David A. HOWELL and N.H., his minor son, through his father and next friend, David A. Howell, Appellants,
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.
appeal from the Circuit Court for Escambia County. Jan
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.
A. Wilson of Wilson, Harrell, Farrington, Ford, Wilson, Spain
& Parsons, P.A., Pensacola, for Appellees.
David Howell and N.H., his minor son, appeal the trial
courts 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.
their Notice of Intent to Initiate Litigation against
Appellee and William Balchunas, M.D., Appellants described
the alleged negligence of the defendants and Appellant
Howells 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
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
(Emphasis added). Appellee informed Appellants of its belief
that Dr. Bajakians
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 ...