Rell v. McCulla
101 So. 3d 878
| Fla. Dist. Ct. App. | 2012Background
- Petitioners seek a writ of certiorari to quash a trial-court order denying their motion to dismiss the McCulla medical malpractice complaint.
- The trial court denied the motion alleging the McCullas satisfied presuit notice requirements under section 766.203(2), Florida Statutes (2011).
- McCullas alleged injuries from Dr. Rell’s December 2008–March 2009 arthroscopic procedures and steroid injection, and later surgeries by Dr. Cottom after a September 2009 consult and MRI.
- In March 2011, the McCullas served a notice of intent with a corroborating affidavit from Dr. Kopelman; an addendum followed September 23, 2011.
- The Kopelman corroborating affidavit stated there were reasonable grounds to investigate negligence but did not affirm negligence or that it resulted in injury, and the addendum likewise failed to assert negligent care.
- The trial court held the letters, together with counsel’s review, satisfied section 766.203(2), and the appellate court granted certiorari to review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Kopelman’s corroborating affidavit satisfy 766.203(2)? | McCullas contend corroboration shows negligence and injury. | Corroboration did not state negligence or causal injury. | No; corroboration insufficient to meet 766.203(2). |
| Can an attorney’s review alone satisfy the presuit corroboration requirement? | Counsel’s records review should suffice. | Attorneys alone cannot substitute for medical expert corroboration. | No; attorney review cannot replace a medical expert corroboration. |
| Does the addendum cure the initial insufficiency? | Addendum strengthens grounds to investigate negligence. | Addendum still fails to specify negligent care or resulting injury. | No; addendum did not provide definitive corroboration of negligence or causal injury. |
Key Cases Cited
- Williams v. Oken, 62 So.3d 1129 (Fla. 2011) (certiorari standard and essential requirements framework)
- Fassy v. Crowley, 884 So.2d 359 (Fla. 2d DCA 2004) (presuit notice framework)
- Ragoonanan ex rel. Ragoonanan v. Assocs. in Obstetrics & Gynecology, 619 So.2d 482 (Fla. 2d DCA 1993) (notice plus corroborating medical opinion must inform on deviation from standard of care)
- Davis v. Orlando Reg’l. Med. Ctr., 654 So.2d 664 (Fla. 5th DCA 1995) (corroborating opinion should substantiate claim, not merely notice)
- DeCristo v. Columbia Hosp. Palm Beaches, Ltd., 896 So.2d 909 (Fla. 4th DCA 2005) (presuit corroboration requirements interpretation)
- Shands Teaching Hosp. & Clinics, Inc. v. Barber, 638 So.2d 570 (Fla. 1st DCA 1994) (interpretation of corroborating evidence in presuit notice)
- Jackson v. Morillo, 976 So.2d 1125 (Fla. 5th DCA 2007) (liberal construction of presuit notice discussed; distinguishing facts)
- Bonati v. Allen, 911 So.2d 285 (Fla. 2d DCA 2005) (failure to name co-defendant in corroborating affidavit vitiates notice)