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

October 17, 2012

MEDICAL MALPRACTICE -
DISMISSAL OF LAWSUIT AFFIRMED - PLAINTIFFS FAILED TO COMPLY WITH PRESUIT
REQUIREMENTS - TRIAL COURT REACHED CORRECT RESULT FOR WRONG REASON

 

The 2d DCA affirmed the trial court's dismissal, with prejudice, of the Pollocks' medical malpractice claim against Danner, Gulf Coast Obstetrics and Gynecology, and Sarasota Memorial Hospital. The opinion gave very few facts about the underlying case, but it apparently arose out of the birth of the Pollocks' child at Sarasota Memorial. The Pollocks claimed injuries to Mrs. Pollock and the Pollocks' child.

According to the opinion, the trial court dismissed the case because it found that the case was compensable under NICA, and therefore, NICA was the Pollocks' exclusive remedy. It is not clear whether the Pollocks had filed and litigated a NICA action in the Department of Administrative Hearings, and the trial court's reasoning is not discussed in the opinion.

The 2d DCA agreed with the Pollocks that the trial court had erred in concluding that their injuries were compensable under NICA, but it affirmed the dismissal of the action anyway. The 2d DCA ruled that the trial court had reached the correct result, albeit for the wrong reason (the so-called "tipsy coachman" doctrine).

The 2d DCA found that the Pollocks' attorney had failed to comply with the presuit requirements of Sec. 766.104 and Sec. 766.106, Fla. Stat., thereby warranting dismissal of the action. The opinion did not set forth how the Pollocks' attorney had failed to comply with the presuit requirements, or why that non-compliance warranted dismissal with prejudice.

This summary was prepared by Henry W. "Skip" Jewett II of our firm.

Henry W. "Skip" Jewett II

Below my signature block you will find the opinion.


Jennings L. Hurt III
Managing Partner
Rissman, Barrett, Hurt,
Donahue & McLain, P.A.
201 E. Pine St.
15th Floor
P.O. Box 4940
Orlando, Florida 32802 - 4940
Off: 407 - 839 - 0120
Fax: 407 - 841 - 9726
Cell: 407 - 760 - 9000
Email: bucky.hurt@rissman.com
www.rissman.com

 

37 Fla. L. Weekly D2227c


Torts -- Medical malpractice -- Birth-Related Neurological Injury Compensation Act -- Although trial court erred by concluding that injuries allegedly sustained by mother during childbirth were compensable under Florida Birth-Related Neurological Injury Compensation Plan, dismissal of action was proper because plaintiffs' counsel failed to comply with statutory presuit requirements

ROCK POLLOCK, SR. and SHAWNA M. POLLOCK, Individually and as Parents and Natural Guardians of R.P., a minor, Appellants, v. LAURA DANNER, C.N.M.; GULF COAST OBSTETRICS & GYNECOLOGY, LTD. f/k/a CORCORAN, EASTERING & DOYLE-VALLERY, LTD.; and SARASOTA COUNTY PUBLIC HOSPITAL DISTRICT d/b/a SARASOTA MEMORIAL HOSPITAL, Appellees. 2nd District. Case No. 2D11-4012. Opinion filed September 19, 2012. Appeal from the Circuit Court for Sarasota County: Lee E. Haworth, Judge. Counsel: David M. Caldevilla and Michael R. Bray of de la Parte & Gilbert, P.A., Tampa, for Appellants. David A. Wallace of Williams Parker Harrison Dietz & Getzen, P.A., Sarasota, for Appellee Sarasota County Public Hospital District d/b/a Sarasota Memorial Hospital. Jason M. Azzarone, Louis J. La Cava and Justine D. Adamski of La Cava & Jacobson, P.A., Tampa, for Appellees Laura Danner, C.N.M., Gulf Coast Obstetrics & Gynecology, Ltd. f/k/a Corcoran, Eastering & Doyle-Vallery, Ltd.

(CRENSHAW, Judge.) Rock Pollock, Sr. and Shawna M. Pollock appeal a final order adopting the recommendation of magistrate to dismiss their medical malpractice claims against appellees Laura Danner, C.N.M., Gulf Coast Obstetrics & Gynecology, LTD, and Sarasota Memorial Hospital. The Pollocks brought the medical malpractice action against the appellees based on injuries sustained by Mrs. Pollock and the Pollocks' child during childbirth. The trial court concluded that the Pollocks' claims should be dismissed because the Florida Birth-Related Neurological Injury Compensation Plan (NICA) provided the exclusive remedy for the claims under section 766.303(2), Florida Statutes (2010). Although we agree that the trial court erred by concluding that Mrs. Pollock's injuries were compensable under NICA, we conclude that dismissal was proper because the Pollocks' counsel failed to comply with the presuit requirements of sections 766.104 and 766.106.1 And because the trial court reached the "right result, albeit for the wrong reasons," we affirm the trial court's dismissal of the Pollocks' action. See generally Johnson v. Allstate Ins. Co., 961 So. 2d 1113, 1115 (Fla. 2d DCA 2007) (applying the "tipsy coachman" doctrine).

Affirmed. (NORTHCUTT and WALLACE, JJ., Concur.)

____________________

1We note that appellate counsel did not serve as trial counsel below.

 

* * *