www.rissman.com
TAMPA COMMONS
ONE NORTH DALE MABRY HIGHWAY
11TH FLOOR
TAMPA, FLORIDA 33609
TELEPHONE (813) 221-3114
TELECOPIER (813) 221-3033
TAMPA@RISSMAN.COM
201 EAST PINE STREET
15TH FLOOR
P.O. BOX 4940
ORLANDO, FLORIDA 32802-4940
TELEPHONE (407) 839-0120
TELECOPIER (407) 841-9726
ORLANDO@RISSMAN.COM
709 SEBASTIAN BOULEVARD
SUITE B
SEBASTIAN, FLORIDA 32958
TELEPHONE (772) 228-3228
TELECOPIER (772) 228-3229
SEBASTIAN@RISSMAN.COM

 

 

The 1st DCA in Lucante v. Kyker, 38 Fla. L. Weekly D1865b (Fla. 1st DCA August 30, 2013), reversed the trial court's dismissal of a medical malpractice lawsuit based on the plaintiff's failure to comply with the presuit investigation requirements set forth in Chapter 766, Fla. Stats. It ruled that defendants had waived their defense of non-compliance because they had not "specifically and with particularity" denied plaintiff's allegation that he had complied with all conditions precedent to bringing the lawsuit.

The trial court had agreed with defendants' argument that plaintiff had not complied with the presuit investigation requirements because the expert who had provided the affidavit to support plaintiff's notice of intent to initiate medical malpractice litigation did not practice in a "similar specialty" as defendants, as required by § 766.102(5), Fla. Stat. However, defendants had not specifically denied in their affirmative defenses that plaintiff had met all conditions precedent to bringing the lawsuit, including compliance with the presuit investigation requirements. According to the opinion, defendants had simply stated that they had no knowledge of whether the conditions precedent had been fulfilled.

The 1st DCA first pointed out that Florida law clearly holds that compliance with the presuit investigation requirements is a condition precedent to pursuing a medical malpractice action. It then ruled that if a defendant wishes to deny that a plaintiff has fulfilled a condition precedent necessary to pursue a medical malpractice action, he or she must do so "specifically and with particularity," citing Fla. R. Civ. P. 1.120(c). If a defendant fails to do so, then it waives any argument that plaintiff has not satisfied the condition precedent. A general denial is insufficient to meet this requirement.

Therefore, the 1st DCA ruled that defendants had waived their argument that plaintiff's expert did not qualify as an appropriate expert pursuant to § 766.102(5) because they had not denied "specifically and with particularity" that plaintiff had complied with all conditions precedent to bringing the action. The 1st DCA concluded that defendants' statement that they had no knowledge of whether plaintiff had met all conditions precedent did not qualify as a specific denial.

Although not specifically stated in opinion, the ruling implied that in order for defendants to preserve a presuit non-compliance argument, they must not only deny that the plaintiff complied with all conditions precedent, but must also specifically state the reasons for non-compliance, including the fact that plaintiff's presuit expert was not appropriately qualified as required by statute.



This summary was prepared by Skip Jewett of our firm.


Skip Jewett

 

 

38 Fla. L. Weekly D1865b

 

Wrongful death -- Medical malpractice -- Presuit requirements -- Defendants waived claim that plaintiff failed to comply presuit requirements by failing to deny satisfaction of preconditions specifically and with particularity -- Defendants' statement that they had no knowledge of whether conditions precedent to filing suit were fulfilled does not qualify as a specific denial

JERRY LUCANTE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MARILYN LUCANTE, DECEASED, Appellant, v. JAMES S. KYKER, M.D.; BRIAN J. ROAKE, M.D.; AND PANHANDLE ANESTHESIOLOGISTS, Appellees. 1st District. Case No. 1D12-3869. Opinion filed August 30, 2013. An appeal from the Circuit Court for Bay County. James B. Fensom, Judge. Counsel: Stephen H. Echsner of Aylstock, Witkin, Kreis & Overholtz, PLLC, Pensacola; and Harry Rein, Longwood, for Appellant. John M. Fite of Barron & Redding, P.A., Panama City; Jesse F. Suber, Laura Beth Faragasso, and E. Victoria Penny of Henry, Buchanan, Hudson, Suber & Carter, Tallahassee, for Appellees.

(PER CURIAM.) The appellant, Jerry Lucante, raises two issues on appeal. First, the appellant argues that its experts' affidavits fulfilled the "similar specialty" presuit compliance requirement of section 766.102(5), Florida Statutes. Second, the appellant argues that the appellees waived any issue regarding presuit compliance because the appellees failed to specifically plead these issues. Because the issue regarding waiver is dispositive, this Court declines to address the meaning of the phrase "similar specialty" found in section 766.102(5). We reverse the trial court's final judgment.

"Compliance with the statutory presuit requirements is a condition precedent for the filing of a medical malpractice action." Oliveros v. Adventist Health Sys./Sunbelt, Inc., 45 So. 3d 873, 875 (Fla. 2d DCA 2010) (citing to Ingersoll v. Hoffman, 589 So. 2d 223, 224 (Fla. 1991)). If a defendant wishes to deny that the plaintiff has fulfilled a condition precedent, he or she must do so "specifically and with particularity." Fla. R. Civ. P. 1.120(c); see also Ingersoll, 589 So. 2d at 224 (finding that a general denial is not sufficient to specifically deny a plaintiff's assertion that all conditions were met). Failure to do so results in the defendant waiving the argument that the plaintiff did not meet the condition precedent. Ingersoll, 589 So. 2d at 223; see also Buck Lake Alliance, Inc. v. Bd. of Cnty. Comm'rs of Leon Cnty., 765 So. 2d 124, 128 (Fla. 1st DCA 2000).

Here, the appellees failed to specifically deny the contention that the appellant had met all conditions precedent to filing the lawsuit. While they did state they had no knowledge of whether these conditions were fulfilled, this does not qualify as a specific denial. Because the appellees failed to deny the satisfaction of preconditions specifically and with particularity, the appellees could not later assert that a condition precedent had not been met. See Ingersoll, 589 So. 2d at 225; see also Fla. Hosp. Waterman v. Stoll, 855 So. 2d 271, 277 (Fla. 5th DCA 2003) (finding the adequacy of corroborating expert reports in a medical negligence claim is waived if the answer does not specifically argue adequacy and is not later amended). As a result, the appellees' argument regarding presuit compliance was waived. Accordingly, we reverse the trial court's final judgment entered pursuant to the order granting the motions to dismiss and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED. (WOLF, ROBERTS, and RAY, JJ., CONCUR.)



* * *