Third District Court of Appeal
State of Florida
Opinion filed April 20, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-0046
Lower Tribunal No. 17-3493
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University of Miami, etc.,
Petitioner,
vs.
Shanay Hall Jones, etc.,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Jose
M. Rodriguez, Judge.
Fowler White Burnett, P.A., and Christopher E. Knight and Marc J.
Schleier, for petitioner.
Louis Thaler, P.A., and Louis Thaler, for respondent.
Before SCALES, HENDON and MILLER, JJ.
SCALES, J.
Petitioner, defendant below, University of Miami d/b/a University of
Miami Hospital a/k/a UHealth, seeks certiorari review of the trial court’s
December 8, 2021 order denying its motion to dismiss for failure to comply
with chapter 766’s presuit requirements in medical malpractice actions. We
have jurisdiction. See Dial 4 Care, Inc. v. Brinson,
319 So. 3d 111, 113 (Fla.
3d DCA 2021). Because the trial court departed from the essential
requirements of law by failing to make the requisite findings, see
id., we grant
the petition and quash the challenged order.
“Florida’s medical malpractice statutory scheme, codified in chapter
766, Florida Statutes, contains an elaborate presuit process for prospective
medical malpractice plaintiffs . . . [that] was created to ‘facilitate the
expedient, and preferably amicable, resolution of medical malpractice
claims.’” Morris v. Muniz,
252 So. 3d 1143, 1151 (Fla. 2018) (quoting
Williams v. Oken,
62 So. 3d 1129, 1133 n.1 (Fla. 2011) (citation omitted)).
Chapter 766 contains several prerequisites for the filing of a medical
malpractice action, including that the claimant must conduct a reasonable,
good faith investigation 1 and then provide the prospective defendant with a
1
See § 766.104(1), Fla. Stat. (2017); § 766.203(1)-(2), Fla. Stat. (2017).
2
notice of intent to sue that is accompanied by a corroborating medical expert
affidavit. 2
“After the completion of presuit investigation by the parties . . . and any
discovery . . . , any party may file a motion in the circuit court requesting the
court to determine whether the opposing party’s claim or denial rests on a
reasonable basis.” § 766.206(1), Fla. Stat. (2017) (emphasis added). Thus,
when the defendant files a section 766.206 motion, the trial court is required
to “make an express finding as to [the claimant’s] compliance with the presuit
requirements.” PP Transition, LP v. Munson,
232 So. 3d 515, 516 (Fla. 2d
DCA 2017). The trial court’s failure to do so – i.e., by entering an order
summarily denying the defendant’s motion – “results in irreparable harm” that
cannot be remedied on appeal. Martin Mem’l Med. Ctr. v. Herber,
984 So.
2d 661, 662 (Fla. 4th DCA 2008); S. Miami Hosp., Inc. v. Perez,
38 So. 3d
809, 811 (Fla. 3d DCA 2010). Further, the trial court’s failure to make any
findings with respect to the claimant’s compliance with chapter 766’s presuit
requirements constitutes a departure from the essential requirements of law.
See Dial 4 Care, Inc., 319 So. 3d at 114; PP Transition, LP, 232 So. 3d at
516; Herber,
984 So. 2d at 662.
2
See § 766.106(2)(a), Fla. Stat. (2017); § 766.203(2), Fla. Stat. (2017).
3
Here, petitioner filed a motion to dismiss below challenging
respondent’s 3 compliance with several of chapter 766’s presuit
requirements. Specifically, petitioner’s motion argued that (i) respondent had
not conducted a reasonable, good faith investigation, (ii) respondent’s notice
of intent to sue was facially defective,4 and (iii) respondent failed to provide
a corroborating medical expert affidavit. Respondent’s response below
focused solely on petitioner’s purported failure to timely provide copies of
medical records and the consequent waiver of section 766.203(2)’s
requirement that the notice of intent to sue be accompanied by a
corroborating medical expert affidavit. See § 766.204(2), Fla. Stat. (2017).5
3
Shanay Hall Jones, as personal representative of the estate of Ahmed
Jamal Jones.
4
Duffy v. Brooker,
614 So. 2d 539, 545 (Fla. 1st DCA 1993), disapproved on
other grounds as recognized in Archer v. Maddux,
645 So. 2d 544, 547 (Fla.
1st DCA 1994) (“In order to comply with the spirit and intent of the statute, .
. . the notice of intent to initiate litigation and the corroborating medical expert
opinion, taken together, must sufficiently indicate the manner in which the
defendant . . . allegedly deviated from the standard of care, and must provide
adequate information for the defendant[] to evaluate the merits of the
claim.”); Watkins v. Rosenthal,
637 So. 2d 993, 994 (Fla. 3d DCA 1994)
(same).
5
While we do not address the merits of this waiver issue, we note that the
“failure to provide full and complete medical records under section 766.204,
Florida Statutes . . . [does] not constitute a waiver of the required notice” of
the intent to sue required by section 766.106(2)(a). Otto v. Rodriguez, 710
4
After conducting a non-evidentiary hearing, and despite petitioner’s repeated
requests for an evidentiary hearing, 6 the trial court entered the challenged
order denying petitioner’s motion without explication.
Petitioner’s motion to dismiss “required the trial court ‘to determine’
whether [respondent] had complied with the presuit requirements in chapter
766.” Dial 4 Care, 319 So. 3d at 114. “By failing to make the requisite findings
as to [respondent’s] compliance with the presuit requirements, the trial court
‘effected a denial of the procedural safeguards of chapter 766 for which
certiorari is appropriate.’” Id. at 115 (quoting PP Transition, LP, 232 So. 3d
at 516). We, therefore, grant the petition and quash the challenged order.
Petition granted; order quashed.
So. 2d 1, 2 (Fla. 4th DCA 1998). Moreover, we note that an informal
discovery request contained within the notice of intent to sue does not
implicate a section 766.204(2) waiver. See Brundage v. Evans,
295 So. 3d
300, 304-05 (Fla. 2d DCA 2020).
6
Often, the inquiry into whether the claimant’s claim “rests on a reasonable
basis and whether his [or her] notice of intent is in compliance with the
requirements of chapter 766” is “accomplished by conducting an evidentiary
hearing.” Holden v. Bober,
39 So. 3d 396, 402 (Fla. 2d DCA 2010).
5
