Third District Court of Appeal
State of Florida
Opinion filed July 18, 2018.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D17-2267, 3D17-1462 & 3D17-1461
Lower Tribunal No. 15-16760
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Joseph Manzaro,
Appellant,
vs.
HCA, Inc., et al.,
Appellees.
Appeals from the Circuit Court for Miami-Dade County, John Schlesinger,
Judge.
Guillermo J. Farinas (Palm Beach), for appellant.
Lewis Brisbois Bisgaard & Smith and Jerome R. Silverberg and Jeffrey L.
Kominsky (Fort Lauderdale); Foley & Mansfield and Kevin P. O’Connor and Mary
Street; Wicker Smith O’Hara McCoy & Ford and Jessica L. Gross, for appellees.
Before SALTER, EMAS and LOGUE, JJ.
SALTER, J.
Joseph Manzaro (“Mr. Manzaro”), as personal representative of the estate of
Harmony Nicole Thornton (“Ms. Thornton”), appeals three orders dismissing with
prejudice an amended medical malpractice and wrongful death complaint with
prejudice for failure to comply with statutory pre-suit requirements. We affirm.
I. Facts; Proceedings in the Circuit Court
These three consolidated appeals arise from the same circuit court lawsuit
and a single “Amended Complaint for Wrongful Death & Demand for Jury Trial”
(the “Complaint”) filed on behalf of Mr. Manzaro in May 2016. The Complaint
identified 22 defendants in the caption and introduction, although specific acts and
omissions were not alleged as to several of them. Ms. Thornton died at Mercy
Hospital on April 23, 2013; the death certificate listed the manner of death as
natural, and the causes of death as three preexisting medical conditions arising three
months, six months, and six years before her death. An autopsy performed three
weeks after Ms. Thornton’s death listed the cause of death as “undetermined.”
The consolidated cases here are: Case No. 3D17-1461, involving claims
against appellees/defendants HCA, Inc., Plantation General Hospital, L.P., Mercy
Hospital, HCA Long Term Health Services of Miami, Inc., Northwest Medical
Center, Inc., and University Hospital, Ltd. (collectively, the “HCA Defendants”);
Case No. 3D17-1462, involving claims against Alberto Manzor, M.D. (“Dr.
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Manzor”); and Case No. 3D17-2267, involving claims against Steven Cohn, M.D.
(“Dr. Cohn”). The cases were separately briefed.1
Although the death certificate and autopsy did not suggest medical
malpractice or violent crime, the Complaint alleged that Ms. Thornton
“mysteriously and suspiciously died” and that her death “was a result of her murder
or manslaughter,” “hospital homicide,” and “attempted involuntary euthanasia.”
A. Drs. Cohn and Manzor
Dr. Cohn and Dr. Manzor filed motions to dismiss the Complaint based on
Mr. Manzaro’s failure to comply with Florida’s statutory requirements applicable to
claims of medical malpractice (sections 766.201 - .212, Florida Statutes (2015)),
and the expiration of the applicable statute of limitation. Dr. Cohn and Dr. Manzor
were not identified individually in any count within the Complaint, nor were there
any allegations identifying any individual acts or omissions by those defendants.
Mr. Manzaro mailed Dr. Cohn a notice of intent to initiate litigation on April
13, 2015, but it contained no allegations as to any wrongful acts or omissions by
Dr. Cohn. No corroborating expert affidavit was attached.
1 The cases were scheduled for oral argument on a consolidated basis. The Court
granted the appellant’s emergency motion for continuance filed that morning, but in
its order advised the parties that the cases would be rescheduled for oral argument
“if the panel concludes that oral argument will aid the court in reaching its
decision.” After a review of the briefs and records in the consolidated cases, the
panel has determined that oral argument will not be necessary.
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Mr. Manzaro’s notice of intent mailed to Dr. Manzor was returned
unclaimed; there is no indication of any subsequent attempt at, or successful,
delivery of a presuit notice to Dr. Manzor.
These circumstances, coupled with the passage of the two-year statute of
limitations applicable to the claims against these two physicians, culminated in
orders dismissing the Complaint with prejudice as to each of them.
B. HCA Defendants
Mr. Manzaro also served a notice of intent on HCA, Inc. (“HCA”), for the
HCA Defendants, on April 4, 2015. He contended that his obligation to submit a
verified written medical expert opinion (required by section 766.203(2)) was
inapplicable because of HCA’s failure to provide relevant medical records to him
within ten days, as required by section 766.204(1), waiving the requirement of
written medical corroboration (section 766.204(2)). The sole attachment was the
autopsy report stating that Ms. Thornton’s cause of death was “undetermined.”
The trial court conducted a two-hour hearing to afford Mr. Manzaro an
opportunity to demonstrate that he conducted a good faith investigation and that he
has a reasonable basis for the claims in the Complaint. The court concluded that
Mr. Manzaro failed to fulfill these requirements:
The Certificate of Death asserts that the decedent died of natural
causes. The autopsy report of Plaintiff’s expert is inconclusive.
There is no corroborating expert affidavit. The Miami-Dade State
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Attorney’s Office has to date declined to proceed with charges against
anyone related to this matter for homicide.
The trial court also found that there were “scant further details among the
facts to explain the actual proximate cause of the wrongful death alleged,” and that
“It is not at all clear what these doctors and hospitals did or failed to do that
constitutes a breach of the standard of care that resulted in wrongful death.”
Concluding again that the applicable two-year statute of limitations had already run,
the court dismissed the Complaint with prejudice as to the HCA Defendants as
well.
Mr. Manzaro appealed as to all three orders of dismissal with prejudice.
II. Analysis
As is the case with any complaint dismissed with prejudice, our review is de
novo. We assume all of the factual allegations in Mr. Manzaro’s Complaint to be
true and construe all reasonable inferences from those allegations in his favor.
United Auto. Ins. Co. v. Law Offices of Michael I. Libman,
46 So. 3d 1101, 1103-
04 (Fla. 3d DCA 2010).
In cases involving allegations of medical malpractice by health care
providers, however, there are additional threshold, objective, statutory requirements
within Chapter 766, Florida Statutes, which must be satisfied if the case is to
proceed. See Williams v. Campagnulo,
588 So. 2d 982, 983 (Fla. 1991);
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Ragoonanan v. Assocs. In Obstetrics & Gynecology,
619 So. 2d 482, 484 (Fla. 2d
DCA 1993).
The trial court properly concluded that there was no reasonable basis for Mr.
Manzaro’s claims of medical malpractice against these eight defendants, and that
there was a failure to comply with the statutory pre-suit requirements for
investigation, corroboration, and written notice. Largie v. Gregorian,
913 So. 2d
635 (Fla. 3d DCA 2005). Finally, the trial court’s conclusion that the Complaint
lacked any cognizable allegations to establish a tolling of the statute of limitations
further warranted the dismissal with prejudice.
The three orders of dismissal with prejudice are affirmed.
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