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Howell v. Balchunas

Florida Court of Appeals, First District

December 17, 2019

David A. Howell and N.H., his minor son, through his father and next friend, David A. Howell, Appellants,
v.
William Balchunas, M.D., Pensacola Radiology Consultants, P.A., d/b/a Pensacola Radiology Consultants and Sacred Heart Health System, Inc. d/b/a Sacred Heart Hospital-Pensacola, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Escambia County. Jan Shackelford, Judge.

          Gary W. Roberts and Fred Cohen, M.D., of Gary Roberts & Associates, P.A., West Palm Beach; Tracy S. Carlin and Celene H. Humphries of Brannock & Humphries, Tampa, for Appellants.

          Joseph A. Wilson of Wilson, Harrell, Farrington, Ford, Wilson, Spain & Parsons, P.A., Pensacola, for Appellees.

          Per Curiam.

         Appellants, David Howell and N.H., his minor son, appeal the trial court's order dismissing with prejudice their medical malpractice case against Appellee, Sacred Heart Health System, Inc. Appellants argue that the order should be reversed because Appellee waived the issue of their alleged failure to comply with the presuit requirements of section 766.203(2), Florida Statutes (2015), and that, even if a waiver did not occur, their notice of intent to sue and their corroborating affidavit fully complied with the presuit requirements. Finding no merit in Appellants' waiver argument, we affirm as to that issue without further comment. For the reasons that follow, we reject Appellants' compliance argument and affirm as to that issue as well.

         In their Notice of Intent to Initiate Litigation against Appellee and William Balchunas, M.D., Appellants described the alleged negligence of the defendants and Appellant Howell's alleged injuries that resulted therefrom. Attached to the notice was the affidavit of Richard L. Bajakian, M.D. After explaining that he practiced diagnostic radiology, was familiar with the prevailing professional standard of care in his profession and within his specialty, and had reviewed certain reports, charts, and images, Dr. Bajakian "reach[ed] and state[d] the following conclusions with reasonable medical probability and confidence":

a) That the initial pulmonary CT angiogram of 7/29/2015, was incorrectly interpreted by Dr. William R. Balchunas as negative, when it [sic] fact it clearly and convincingly showed and demonstrated a clot or pulmonary embolus in the left lung circulation.
b)In my personal opinion as a practicing Diagnostic Radiologist in south Florida today that there is a reasonable basis to believe that such a reading and interpretation of this study is below the standard of care for a practicing diagnostic radiologist.
c)That there is likewise a reasonable basis to believe that misinterpreting this study of 7/129/2015 [sic] could have led the referring physician and anyone else who relied on this interpretation to miss the correct diagnosis, potentially leading to incorrect, improper, or no treatment of the diagnosable condition. Such actions and inactions could potentially have caused permanent harm to patient David Howell.

         (Emphasis added). Appellee informed Appellants of its belief that Dr. Bajakian's affidavit was insufficient under the presuit requirements. Notwithstanding such, Appellants filed a Complaint against Appellee, Dr. Balchunas, and Pensacola Radiology Consultants, alleging negligence and loss of consortium claims. Appellee moved to dismiss the case against it.

         In the order on appeal, the trial court found in part:

b. Florida Statute § 766.203(2) requires that "the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that: (a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and (b) Such negligence resulted in injury to the claimant." There is no question that the Affidavit from Plaintiffs' presuit expert, Richard Bajakian, M.D., found a reasonable basis that Dr. Balchunas' reading of the radiology study breached of [sic] the standard of care. However, Dr. Bajakian's Affidavit did NOT establish such negligence resulted in injury to the Claimant/Plaintiff . . . . Dr. Bajakian's language in his Affidavit stated that the alleged negligence "could have led"; "potentially leading to incorrect"; and "such actions could have potentially caused permanent harm." These averments do not meet the pre-suit statutory requirements. The Court finds Rell v. McCulla, 101 So.3d 878 (Fla. 2d DCA 2012), which was cited by counsel for Sacred Heart, instructive on the issue.
c. The Court finds that the statute of limitations has lapsed such that the deficiency cannot be corrected. Therefore, the ...

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