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McManus v. Gamez

Florida Court of Appeals, Second District

August 7, 2019

JAMES J. McMANUS, Appellant,
v.
DR. G.A. GAMEZ and JOAN DENMARK, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Lee County; Geoffrey Henry Gentile, Judge.

          James J. McManus, pro se.

          Robin D. Black and Douglas Nail of Law Offices of Lorraine Lester, Lake Mary (withdrew after briefing); Caryn L. Bellus of Kubicki Draper, P.A., Miami (substituted as counsel of record) for Appellees.

          MORRIS, Judge.

         James J. McManus appeals from an order dismissing with prejudice his complaint against Dr. G.A. Gamez and Joan Denmark. Because we conclude that McManus's complaint was grounded in ordinary negligence, rather than medical negligence, we hold that the trial court erred in dismissing the complaint based on McManus's failure to comply with the presuit requirements set forth in section 766.106(2), Florida Statutes (2013).

         BACKGROUND

         McManus's complaint alleged that during an appointment for neurological testing on July 1, 2013, Dr. Gamez and Ms. Denmark left the room after the testing was completed and that McManus was left alone on an examination table "without sides." He further alleged that he fell from the table striking his head, losing consciousness, and suffering a concussion. He claimed to have suffered continuing injuries as a result of the incident.

         Dr. Gamez and Ms. Denmark filed their first motion to dismiss, arguing in relevant part that McManus had failed to comply with the presuit screening and notice requirements set forth in chapter 766. McManus responded by filing a request "to file the pre-suit [sic] screening & notice requirements" or, in the alternative, to have the case be accepted as an ordinary negligence case. In March 2016, the trial court abated the case "until such time as [McManus] complies with the pre-suit [sic] requirements in chapter 766."

         However, rather than filing a notice of compliance with the presuit screening and notice requirements, McManus filed a motion to amend his complaint, asking to change his allegations from sounding in medical negligence to ordinary negligence. He argued that because Dr. Gamez and Ms. Denmark were not rendering medical care at the time he fell off the table, a claim sounding in ordinary negligence was more appropriate. A hearing was conducted on the motion to amend, though no transcript was provided to this court. However, the trial court's minutes of the hearing reflect that the court denied the motion for "not meeting legal standards" and because McManus had not filed an amended complaint.

         Thereafter, on October 6, 2017, Dr. Gamez and Ms. Denmark filed a second motion to dismiss with prejudice based on McManus's continued failure to comply with presuit screening and notice requirements within the statute of limitations. They alleged that because the injury allegedly occurred on July 1, 2013, because McManus alleged that he became aware that the injury was caused by medical malpractice on July 2, 2013, and because the statute of limitations was never tolled, the statute of limitations expired on July 2, 2015. McManus filed a response asserting that this case was one alleging ordinary negligence and not medical negligence.

         After a hearing, the trial court granted Dr. Gamez and Ms. Denmark's motion to dismiss with prejudice. In doing so, the trial court explained that "[b]ased on the four corners of the Complaint, . . . the absolute latest date that the statute of limitations could have been triggered in this matter would have been June 26, 2015, the date [McManus] filed [his] Original Complaint for Medical Malpractice." The court also noted that McManus had still failed to plea or allege that he had complied with the presuit notice requirements.

         ANALYSIS

         We review an order dismissing a complaint with prejudice de novo. Brooke v. Shumaker, Loop & Kendrick, LLP, 82 ...


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