintiff’s failure to provide the expert affidavit, the trial court denied the motion on the basis that the expert affidavit had in fact been waived due to the failure to the defendants to produce the medical records to the plaintiff in a timely manner under the statute. The Second DCA concluded that the trial erred in this finding, concluding that the waiver provision of Section 766.204(2) only applies to medical records requests made before the filing of the NIIL (thereby making the provision inapplicable to the doctor’s NIIL). The Second DCA additionally noted that the hospital’s previous failure to provide the plaintiff’s medical records did not waive the affidavit requirement as it applied to the doctor’s NIIL, citing Tapia-Ruano v. Alvarez, 765 So. 2d 942,943-44 (Fla. 3d DCA 2000) (holding that the failure by a hospital to provide medical records could not be imputed to a doctor). The Second DCA cited precedent for allowing a plaintiff to cure a failure to provide an expert affidavit but noted that this is conditional upon the affidavit being provided within the statute of limitations period, a requirement not met in this case. See Kukral v. Mekras, 679 So. 2d 278, 283 (Fla. 1996); Stebilla v. Mussallem, 595 So. 2d 136, 139 (Fla. 5th DCA 1992); Suarez v. St. Joseph's Hosp., Inc., 634 So. 2d 217, 219 (Fla. 2d DCA 1994). It is not clear from the Second DCA’s decision why the NIIL to the hospital was considered similarly defective, given that the hospital’s failure to produce records preceded the to NIIL to the hospital.