Ragoonanan v. Assocs. in Obstetrics & GynecologyRagoonanan v. Assocs. in Obstetrics & Gynecology
William E. Partridge of Lutz, Webb, Partridge, Bobo & Baitty, P.A., Sarasota, for appellees Associates in Obstetrics and Gynecology; K.K. Yankopolus, M.D.; Philip F. Waterman, II, M.D.; Randall P. Cowdin, M.D.; and Stuart Don Levy, M.D.
Robert C. McCurdy, Fort Myers, for appellee Hosp. Bd. of Directors of Lee County d/b/a Lee Memorial Hosp.
THREADGILL, Judge.
The Ragoonanans appeal orders dismissing their complaint for medical negligence. We reverse.
The Ragoonanans filed an action for medical negligence against the physicians and hospital from which Mrs. Ragoonanan received care during her pregnancy. The physicians and hospital filed motions to dismiss the complaint alleging that the Ragoonanans had failed to comply with the presuit requirements of
The intent of
At the outset, we note that there is insufficient evidence in the record at this stage of the proceedings to determine the issue of sovereign immunity. See Testa v. Pfaff, 464 So.2d 220 (Fla. 1st DCA 1985). Thus, dismissal on that basis was premature.
We also reject as a ground for dismissal the hospital‘s claim that the Ragoonanans failed to cooperate in good faith with presuit discovery, as required by
There remains the issue of whether the Ragoonanans’ claim rests on a reasonable basis.
Prior to issuing notification of intent to initiate medical malpractice litigation ... 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.
Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant‘s submission of a verified written medical expert opinion ... which statement shall corroborate reasonable grounds to support the claim of medical negligence.
After completion of the presuit investigation, any party may request the court to determine whether the opposing party‘s claim rests on a reasonable basis.
The purpose of the requirement of providing an expert corroborative opinion is to prevent the filing of baseless litigation. Stebilla v. Mussallem, 595 So.2d 136 (Fla. 5th DCA 1992). “[T]he notice of intent to initiate litigation and the corroborating medical expert opinion, taken together, must sufficiently indicate the manner in which the defendant doctor allegedly deviated from the standard of care, and must provide adequate information for the defendants to evaluate the merits of the claim.” Duffy v. Brooker, 614 So.2d 539, 545 (Fla. 1st DCA 1993).
The physicians and hospital argue that the Ragoonanans’ failed to make a reasonable presuit investigation of their claim because
I have been advised that your client, Karen Ragoonanan in the third month of her pregnancy told the physicians providing her prenatal care that, like her mother, she had a “weak cervix“. At the time she also told them that her mother “had two premature deliveries before me and both died.”
The physician who responded told her she had nothing to worry about and no action was taken or advice given regarding the “weak cervix” information.
Although the child was not due until approximately October 24, 1989, he was born June 27, 1989 and, although he survived, he suffered serious, permanent physical damage of a type associated with prematurity.
Assuming the aforesaid account to be true and without significant mitigation, it is my professional opinion that the conduct of the physicians in question represented a breach of the prevailing professional standard of care expected of physicians in this country. No previous expert opinion I have expressed has been judicially disqualified.
The Ragoonanan‘s attorney was unable to provide the name and address of their expert to the physicians and hospital prior to the hearing on the motions to dismiss, but had identified the expert as a “board certified practicing OB/GYN.”1
In determining whether a party‘s claim rests on a reasonable basis, the trial court
may consider any relevant evidence, including the inferences to be drawn from the text of the notice of intent to sue or response and its corroborating medical expert opinion. However, the failure to provide an adequate verified written medical expert opinion is not dispositive. If the greater weight of the evidence establishes that the non-moving party did conduct a `reasonable investigation’ and that its notice of intent to sue or response rejecting the claim `rests on a reasonable basis,’ the motion will be denied.
An inescapable inference of negligence arises even for the lay person from the facts set forth in the notice of intent to initiate litigation and the corroborative expert opinion. Taking the facts in the notice as true, the physicians were advised of Mrs. Ragoonanan‘s family medical history yet took no precautions against a repetition of her mother‘s experiences. Indeed, like two of the children born to her mother, Mrs. Ragoonanan‘s child was born premature. As a result, the child suffered serious permanent injuries including blindness. Thus, the Ragoonanans have satisfied the intent of the statute by outlining a factual basis from which the merits of the claim can be determined. See 614 So.2d at 546. To bar the Ragoonanans at this stage of the proceedings from litigating their claim would be tantamount to permitting a technicality to deprive them of access to the court.
Motions to dismiss are not favored methods of terminating litigation. Bd. of County Commissioners v. Aetna Cas. & Sur., 604 So.2d 850, 851 (Fla. 2d DCA 1992). Because the greater weight of the evidence suggests that the Ragoonanans conducted a reasonable investigation, dismissal was an abuse of discretion. See 614 So.2d at 545.
Reversed.
CAMPBELL, A.C.J., and BLUE, J., concur.