United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS United States District Judge.
S. Alvarez, P. Enochs and R. Vivas, M.D., filed a Motion to
Dismiss the Medical Malpractice Claim (Motion) (Doc.
Plaintiff responded. See Plaintiff's
Answer/Reply to the Three Said Defendants' Motion to
Dismiss the Medical Malpractice Claim (Doc. 29); Order (Doc.
is proceeding on an Amended Complaint (Amended Complaint)
(Doc. 8). As Defendants, he names S. Alvarez, P. Enochs, and
R. Vivas, M.D. They have answered (Doc. 28) the Amended
Motion to Dismiss
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. (citing
Twombly, 550 U.S. at 556). "[T]he tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice."
Id. (citing Twombly, 550 U.S. at 555).
Medical Malpractice Claim
important to note that Florida's Medical Malpractice Act,
contained in Chapter 766, Florida Statutes, sets forth
complex pre-suit investigation and notice procedures that
must be followed by both the claimant and defendant.
Wheeler v. Corizon Medical Health Care Services, No.
5:16cv96/LAC/EMT, 2016 WL 7743516, at *3 (N.D. Fla. Dec. 27,
2016) (citing Kukral v. Mekras, 679 So.2d 278, 280
(Fla. 1996)), report and recommendation adopted by
2017 WL 113063 (N.D. Fla. Jan. 11, 2017). This means that
after completion of the claimant's pre-suit investigation
and prior to the filing of a medical malpractice claim, the
claimant "must notify each potential defendant 'of
intent to initiate litigation for medical malpractice[,
]'" and corroborate the claim "with a verified
written medical expert opinion, which must be furnished to
each potential defendant with the notice . . . ."
Bullock v. Kindred Hospitals East, LLC, No.
8:06CV1170T-27MSS, 2006 WL 2620138, at *2 (M.D. Fla. Sept.
13, 2006) (citations omitted). Of further importance,
"the pre-suit requirements apply to incarcerated
plaintiffs" and "to cases filed in federal
court." Wheeler, 2016 WL 7743516, at *3 (citing
O'Hanrahan v. Moore, 731 So.2d 95 (Fla. 4th DCA
1999); Okaloosa Cty. v. Custer, 697 So.2d 1297 (Fla.
1st DCA 1997); McMahan v. Toto, 256 F.3d 1120 (11th
Cir. 2001); Woods v. Holy Cross Hosp., 591 F.2d 1164
(5th Cir. 1979); Clark v. Sarasota Cty. Pub. Hosp.
Bd., 65 F.Supp.2d 1308, 1314 (M.D. Fla. 1998)).
regard, Plaintiff's medical malpractice claim will be
subject to dismissal if he failed to comply with the pre-suit
requirements. Indeed, failure to fulfill the statutory
requirements is fatal to a malpractice claim. Novak v.
United States of America, No. 2:15-cv-504-FtM-38MRM,
2016 WL 3447365, at *2 (M.D. Fla. June 23, 2016). Moreover,
"if more than two years has passed since the accrual of
this cause of action, " the claim is subject to
dismissal with prejudice. Smith v. Brevard Cty.,
Fla., No. 6:06-cv-715-Orl-31JGG, 2006 WL 2355583, at *8
(Aug. 14, 2006) (citing Clark, 65 F.Supp.2d at
1312), opinion amended on reh'g by 2006 WL
2507975 (M.D. Fla. Aug. 29, 2006).
in his Response, references his notice of intent to sue,
claiming he mailed it from Suwannee Correctional Institution
to the Florida Department of Financial Services Division of
Risk Management in Tallahassee, Florida, on October 14, 2016.
Response at 5. For the Court's review, he provides a copy
of the Notice of Intent to Sue as Exhibit 28 (Notice) (Doc.
review, even if this Notice satisfied the notice requirement,
there is no affidavit of a medical professional accompanying
the notice. See Bullock, 2006 WL 2620138, at *3
(finding that an affidavit of a medical expert opinion
accompanying the notice complied with the pre-suit
procedures). Section 766.203(2)(b), Florida Statutes,
"requires that corroboration of reasonable grounds to
initiate medical negligence litigation shall be provided by
the claimant's submission of a verified written medical
expert opinion from a medical expert at the time the notice
of intent to initiate is mailed." Wheeler, 2016
WL 7743516, at *3. Plaintiff does not assert or demonstrate
that he complied with this particular requirement.
this statutory scheme is to be interpreted liberally so that
there is no undue restriction to a potential claimant's
access to the courts, there are certain requirements that
must be met. Kukral v. Mekras, 679 So.2d 278, 284
(Fla. 1996). As such, this Court must respect Florida's
legislative policy and its initiative of screening out
frivolous lawsuits and defenses. Id. Therefore, the
claimant must ensure that the verified written medical expert
opinion "be furnished to each potential
defendant with the notice of intent to initiate
litigation." Bullock, 2006 WL 2620138, at *2
(emphasis added). Also, these documents "must indicate
how the defendant(s) deviated from the standard of care and
provide defendant(s) with adequate information to evaluate
the merits of the claim." Id. (citing
Watkins v. Rosenthal, 637 So.2d 993, 994 (Fla. 3d
DCA 1994) (citing Duffy v. Brooker, 614 So.2d 539,
545 (Fla. 1st DCA), rev. den'd, 624
So.2d 267 (Fla. 1993), abrogation on other grounds
recognized by Archer v. Maddux, 645 So.2d 544, 546 (Fla.
1st DCA 1994)).
liberally interpreting the statutory scheme in an attempt to
avoid the harsh sanction of dismissal, Plaintiff's notice
fails to meet the requirements of Florida's statutory
scheme. The notice was not provided to "each potential
defendant"; instead, the notice was sent to the Division
of Risk Management. More importantly, there is no verified
written medical expert opinion attached to the notice. There
is only Plaintiff's statement of the basis for action.
See Notice. Plaintiff's attempt to comply with
the statutory requirements is deficient. As such, the medical
malpractice claim is due to be dismissed.
remaining question is whether the dismissal should be with or
without prejudice. A claimant may cure the default if the
pre-suit requirements "are fulfilled within the
applicable statute of limitations." Novak, 2016
WL 3447365, at *2 (citing Kukral, 679 So.2d at 283).
In this instance, the two-year statute of limitations has
run, and Plaintiff has not shown that he fulfilled the
applicable pre-suit requirements. Therefore, the medical
malpractice claim will be dismissed with prejudice. Although
Plaintiff may not proceed on the malpractice claim, he may