Third District Court of Appeal
State of Florida
Opinion filed March 17, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1644
Lower Tribunal No. 19-29346
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Dial 4 Care, Inc.,
Petitioner,
vs.
Elijah Brinson, et al.,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Barbara
Areces, Judge.
Cole Scott & Kissane, P.A., and Therese A. Savona (Orlando), for
petitioner.
The Powell Law Firm, P.A., and Brett C. Powell, for respondent Elijah
Brinson.
Before FERNANDEZ, LOGUE and GORDO, JJ.
GORDO, J.
Dial 4 Care, Inc. seeks certiorari review of the trial court’s order
denying its motion to dismiss for failure to comply with the statutory presuit
screening requirements in medical malpractice actions under chapter 766,
Florida Statutes. It argues the trial court departed from the essential
requirements of law by denying its motion to dismiss prior to determining that
Elijah Brinson performed a reasonable presuit investigation and provided the
requisite corroborating medical expert affidavit. Because the trial court
departed from the essential requirements of law by failing to make the
requisite findings, we grant the petition.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Dial 4 Care provided home health care services to Brinson in 2016. On
May 9, 2019, Brinson sent Dial 4 Care a records request, requesting a copy
of his complete medical file, pursuant to section 766.204, Florida
Statutes. The next day, on May 10, 2019, Brinson served a notice of intent
to initiate litigation on Dial 4 Care, pursuant to section 766.106, Florida
Statutes. The notice contained a request for “informal discovery,” requesting
information and numerous documents, including medical records. The
notice of intent letter did not, however, include medical corroboration or
evidence that a good faith investigation had occurred. Instead, the notice
stated that an “expert affidavit [would] be forwarded under separate
2
cover.” No such affidavit has been filed with the trial court or provided to Dial
4 Care. On May 29, 2019, Brinson sent an additional request for medical
records to Dial 4 Care. 1
In October of 2019, Brinson filed the underlying medical malpractice
suit against numerous parties, including Dial 4 Care. Brinson alleged that
Dial 4 Care had been negligent because it failed to provide medical care and
treatment in accordance with professional standards.
The operative complaint contained several statements of compliance, 2
including one alleging that Brinson had complied with section 766.203,
Florida Statutes. More particularly, it stated that Brinson had “made a
reasonable investigation as permitted by the circumstances” and
“determine[d] that there are grounds for a good faith belief that there ha[d]
been negligence in [his] care and treatment.” Dial 4 Care filed a motion to
dismiss Brinson’s amended complaint, alleging he failed to comply with
1
Despite the fact that this request was sent after the notice of intent to initiate
litigation, the request stated that it was being made pursuant to section
766.204, Florida Statutes.
2
The complaint alleged that Brinson had provided notices of intent to initiate
litigation pursuant to section 766.106(2), Florida Statutes; that the notices of
intent had been served within two years of the date Brinson had knowledge
there was a reasonable probability his injuries were caused by medical
malpractice; and that the suit had been filed within the statute of limitations.
3
Chapter 766 by not conducting the statutorily mandated presuit investigation
and by failing to provide a corroborating affidavit from a medical expert.
The trial court held a hearing and entered an unelaborated order
denying the motion. The order did not contain findings as to whether Brinson
had conducted the statutorily mandated presuit investigation or filed the
requisite expert affidavit within the statute of limitations.
AVAILABILITY OF RELIEF BY CERTIORARI
In order to obtain relief by certiorari, the petitioner must “demonstrate
a departure from the essential requirements of the law which results in a
material injury for which there is no adequate remedy on appeal.” State v.
Hernandez,
278 So. 3d 845, 848 (Fla. 3d DCA 2019) (quoting State v. Styles,
962 So. 2d 1031, 1032 (Fla. 3d DCA 2007)). “The requirements of material
harm and the lack of a remedy on appeal are jurisdictional.”
Id. (quoting
State v. Welch,
94 So. 3d 631, 634 (Fla. 2d DCA 2012)). “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.” Kissimmee Health Care Associates v. Garcia,
76 So. 3d 1107, 1108 (Fla. 5th DCA 2011) (internal citations omitted). “In
cases such as the one before us, ‘[a] nonfinal order that erroneously allows
a plaintiff to proceed with an action without complying with the presuit
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requirements of chapter 766 would result in material injury to the defendants
that could not be corrected on appeal.’” S. Miami Hosp., Inc. v. Perez,
38
So. 3d 809, 811 (Fla. 3d DCA 2010) (quoting Corbo v. Garcia,
949 So.2d
366, 368 (Fla. 2d DCA 2007)).
LEGAL ANALYSIS
The Legislature has set forth procedures with which each claimant
must comply prior to filing medical malpractice suits. See, e.g., §§ 766.104,
766.106, 766.201–.212, Fla. Stat. Among these requirements is that the
claimant must perform a reasonable investigation “to determine that there
are grounds for a good faith belief that there has been negligence in the care
or treatment of the claimant.” Id. at § 766.104(1). Good faith exists where
an expert has provided a written opinion to claimant or his counsel “that there
appears to be evidence of medical negligence.” Id. The investigation
requires that counsel review the case “against each and every potential
defendant and has consulted with a medical expert and has obtained a
written opinion from said expert.” Id. at § 766.202(5).
Dial 4 Care’s motion to dismiss required the trial court to determine
whether Brinson had complied with the presuit requirements in chapter 766.
Specifically, based on the allegations in the motion, the trial court was
required to make findings regarding whether Brinson conducted a
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reasonable investigation prior to filing suit. See, e.g., PP Transition, LP v.
Munson,
232 So. 3d 515, 516 (Fla. 2d DCA 2017) (“At a minimum, [the
motion to dismiss] required the trial court to make an express finding as to
the [claimant’s] compliance with the presuit requirements.” (citing Martin
Mem’l Med. Ctr., Inc. v. Herber,
984 So. 2d 661, 663 (Fla. 4th DCA 2008))).
The trial court summarily denied the motion to dismiss, “without making any
findings as to [Brinson’s] compliance with chapter 766.”
Id. “This effected a
denial of the procedural safeguards of chapter 766 for which certiorari relief
is appropriate.”
Id. (citations omitted).
Dial 4 Care also argues the trial court departed from the essential
elements of law by denying the motion to dismiss where it is undisputed that
Brinson has failed to provide a corroborating expert affidavit regarding Dial
4 Care’s alleged medical negligence. The failure to provide a corroborating
affidavit contemporaneously with the notice of intent to initiate litigation letter,
however, need not necessarily result in dismissal of the entire action. If the
plaintiff provides the affidavit before the expiration of the statute of
limitations, the deficiency with the notice letter is cured. See, e.g., Kukral v.
Mekras,
679 So. 2d 278, 280 (Fla. 1996) (“Plaintiff provided a written
corroborating medical expert opinion within the period of the statute of
limitations, and then verified that opinion within the limitations period; he
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complied with the presuit notice requirements and should not be subject to
the ultimate sanction—dismissal of his claim.” (citations omitted)). Brinson
concedes in his answer brief that the affidavit has not yet been provided to
Dial 4 Care. 3
Brinson argues that by failing to provide documents following requests
on May 9, 10, and 29, Dial 4 Care waived that requirement for a written
corroborating expert affidavit. See § 766.204(2), Fla. Stat. He cites to
numerous cases for the proposition that failure to turn over documents within
10 days of the 766.204 request waives the claimant’s requirement to provide
a corroborating affidavit. Those cases involve medical providers that were
afforded at least ten days to respond, failed to respond (sometimes in well
over ten days), and were then sent notices of intent to initiate litigation. There
is a difference between records requested under section 766.204 for the
plaintiff to conduct a presuit investigation and records requested in the notice
of intent letter pursuant to the informal discovery provision of section
766.106. See Brundage v. Evans,
295 So. 3d 300, 303–05 (Fla. 2d DCA
2020). The penalty for failing to turn over records under each statutory
provision is also different. Id. at 305 (“[T]he provision that allows for waiver
3
We note that it is unclear on the record before us whether the statute of
limitations has lapsed and whether Brinson is still able to timely provide Dial
4 Care with the affidavit.
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of a claimant’s obligation to include an expert opinion appears in section
766.204(2), not section 766.106, and applies to a failure to provide medical
records for the presuit investigation that precedes the filing of the notice of
intent. Section 766.106(6) . . . does not provide for a waiver of the expert
opinion requirement.”).
Section 766.204, Florida Statutes, is titled “Availability of medical
records for presuit investigation of medical negligence claims and
defenses; penalty.” Id. (emphasis added). The purpose of requests for
records under this section is to assist the claimant in its presuit investigation
of the alleged medical negligence—an investigation that is statutorily
mandated to take place before the notice of intent to initiate litigation is sent.
See § 766.203(2), Fla. Stat. Indeed, the section providing for presuit notice
letters states that such notice is to be sent to putative defendants “[a]fter
completion of presuit investigation.” Id. at § 766.106(2)(a). At the time a
notice of intent letter is sent to the putative defendants, section 766.203
requires that claimants have a good faith belief that each putative
defendants’ alleged negligence contributed to the injuries at issue.
The penalty for a putative defendant’s failure to provide requested
medical records varies depending on the statue under which said records
are requested and the timing of the requests. See generally Brundage, 295
8
So. 3d 300. Here, the trial court did not make any findings regarding the
records requests sent to Dial 4 Care. Based on the arguments raised by Dial
4 Care below, the trial court departed from the essential requirements of law
in summarily denying the motion to dismiss. By failing to make the requisite
findings as to Brinson’s compliance with the presuit requirements, the trial
court “effected a denial of the procedural safeguards of chapter 766 for which
certiorari is appropriate.” PP Transition, LP, 232 So. 3d at 516.
We therefore grant Dial 4 Care’s petition and quash the order below.
See Martin Mem’l Med. Ctr., Inc.,
984 So. 2d at 664.
Petition granted; order quashed.
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