JAMES J. McMANUS, Appellant,
DR. G.A. GAMEZ and JOAN DENMARK, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; Geoffrey Henry
J. McManus, pro se.
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.
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
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
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
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.
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.
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
review an order dismissing a complaint with prejudice de
novo. Brooke v. Shumaker, Loop & Kendrick, LLP,