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.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Escambia County. Jan
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
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
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.
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
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
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
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
c. The Court finds that the statute of limitations has lapsed
such that the deficiency cannot be corrected. Therefore, the