United States District Court, M.D. Florida, Fort Myers Division
BERNARD J. NOVAK, Plaintiff,
UNITED STATES OF AMERICA, Defendants.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Government's Motion
to Dismiss Plaintiff's Amended Complaint and Motion to
Proceed (Doc. 16) dated December 22, 2016. Plaintiff Bernard
Novak, appearing pro se, filed a Response to the
Government's Motion to Dismiss on January 11, 2017 (Doc.
17). This matter is ripe for review.
four years ago, Novak tripped and fell in the parking lot of
the Lee County VA Healthcare Center in Cape Coral, Florida.
(Doc. 1 at 2). On October 2, 2014, he filed an administrative
claim with the VA, alleging that the VA did not timely treat
him and misdiagnosed him with a stubbed toe. (Doc. 1 at 2).
The VA denied his claim. (Doc. 1-1).
Novak timely filed this suit. (Doc. 1). The Court dismissed
his complaint without prejudice because Novak failed to
provide a notification of intent to sue and a verified expert
affidavit to the VA before filing this case. (Doc. 14 at 5).
Consequently, he filed an Amended Complaint (Doc. 15) and
attached a letter by Dr. Christopher S. Yuvienco in support
of his claim (Doc. 15 at 5; Doc. 16-1). The Government now
moves to dismiss the Amended Complaint because Novak did not
provide Dr. Yuvienco's letter to the VA and the letter is
not a verified expert opinion. (Doc. 16).
Florida Legislature has designed a statutory framework for
filing medical malpractice claims.” Edwards v.
Sunrise Ophthalmology, 134 So.3d 1056, 1058 (Fla. 4th
DCA 2013). “Florida law requires that before filing any
claim for personal injury . . . arising from medical
malpractice, the claimant conduct an investigation of the
claim and send the defendant(s) a notice of intent to sue,
along with a corroborating opinion by a medical
expert.” Johnson v. McNeil, 278 F.App'x
866, 871 (11th Cir. 2008) (citing Fla. Stat. §
766.203(2)). These statutory requirements are prerequisites -
not jurisdictional. See Kukral v. Mekras,
679 So.2d 278, 283 (Fla. 1996). “The failure to file a
properly verified medical opinion letter is not fatal to a
plaintiffs cause of action as long as the requirement is met
before the expiration of the statute of limitations.”
Maguire v. Nichols, 712 So.2d 784, 785 (Fla. 2d DCA
1998) (citations omitted).
time, Dr. Yuvienco's letter does not suffice as a
verified expert opinion under Florida law. The reasons
include, but are not limited to, the following:
• Dr. Yuvienco's letter does not “affirm,
validate, or otherwise substantiate the accuracy and
authenticity of [his] opinion.” Royle v. Fla.
Hosp.-East Orlando, 679 So.2d 1209, 1211 (“[I]n
order for a document to be verified, it must be signed or
executed by a person and that person must state under oath or
affirm that the facts set forth in the document are true
‘or words to that import or effect.'”);
see alsoFla Stat. § 92.525(4)(c).
• The letter fails to identify Dr. Yuvienco's years
of professional experience, whether he is a general
practitioner or specialist, and the nature of his medical
experience. See Fla. Stat. § 766.102(5)
(“A person may not give expert testimony concerning the
prevailing professional standard of care unless the person is
a health care provider who holds an active and valid license
and conducts a complete review of the pertinent medical
records and meets [specific] critera[.]”).
• The letter fails to indicate the VA doctor's
negligence and pinpoint a breach of the applicable standard
of care. SeeFla. Stat. § 766.206(2); see
also Rell v. McCulla, 101 So.3d 878, 881 (Fla.
2d DCA 2012) (holding that an expert affidavit “must
sufficiently indicate the manner in which the defendant
doctor allegedly deviated from the standard of care[, ] and
must provide adequate information for the defendants to
evaluate the merits of the claim”).
addition to the above deficiencies, Novak failed to provide
Dr. Yuvienco's letter to the VA. SeeFla. Stat.
§ 766.203(2) (requiring a claimant to provide a verified
expert affidavit to each prospective defendant prior to
filing a medical malpractice suit). Because Novak has not
complied with Florida pre-suit requirements, his Amended
Complaint must be dismissed.
the Court will permit Novak one last opportunity to amend his
complaint. The Court directs Novak to file a Second Amended
Complaint that incorporates the facts and counts against the
Government and attach a verified expert affidavit that
complies with Florida law. ...