Summary
finding irreparable harm, proceeding with certiorari review, and ultimately granting relief and quashing trial court's order denying health care provider's motion to dismiss based on plaintiff's failure to comply with pre-suit requirements, even though plaintiff maintained he had asserted simple negligence claim and not medical malpractice claim
Summary of this case from Rockledge HMA, LLC v. LawleyOpinion
Nos. 5D12–1235 5D12–1245.
2012-12-7
OMNI HEALTHCARE, INC., Petitioner, v. Donald MOSER, Respondent. Adwait Jathal, M.D., Petitioner, v. Donald Moser, Respondent.
Petition for Certiorari Review of Order, from the Circuit Court for Brevard County, Robert T. Burger, Judge. Wilbert R. Vancol and Thomas E. Dukes, III, of McEwan, Martinez & Dukes, P.A., Orlando, for Petitioner, Omni Healthcare, Inc. Michael R. D'Lugo, of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Orlando, for Petitioner Adwait Jathal, M.D.
Petition for Certiorari Review of Order, from the Circuit Court for Brevard County, Robert T. Burger, Judge.
Wilbert R. Vancol and Thomas E. Dukes, III, of McEwan, Martinez & Dukes, P.A., Orlando, for Petitioner, Omni Healthcare, Inc. Michael R. D'Lugo, of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Orlando, for Petitioner Adwait Jathal, M.D.
Frank J. Shaughnessy, of Law Offices of Frank Shaughnessy, P.A., Palm Bay, for Respondent.
PER CURIAM.
Respondent filed a complaint attempting to allege simple negligence against Petitioners, who are a doctor, Adwait Jathal, and a physician group practice, Omni Healthcare, Inc. It is clear that what is alleged is a claim for medical malpractice. Petitioners filed a Motion to Dismiss in the trial court based on Respondent's failure to comply with the presuit requirements of section 766.106, Florida Statutes. The trial court denied the Motion, and Petitioners each filed a Petition for Writ of Certiorari with this court seeking review of that order.
Although these cases were not consolidated on appeal, we review them together because they arise from the same facts and present the identical issue.
We conclude that because Respondent failed to comply with the statutory presuit requirements, the trial court departed from the essential requirements of law in refusing to dismiss Respondent's complaint. We grant the Petitions, quash the order of denial, and remand for entry of an order granting Petitioners' Motion to Dismiss. See Williams v. Oken, 62 So.3d 1129, 1133–34 (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. See, e.g., 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). The certiorari exception for the chapter 766 presuit requirements is premised on the purpose of the Medical Malpractice Reform Act—to avoid meritless claims and to encourage settlement for meritorious claims.”).
See also Kissimmee Health Care Assocs. v. Garcia, 76 So.3d 1107, 1108 n. 1 (Fla. 5th DCA 2011) (“Although certiorari generally does not lie to review the denial of a motion to dismiss, there is a well-established exception for motions to dismiss for failure to comply with presuit conditions precedent.” (citation omitted)); Cent. Fla. Reg'l Hosp. v. Hill, 721 So.2d 404 (Fla. 5th DCA 1998).
PETITIONS GRANTED; ORDER QUASHED; REMANDED.