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Vincent v. Kaufman9/17/2003
had a full and fair opportunity to investigate the claim prior to the initiation of the suit and within the statute of limitations period. The court held by the time presuit discovery was concluded, all requirements of the statute had been met and any potential prejudice to the defendants of having to defend against a frivolous suit had been eliminated. See id. at 284. This determination was in keeping with its conclusion that the medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict a Florida citizen's constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits. See id.
In De La Torre v. Orta, 785 So. 2d 553 (Fla. 3d DCA), review denied, 805 So. 2d 808 (Fla. 2001), the defendant physician did not respond to the presuit request for records or a notice of intent because he incorrectly assumed that the claim was barred by the statute of limitations. The trial court struck his pleadings and the Third District reversed based on Kukral. The court held that the striking of the defendant's defenses for failure to timely respond to presuit discovery requests was too harsh a remedy in the absence of prejudice to the plaintiff. See id. at 556. See also Popps, 806 So. 2d at 585 (under Kukral and De La Torre, dismissal of medical malpractice action for failing to comply with statutory presuit procedures was not warranted; although plaintiff did not comply with presuit procedures after his first notice of intent, he fully complied after his second notice of intent).
In this case, the dismissal of Vincent's medical malpractice action due to her failure to comply with presuit discovery requests within the 90- day period, the effect of which permanently barred her claim since the statute of limitations had since run, was not warranted where there was no prejudice to the defendant doctor.
While Vincent did not provide the requested documents within the 90-day period, she provided the requested documents five days later. It is quite apparent from the record that Dr. Kaufman's expert reviewed most of the same documents utilized by Vincent's expert in fashioning his opinion letter rejecting her claim of liability. Further, Vincent's compliance with the presuit discovery request took place prior to the running of the statute of limitations and prior to her filing suit. Thus, compliance was accomplished within the limitations period for filing suit. In keeping with Kukral, all of the requirements of the statute had been met and any potential prejudice to the defendants of having to defend against a frivolous suit had been eliminated.
REVERSED AND REMANDED WITH DIRECTIONS THAT APPELLANT'S AMENDED COMPLAINT BE REINSTATED.
FARMER, C.J., and KLEIN, J., concur.
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