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Florida Third DCA quashes trial court order denying medical negligence defendant’s motion to dismiss case based on plaintiff’s alleged failure to comply with statutory presuit requirements

On April 20, 2022, in University of Miami, etc. v. Jones, etc., No. 3D22-0046, the Florida Third DCA granted a medical negligence defendant’s certiorari petition and quashed a trial court order denying the defendant’s motion to dismiss the complaint for failure to comply with Chapter 766’s presuit requirements for medical malpractice actions. The plaintiff had not submitted the required expert’s affidavit as part of her notice of intent to initiate litigation (“NIIL”) to the defendant, relying on § 766.204(2), which waives this requirement if the defendant has not timely provided medical records to the plaintiff. The Third DCA did not address the merits of the waiver issue, although the Third DCA did note that an informal discovery request contained within the NIIL does not implicate a section 766.204(2) waiver, citing Brundage v. Evans, 295 So. 3d 300, 304-05 (Fla. 2d DCA 2020). The Third DCA instead focused on the defendant’s separate allegation that the NIIL itself was facially defective, quoting from Duffy v. Brooker, 614 So. 2d 539, 545 (Fla. 1st DCA 1993): “In order to comply with the spirit and intent of the statute, . . . the notice of intent to initiate litigation and the corroborating medical expert opinion, taken together, must sufficiently indicate the manner in which the defendant . . . allegedly deviated from the standard of care, and must provide adequate information for the defendant[] to evaluate the merits of the claim.” The Third DCA noted that the trial court had refused the defendant’s request for an evidentiary hearing, stating that “often” such a hearing is conducted and citing Holden v. Bober, 39 So. 3d 396, 402 (Fla. 2d DCA 2010). The Third DCA did not indicate whether it considered an evidentiary hearing necessary in this case and instead simply stated that the trial court’s entry of an order denying the motion “without explication” was erroneous.

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