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January 8, 2013


TRIAL COURT ERRED IN NOT DISMISSING MEDICAL MALPRACTICE
COMPLAINT FOR FAILURE TO SATISFY PRESUIT NOTICE REQUIREMENTS


On Dec. 10, 2012, the 5th DCA granted defendants' petition for writ of certiorari and remanded the case for entry of an order dismissing plaintiff's complaint.

Plaintiff, Donald Moser, filed a complaint alleging only simple negligence against defendant, Adwait Jathal, M.D. and his group, Omni Healthcare, Inc. The complaint was clearly a medical malpractice claim. As such, defendants filed a motion to dismiss based upon plaintiff's failure to comply with the presuit requirements of Fla. Stat. §766.106. The trial court denied that motion.

Defendants filed a petition for writ of certiorari. The 5th DCA, citing Williams v. Oken, 62 So. 3d 1129 (Fla. 2011), indicated that certiorari review of a motion to dismiss is appropriate when medical malpractice presuit requirements are at issue. The 5th DCA concluded that plaintiff failed to comply with the presuit requirements of Fla. Stat. §766.106 warranting dismissal of the action.

The opinion did not set forth specifically how Moser failed to comply with the presuit requirements or why the noncompliance warranted dismissal. However, the fact that the complaint attempted to allege simple negligence suggests that plaintiff never even filed a notice of intent to initiate litigation in an attempt to circumvent medical malpractice presuit altogether.

 

This summary was prepared by Eric F. Ochotorena of our firm.


Eric F. Ochotorena

Below my signature block you will find the opinion.


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37 Fla. L. Weekly D2809a


Torts -- Medical malpractice -- Presuit requirements -- Appeals -- Certiorari -- Trial court departed from essential requirements of the law in refusing to dismiss complaint where plaintiff failed to comply with statutory presuit requirements

OMNI HEALTHCARE, INC., Petitioner, v. DONALD MOSER, Respondent. 5th District. Case No. 5D12-1235. ADWAIT JATHAL, M.D., Petitioner, v. DONALD MOSER, Respondent. Case No. 5D12-1245. Opinion filed December 7, 2012. Petition for Certiorari Review of Order, from the Circuit Court for Brevard County, Robert T. Burger, Judge. Counsel: Wilbert R. Vancol and Thomas E. Dukes, III, of McEwan, Martinez & Dukes, P.A., Orlando, for Petitioner, Omni Healthcare, Inc. Michael R. D'Lugo, of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Orlando, for Petitioner Adwait Jathal, M.D. Frank J. Shaughnessy, of Law Offices of Frank Shaughnessy, P.A., Palm Bay, for Respondent.

(PER CURIAM.) Respondent filed a complaint attempting to allege simple negligence against Petitioners, who are a doctor, Adwait Jathal, and a physician group practice, Omni Healthcare, Inc. It is clear that what is alleged is a claim for medical malpractice. Petitioners filed a Motion to Dismiss in the trial court based on Respondent's failure to comply with the presuit requirements of section 766.106, Florida Statutes. The trial court denied the Motion, and Petitioners each filed a Petition for Writ of Certiorari with this court seeking review of that order.1

We conclude that because Respondent failed to comply with the statutory presuit requirements, the trial court departed from the essential requirements of law in refusing to dismiss Respondent's complaint. We grant the Petitions, quash the order of denial, and remand for entry of an order granting Petitioners' Motion to Dismiss. See Williams v. Oken, 62 So. 3d 1129, 1133-34 (Fla. 2011) ("Florida courts have created an exception to the general rule -- that certiorari review is inappropriate to review the denial of a motion to dismiss -- and permit certiorari review when the presuit requirements of a medical malpractice statute are at issue. See, e.g., Martin Mem'l Med. Ctr., Inc. v. Herber, 984 So. 2d 661, 662 (Fla. 4th DCA 2008); Lakeland Reg'l Med. Ctr. v. Allen, 944 So. 2d 541, 543 (Fla. 2d DCA 2006). The certiorari exception for the chapter 766 presuit requirements is premised on the purpose of the Medical Malpractice Reform Act -- to avoid meritless claims and to encourage settlement for meritorious claims.").2

PETITIONS GRANTED; ORDER QUASHED; REMANDED. (ORFINGER, C.J., SAWAYA, and BERGER, JJ., concur.)

__________________

1. Although these cases were not consolidated on appeal, we review them together because they arise from the same facts and present the identical issue.

2. See also Kissimmee Health Care Assocs. v. Garcia, 76 So. 3d 1107, 1108 n.1 (Fla. 5th DCA 2011) ("Although certiorari generally does not lie to review the denial of a motion to dismiss, there is a well-established exception for motions to dismiss for failure to comply with presuit conditions precedent." (citation omitted)); Cent. Fla. Reg'l Hosp. v. Hill, 721 So. 2d 404 (Fla. 5th DCA 1998).





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