By: J. Clancey Bounds, Esq.
It is no secret that the appellate courts, over the past several years, have undergone a shift in their character, nature, and makeup. District Courts of Appeal that were once reliably pro-access to courts are now, contrary to their former disposition, rendering opinions that reflect a willingness to limit access to the courts for the citizens of this state. An important example is the recent decision, Rafferty v. Martin Memorial Medical Center, Inc., 2022 WL 852304 (2022).1 This case involved a brachial plexus injury to a newborn. The Plaintiffs brought an action against the nurse midwife, her employer, and Martin Memorial Hospital. The action as to Martin Memorial Hospital was for the vicarious liability for the negligence of its employed nurses as well as an action for negligent hiring, training, and supervision. During presuit, Plaintiff forwarded Notices of Intent with two separate corroborative affidavits. The first was from a nurse midwife and the second from an obstetrician, familiar with both the standard of care of nurses and nurse midwives. It was argued by appellate counsel that the content of the affidavits was sufficient to corroborate a reasonable basis to bring the litigation and thus a reasonable investigation had occurred. The Defense argued that the affidavits did not identify reasonable grounds to bring an action against the nurses themselves, specifically and thus the affidavits were insufficient. The trial court agreed and dismissed the case as to the Hospital.
On appeal, the 4th District has now agreed and has held that an affidavit in support of a claim against a hospital for liability for its nurses, must address the deficiencies in the care provided by the nursing staff in order to be sufficient.
To many practitioners this may seem an obvious, fair, and unsurprising ruling. However, in the past, a myriad of cases have required substantially less and allowed cases to move forward after presuit. They have done so by looking at the simple wording of the statute and coming to the conclusion as to what minimally is required to sustain the publics' access to the courts. It is here that the courts are shifting away from liberal interpretation and into an interpretation that limits access.
Florida Statutes § 766.104(1) requires an attorney representing a claimant to conduct a reasonable investigation prior to moving forward with any medical malpractice litigation.
- No action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or in contract, unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.2
As part of that effort, Florida Statutes § 766.203(2) requires the plaintiff to provide to the perspective defendant a written medical expert opinion that "shall corroborate reasonable grounds to support the claim of medical negligence." Nothing in the statutory language requires that the affidavit "address the deficiencies" of the care provided by the perspective defendant but rather only that a "statement shall corroborate reasonable grounds to support the claim of medical negligence."
As the law surrounding Florida Statute § 766 evolved, a frequent issue decided by the Appellate Courts was the sufficiency of the presuit affidavit's content. This was last re-stated by the Supreme Court in Morris v. Muniz, 252 So.3d 1143 (Fla 2018) where the court stated:
- [W]e have explained the purpose of the presuit corroborating expert opinion as follows:
- The expert opinion to be supplied is not one which delineates how the defendants were negligent. Section 766.104 refers to a written medical opinion "that there appears to *13 be evidence of medical negligence." Section 766.203(2) provides that the medical expert opinion is for "corroboration of reasonable grounds to initiate medical negligence litigation." And [section] 766.205(1) specifically provides that the medical opinion need only corroborate that "there exists reasonable grounds for a claim of negligent injury." Obviously, the corroborative medical opinion adds nothing to the Plaintiffs' notice of their claim. It merely assures the Defendants, and the court, that a medical expert has determined that there is justification for the Plaintiffs' claim, i.e., that it is not a medical malpractice claim.
With its newest ruling, the Fourth District Court of Appeal has substantially moved away from the Supreme Court's much more liberal interpretation in 2018. In its decision, the Fourth District has stated that a presuit affidavit must now state deficiencies in the care provided by a health care provider as opposed to simply corroborating that "there exists reasonable grounds for a claim of negligent injury." In doing so they cite to the "plain text" of section 766.206(2) and ignore the much more relevant sections, § 766.203(2) and § 766.205(1).
With the above in mind, a practitioner obtaining affidavits in support of her notice of intent should obtain an affidavit that states, with some particularity, what the (some) specific deviations from the standard of care of the target defendant are. Simply stating, as was proper in the past and is proper under the plain meaning of the statute, that the expert has corroborated that reasonable grounds exist to bring an action, will no longer suffice under Rafferty.3 Further and more importantly, the previously customary practice of sending a notice of intent to a hospital for its vicarious liability of a non-employed physician and then, at the end of presuit, suing the hospital for direct liability for its own staff of nurses is in jeopardy under Rafferty. Now, under the new Courts' likely positions, strict compliance with the requirements of Florida Statute § 766 is advised and reliance on older cases to support the use of minimal presuit affidavits is not recommended.
J. Clancey Bounds is the Founder and a practicing attorney for the Bounds Law Group, located in Maitland Florida. He is admitted to the bar and practices in Florida, Arizona, California, District of Columbia, and Texas.
1 As of the writing of this article, the opinion in Rafferty v. Martin Memorial Medical Center, Inc. had not been released for publication in the permanent law reports.
2 Florida Statute 766.104(1)
3 Rafferty v. Martin Memorial Medical Center, Inc. 2022 WL 852304
