Summary
issuing certiorari where corroborating expert's presuit letter was unverified
Summary of this case from Fla. Health Scis. Ctr. v. JackmanOpinion
No. 2D21-3279
06-24-2022
Dr. Hazem Al ANDARY, Petitioner, v. Heath WALSH and Amy Walsh, Respondents.
Jason M. Azzarone, James D. Wetzel, and Jeffrey M. Goodis of La Cava, Jacobson & Goodis, P.A., Tampa, for Petitioner. Calvin Robinson of The Robinson Law Group, LLC, Saint Petersburg, for Respondents.
Jason M. Azzarone, James D. Wetzel, and Jeffrey M. Goodis of La Cava, Jacobson & Goodis, P.A., Tampa, for Petitioner.
Calvin Robinson of The Robinson Law Group, LLC, Saint Petersburg, for Respondents.
LUCAS, Judge.
Dr. Hazem Al Andary petitions for a writ of certiorari directed to the circuit court's order denying his motion to dismiss the respondents', Heath and Amy Walsh's, complaint for medical malpractice. Because the Walshes' presuit expert opinion letter was not verified, we grant Dr. Al Andary's petition and quash the order below.
The Walshes' amended complaint alleged that Dr. Al Andary failed to exercise reasonable care while treating Mr. Walsh, which resulted in Mr. Walsh developing fulminant colitis. This condition, it was further alleged, necessitated Mr. Walsh receiving a diverting loop ileostomy and subsequent abdominal surgery.
In Florida, a medical malpractice action is subject to certain statutory requirements that must be complied with before initiating litigation. See generally J.B. v. Sacred Heart Hosp. of Pensacola , 635 So. 2d 945, 948 (Fla. 1994) ("Chapter 766 ... which governs standards for recovery in medical malpractice and medical negligence actions, imposes certain notice and presuit screening requirements upon a claimant."). Among the statutory requirements—and pertinent to the petition at bar—section 766.203(2), Florida Statutes (2020), requires the following:
Presuit investigation by claimant.—Prior to issuing notification of intent to initiate medical negligence litigation pursuant to s. 766.106, 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 from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.
(Emphasis added.)
The Walshes provided a corroborating letter from Dr. James M. Freer, an assistant professor of internal medicine at Washington University. Dr. Freer's letter detailed his review of the case and included a number of opinions he had formed concerning Mr. Walsh's care. What the letter did not have, though, was any kind of language that could reasonably be construed as a "verification" on the part of the doctor. Instead, the concluding paragraphs and signature block of the letter read:
In September of 2020, the Walshes served a notice of intent, which included a corroborating letter from Dr. Freer. In July of 2021, Dr. Al Andary filed a "motion to determine the sufficiency of plaintiffs' presuit and to dismiss all claims," in which he challenged, among other things, the sufficiency of Dr. Freer's letter. A hearing on Dr. Al Andary's motion was set for September 2, 2021. On the morning of the hearing, the Walshes filed a new letter from Dr. Freer. This second letter serves as the operative letter for purposes of this petition.
I reserve the right to review additional information provided to me and to expand upon, amend and/or supplement my opinions.
I hereby state that my opinions have never been disqualified and I have been licensed by the Florida Department of Health as a Medical Doctor Expert.
Sincerely,
/s/ James M Freer, MD
Assistant Professor of Internal Medicine Director, Procedure Service Washington University School of Medicine
A notarization from a Missouri notary public appeared next to Dr. Freer's signature. But there was no attestation, authentication, oath, verification (or, indeed, any indication at all) of what function the notarization was supposed to serve. By all appearances, the letter was simply stamped, dated, and signed by the notary public.
Dr. Al Andary raised several challenges to the sufficiency of the Walshes' presuit corroborating letter. We need only address one—whether Dr. Freer's letter constituted a "verified written medical expert opinion" under section 766.203(2)(b). The circuit court acknowledged that the notarization "doesn't have the wording we usually see. ... So that's a tough call." Nevertheless, the court deemed the verification sufficient and denied Dr. Al Andary's motion. Dr. Al Andary now seeks certiorari relief.
A writ of certiorari may be directed to a nonfinal, nonappealable order where the petitioner shows (1) a departure from the essential requirements of the law, (2) that results in a material injury for the remainder of the case, (3) that cannot be corrected in a postjudgment appeal. See Bd. of Trs. of the Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC , 99 So. 3d 450, 454 (Fla. 2012). The latter two prongs are considered jurisdictional for the writ. See Sabra Health Care Holdings III, LLC v. Est. of DeSantis by & through DeSantis , 331 So. 3d 1258, 1260 (Fla. 2d DCA 2022) (citing Cap. One, N.A. v. Forbes , 34 So. 3d 209, 212 (Fla. 2d DCA 2010) ). Because we are called upon to construe a statutory filing prerequisite of a medical malpractice claim, we have certiorari jurisdiction to consider this petition. See Williams v. Oken , 62 So. 3d 1129, 1133 (Fla. 2011) ("Florida courts have created an exception to the general rule—that certiorari review is inappropriate to review the denial of a motion to dismiss—and permit certiorari review when the presuit requirements of a medical malpractice statute are at issue." (citing Martin Mem'l Med. Ctr., Inc. v. Herber , 984 So. 2d 661, 662 (Fla. 4th DCA 2008) ; Lakeland Reg'l Med. Ctr. v. Allen , 944 So. 2d 541, 543 (Fla. 2d DCA 2006) )); see also Fassy v. Crowley , 884 So. 2d 359, 363 (Fla. 2d DCA 2004).
Turning, then, to whether the circuit court's denial of the motion constituted a departure from the essential requirements of the law, we conclude that it did. Section 766.203(2)(b) requires submission of a "verified written medical expert opinion." (Emphasis added.) The statutory requirement that the medical expert's written opinion be verified is clear and unambiguous. See State v. Peraza , 259 So. 3d 728, 730 (Fla. 2018) ("[W]hen the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." (alteration in original) (quoting Holly v. Auld , 450 So. 2d 217, 219 (Fla. 1984) )). Indeed, "verified" is a term of singular legal significance. Section 92.525, Florida Statutes (2020), sets forth the particulars of what makes a document "verified":
(1) If authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner:
(a) Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths;
(b) Under oath or affirmation taken or administered by an officer authorized under s. 117.10 to administer oaths; or
(c) By the signing of the written declaration prescribed in subsection (2).
(2) A written declaration means the following statement: "Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true," followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words "to the best of my knowledge and belief" may be added. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration.
....
(4) As used in this section:
....
(c) The requirement that a document be verified means that the document must be signed or executed by a person and that the person must state under oath or affirm that the facts or matters stated or recited in the document are true, or words of that import or effect.
The statute's subsections provide alternative methods for verifying a document; but whichever method is utilized, the subsection's requirements must be fully complied with. Here, Dr. Freer's letter included a stamp and signature that indicated it was executed before a notary public. But at most that would constitute a partial fulfillment of section 92.525(1)(a) because it does not appear that Dr. Freer took an oath or made an affirmation regarding his letter. Nor did he include anything that could be construed as a "written declaration" that would satisfy section 92.525(2). And nowhere in the letter did Dr. Freer "state under oath or affirm that the facts or matters stated or recited in the document are true, or words of that import or effect." See § 95.525(4)(c).
Dr. Freer's letter was unverified. As such, it did not satisfy the demands of section 766.203(2)(b). Certiorari is an appropriate remedy for that deficiency, and so we grant Dr. Al Andary's petition. See Oken , 62 So. 3d at 1133 ; Allen , 944 So. 2d at 543 ; Fassy , 884 So. 2d at 363.
In so holding, we do not consider Dr. Al Andary's separate argument that the statute of limitations would bar any future complaint the Walshes may later file against him.
Petition granted; order quashed.
BLACK and SMITH, JJ., Concur.