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In Bery v. Fahel, 39 Fla. L. Weekly D1397b (Fla. 3d DCA July 2, 2014), Bery appealed a final order of dismissal for failure to comply with the medical malpractice presuit requirements. The estate had submitted the affidavit of Mark Khilnani, M.D. to serve as the required medical expert opinion corroborating its claim against Dr. Fahel. The 3d DCA had previously reversed the trial court's initial order dismissing for failure to comply with presuit requirements and had remanded for an evidentiary hearing.

Upon remand, the trial court held an evidentiary hearing and again entered a final order dismissing the case on the basis that Dr. Khilnani was not qualified to act as an expert witness against Dr. Fahel. No specific reasons were listed in the opinion regarding the trial court's conclusions.


 

This summary was prepared by Art Young of our firm.


Art Young

 

 



39 Fla. L. Weekly D1397b

 

Wrongful death -- Medical malpractice -- Presuit requirements -- Evidence supported trial court's finding that plaintiff's medical expert is not qualified to act as expert witness against defendant -- No error in dismissing action for failure to comply with medical malpractice presuit requirements

YURI BERY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JULIANA BERY, et al., Appellants, vs. GHASSAN FAHEL, D.O., Appellee. 3rd District. Case No. 3D13-2291. L.T. Case No. 09-35784. Opinion filed July 2, 2014. An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge. Counsel: Austin & Laurato, P.A., and Laura Datz and Michael V. Laurato (Tampa), for appellants. Fann & Petruccelli, P.A., and Michael A. Petruccelli, and Steven A. Osher (Fort Lauderdale); Hicks, Porter, Ebenfeld & Stein, P.A., and Dinah Stein and Erik P. Bartenhagen, for appellee.

(Before WELLS, LOGUE, and SCALES, JJ.)

(LOGUE, Judge.) Yury Bery, as personal representative of the estate of Juliana Bery, and others (collectively, "the estate") appeal a final order of dismissal for failure to comply with medical malpractice presuit requirements. As part of its presuit investigation, the estate submitted an affidavit of Mark Khilnani, M.D., to serve as the required medical expert opinion corroborating its claims against Ghassan Fahel, D.O. See § 766.203, Fla. Stat. (2008). This court reversed the trial court's initial order of dismissal for failure to comply with presuit requirements and remanded for an evidentiary hearing to determine "whether Dr. Khilnani qualifies to act as an expert witness against Dr. Fahel, in light of Dr. Khilnani's qualifications and his attempt to withdraw his affidavit . . . ." Bery v. Fahel, 88 So. 3d 236, 238 (Fla. 3d DCA 2011). Upon remand, the trial court held an evidentiary hearing and then entered a final order of dismissal on the basis that Dr. Khilnani is unqualified to act as an expert witness against Dr. Fahel. We affirm because competent, substantial evidence supports the trial court's conclusion.

Affirmed.

 

 



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