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Vincent v. Kaufman9/17/2003
The trial court dismissed appellant's, Gina Vincent, medical malpractice action against Dr. Kaufman based on her failure to comply with statutory presuit discovery requirements. We reverse based on Kukral v. Mekras, 679 So. 2d 278 (Fla. 1996).
Vincent, a 34-year old female, was a patient of Dr. Kaufman, an OB/GYN, from July 1997 to June 1999. She had a long history of pelvic pain, endometriosis, pelvic adhesions and a ruptured ovarian cyst which resulted in the removal of her right ovary. Due to left ovarian cysts, Dr. Kaufman, in November 1998, performed a laparoscopy which resulted in the removal of Vincent's left ovary and fallopian tube. Vincent maintained that this procedure caused her to go into surgical menopause and that Dr. Kaufman deviated from acceptable medical standards by failing to obtain the necessary consent to the procedure and by failing to fully disclose the nature and extent of the proposed surgery or explore other avenues of treatment.
On February 2, 2001, Vincent gave notice of her intent to file a medical malpractice action against Dr. Kaufman. This notice was accompanied by an affidavit by her medical expert, internist Dr. Marchione. On February 14, 2001, Mary Jo Davi, the medical malpractice insurer's claims adjuster, sent Vincent a letter indicating receipt of the notice of intent and requesting certain presuit discovery in order to evaluate her claim. On May 2, 2001, Davi sent Vincent's counsel, Ken Frankel, a letter rejecting her claim. Davi stated that Vincent had not complied with the disclosure requirements during the presuit period. Davi further stated that the matter was investigated and reviewed by an expert who rendered an opinion of no negligence. On May 7, 2001, Vincent hand-delivered her response to the presuit discovery requests, including medical records requested. On June 27, 2001, Vincent filed her medical malpractice action.
Dr. Kaufman moved to dismiss the complaint on grounds that Vincent failed to comply with the medical malpractice requirements under Chapter 766 by not responding to his request for production during the 90-day presuit investigation period.
By the time of the hearing on the motion to dismiss, the statute of limitations had run, but it had not run when discovery was furnished on May 7, 2001. Frankel claimed that there were some difficulties in accumulating all of Vincent's medical records from various locations and that prior to the expiration of the 90-day period, his office had communications with Mary Jo Davi in which Davi was told that they might be a little late in providing all of the information. Davi allegedly told Frankel that was not a problem. As such, Vincent's discovery response was delivered a few days late.
Because the alleged agreement with the claims examiner was not in writing, the court agreed to defer ruling on the motion to dismiss and hold an evidentiary hearing on the limited issue of whether there was in fact an agreement to extend the presuit investigation period.
At the evidentiary hearing, Davi testified that she did not speak with anyone from Frankel's office and did not agree to extend the deadline for the presuit discovery. After hearing argument, the court dismissed Vincent's case with prejudice on the grounds that dismissal was mandatory under section 766.205, Florida Statutes, if there was a failure to comply with presuit requirements.
Section 766.205, Florida Statutes (2001), provides:
(1) Upon the completion of presuit investigation pursuant to s. 766.203, which investigation has resulted in the mailing of a notice of intent to initiate litigation in accordance with s. 766.106, corroborated by medical expert opin
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