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Florida Third DCA rules that trial court erred in not addressing defendant’s argument that medical negligence plaintiff failed to follow pre-suit requirements by not submitting expert medical affidavit

On March 17, 2021, in Dial 4 Care, Inc., v. Brinson, et al., No. 3d20-1644, the Florida Third DCA granted a medical negligence defendant’s certiorari petition and quashed a trial court order dismissing the defendant’s motion to dismiss the complaint. The defendant maintained that the plaintiff had not complied with the medical negligence pre-suit requirements because an expert affidavit mandated under Fla. Stat. § 766.202(5) had not been submitted with the Notice of Intent to Initiate Litigation or at any time during the statutory pre-suit period. The defendant additionally argued that the plaintiff had not conducted a reasonable investigation to determinethat there are grounds for a good faith belief that there has been negligence in the care or treatment of the plaintiff as required under Fla. Stat. § 766.104(1). The plaintiff argued in response that he was not required to provide an expert affidavit in pre-suit because the defendant had failed to respond to several document requests, citing to numerous cases supporting the proposition that failure to turn over documents within 10 days of a records request under Fla. Stat. § 766.204 waives the claimant’s requirement to provide a corroborating affidavit. However, the Third DCA noted that the plaintiff’s initial request for medical records occurred only one day before the service of the Notice of Intent to Initiate Litigation, raising the issue of whether the failure to provide the records can excuse the alleged lack of a reasonable investigation by the plaintiff preceding the pre-suit. Under these circumstances, the Third DCA concluded that the trial court was in error in summarily denying the defendant’s motion to dismiss without making any explicit findings regarding the records requests and the plaintiff’s compliance with the pre-suit requirements. The Third DCA noted, however, that the failure to provide a corroborating affidavit contemporaneously with the notice of intent to initiate litigation letter need not result in dismissal of the action if the plaintiff provides the affidavit before the expiration of the statute of limitations, in which the case the deficiency with the notice letter is cured. See Kukral v. Mekras, 679 So. 2d 278, 280 (Fla. 1996). As a result of the Third DCA’s decision, the survival of this action may depend on whether the statute of limitations has already lapsed.