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Barclay v. Susac12/29/2000
UPON CONSIDERATION of Appellee's motion for rehearing and Appellant's response, the motion is granted to the extent that the opinion dated August 30, 2000, is hereby withdrawn and the attached opinion is substituted therefor.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
Appeal from the Circuit Court for Polk County; Charles B. Curry, Judge.
Laurie Barclay, M.D., appeals the order that disqualified her corroborating affidavit rendered in a medical malpractice action and reported her to the Division of Medical Quality Assurance. Because the motion that resulted in the court's order was untimely, we reverse.
We do not have a complete record of the underlying medical malpractice litigation; consequently, we are unaware of the basis for claims against other health care professionals, which were or may remain pending. Pertaining to this case, the record reveals that Mrs. Tippett was referred to Dr. Susac, a specialist in neurology. Dr. Susac ordered an MRI; and it revealed a serious condition that had not been previously diagnosed. Dr. Susac immediately conferred with a recognized specialist at the University of Florida and made recommendations for treatment to Mrs. Tippett's primary physician.
Some time later, Mrs. Tippett consulted an attorney concerning a potential claim of medical negligence. As is the custom since Fabre, the attorney included Dr. Susac in the investigation. Mrs. Tippett herself requested a copy of her records from Dr. Susac's office. These records were then sent to Dr. Barclay for an opinion as to whether there had been any negligence on the part of Dr. Susac in his treatment of Mrs. Tippett. See ยง 766.203, Fla. Stat. (1995). Dr. Barclay opined that Dr. Susac had failed to consult a specialist and to recommend appropriate treatment for Mrs. Tippett's problem, and she signed a corroborating affidavit expressing this opinion.
Unfortunately, for reasons unknown, the records obtained by Mrs. Tippett from Dr. Susac's office were not a complete set of records. While Dr. Susac's complete records negated Dr. Barclay's opinion, Dr. Barclay did not have these records. Although Dr. Susac recognized immediately that his records contradicted the opinion of Dr. Barclay, nothing was done during the ninety-day presuit screening period to call this to the attention of Mrs. Tippett's attorney or Dr. Barclay. As provided by section 766.203(3)(b):
Corroboration of lack of reasonable grounds for medical negligence litigation shall be provided with any response rejecting the claim by the defendant's submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(5), at the time the response rejecting the claim is mailed, which statement shall corroborate reasonable grounds for lack of negligent injury sufficient to support the response denying negligent injury.
The perfunctory affidavit, filed on Dr. Susac's behalf, declared that he was not negligent, but it did not cite the corroborating records in Dr. Susac's file and otherwise failed to comply with the requirements of section 766.203(3)(b).
More than six months after suit was filed, a summary judgment was requested on Dr. Susac's behalf. The affidavit accompanying the motion for summary judgment contained the documents missing from the records on which Dr. Barclay based her corroborating opinion. Summary judgment was granted in favor of Dr. Susac without opposition.
More than ten months after the trial court entered final summary judgment in favor of Dr. Susac, a motion was filed on his behalf seeking to disqualify Dr. Barclay's corroborating opinion. The m
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