Firm Results

Tom Saieva and Lesley Stine were successful in obtaining a Final Summary judgment in Pinellas County based on plaintiffs’ failure to comply with pre-suit requirements of Chapter 766, Florida Statutes, in a stroke case against a hospital. Plaintiffs’ pre-suit affidavit against the hospital for the alleged actions of a claimed registered nurse was supported by a neurologist from California with extensive stroke center credentials. This was challenged during presuit and thereafter during the lawsuit on the grounds that, pursuant to Section 766.102(6), claims against nurses, nurse practitioners, certified registered nurse anesthetists, physician assistants, or other medical support staff, could only be supported by similar health care providers, or physicians, licensed under Chapter 458 or 459 (Florida physicians), who had knowledge of the standard of care of those nurses, thus the out of state neurologist’s affidavit was insufficient.

The case was appealed twice. The initial motion for a determination of failure to comply with presuit was denied and appealed. The opinion in PP Transition, LP v Munson, 232 So. 3d 515 (Fla. 2d DCA 2017) was significant because it held that the trial court denied procedural safeguards when it summarily denied the hospital’s motion without express findings as to compliance.

Ultimately, the trial court granted a Final Summary Judgment on the basis of §766.102(6). This case involved the statute relating to expert witness certificates under §458.3175. Plaintiffs claimed that the expert certificate allowed the out of state witness to provide an affidavit against nurses, however the defense pointed out that the expert witness certificate only allowed an out of state physician to testify on the standard of care of a physician licensed under Chapter 458 or 459, rather than a nurse or other allied health professional.

The Final Summary Judgment was appealed to the Second District Court, which affirmed Per Curium in Munson v PP Transition, LP, 2021 WL 6055701.

Lou La Cava and David Young obtained a defense verdict for a physician assistant and emergency medicine physician in a wrongful death case in Manatee County. The Plaintiff alleged the physician assistant was negligent for not diagnosing meningitis in a 20 year old who presented with headache, fever, nausea and body aches. A diagnosis of viral syndrome was made and the patent was discharged home. The next day the patient was found unresponsive and he passed away a day later. Final diagnosis on autopsy was sepsis and meningitis. There was no testing performed in the emergency room. The physician was not consulted during the patient’s emergency room visit but later reviewed the record and agreed with the plan of care. The defense argued that an appropriate history and physical was performed in the emergency room which did not demonstrate meningitis. Further, the patient did have a viral illness while in the emergency room and he developed the bacterial infection after he left. After a 9 day case and just less than 4 hours of deliberation the jury returned a verdict finding both health care providers not negligent.

Amanda Smith, Frank Roberts, Jason Azzarone, and Lou La Cava were successful in obtaining summary judgment in Lee County based on Plaintiff’s failure to comply with multiple provisions of Chapter 766, Florida Statues, governing the medical malpractice pre-suit screening requirements. Specifically, the Defendant argued that Plaintiff failed to serve a Notice of Intent to Initiate Litigation for Medical Negligence (“NOI”) in accordance with F.S. 766.106(2)(a) and F.R.C.P. 1.650 and failed to provide evidence that the Plaintiff and/or his attorneys conducted a good faith investigation pursuant to F.S. 766.104 and provide Defendants, their attorneys, and/or insurers, with a verified written medical expert opinion from a qualified medical expert in accordance with F.S. 766.102, 766.202, and 766.203.

The Defendant further argued that Plaintiff had ample notice of the pre-suit deficiency with time to cure said deficiency, but did not do so. The Court found that neither the Defendant doctor, nor her employer were put on notice of the potential claim, nor were they named in the NOI that was sent to the co-defendant hospital. The court acknowledged the imputed notice arguments made by Plaintiff and cited in the Young v. Naples Community Hospital Inc., 129 So. 3d 456, 459–60 (Fla. 2d DCA 2014), but relied upon two cases cited by the Defendant, Bonati v. Allen (911 So2d 285, (2005)) and Brundage v. Evans (295 So.3d 300 (2020)), which illustrated that, pre-suit investigation requirements under Florida Statute section 766.203 demanded some specificity towards potential defendants in pre-suit, and a valid notice alone without corroboration does not suffice to meet pre-suit requirements.

Jason Azzarone was successful in arguing to the Second District Court of Appeal that the Trial Court did not err in denying the Plaintiff’s Renewed Motion to Disqualify the successor Judge assigned to the case. The Plaintiff filed a Renewed Motion to Disqualify following a hearing addressing the Defendants’ Motion to Dismiss. Despite being successful in defeating the Motion to Dismiss, the Renewed Motion to Disqualify was filed, arguing that comments made by the Judge during oral argument were improper, demonstrated bias towards the defense and supported the Plaintiffs’ belief that she would not receive a fair trial. Following the denial of the Renewed Motion to Disqualify, the Plaintiff filed a Petition for Writ of Prohibition with the Second District Court of Appeal, arguing that the denial was erroneous because the Judge’s comments were improper. In opposition, Mr. Azzarone argued that the comments were in no way inappropriate. Mr. Azzarone further argued that the Plaintiff failed to satisfy her burden of establishing error considering that the Plaintiff was attempting to disqualify a successor Judge. The Second District Court of Appeal agreed, denying the Petition for Writ of Prohibition.