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Wilkinson v. Golden1/28/1994
Appeal from the Circuit Court for Pinellas County; John S. Andrews, Judge.
Affirmed in part, reversed in part, and remanded.
Discovery, notice of intent, claimant, presuit, malpractice, informal, initiate, motion to dismiss, withheld, interrogatories, precipitating, provider, medical malpractice, health care, intentionally, answered, furnish, mailed, mandatory, certified mail, statutory duty, corroborating, negotiations, accompanied, carrier, dentist, dental
Cheryl Lange Wilkinson appeals the dismissal of her complaint alleging dental malpractice by Edward E. Golden, Jr., D.D.S. The trial court dismissed the complaint on a finding that Wilkinson intentionally withheld information in violation of the presuit discovery requirements governing medical and dental malpractice actions. We reverse because we conclude that at the time Wilkinson withheld information she was under no statutory duty to engage in presuit discovery.
In 1988, the Florida Legislature adopted sections 766.201 through 766.212, Florida Statutes (Supp. 1988), and strengthened section 766.106. These changes were enacted with the stated intent of providing a plan for the prompt resolution of medical malpractice claims. The legislature found that the cost of malpractice claims could be substantially reduced by requiring an early determination of the merits of claims. As this court has held, however, "these provisions were not intended to require presuit litigation of all the issues in medical negligence claims nor to deny parties access to the court on the basis of technicalities." Ragoonanan v. Associates in Obstetrics, 619 So. 2d 482, 484 (Fla. 2d DCA 1993).
In a medical malpractice action, the statute requires a presuit investigation by the claimant to ascertain that there are reasonable grounds to believe the claimant was injured by the negligence of a medical provider. As a component of this presuit investigation, the claimant must obtain an expert medical opinion corroborating such injury. at 766.203(2), Fla. Stat. (1991). The claimant must then notify the prospective defendant, by certified mail, of the intent to initiate litigation. at 766.106(2). The defendant has 90 days from this notice to determine if there are reasonable grounds to believe the claimant was not injured by the defendant's negligence. at 766.106(3). During this period, the parties are required to cooperate in "informal" discovery. @ 766.205. The claimant is allowed to file a lawsuit only after the 90 days has expired or after the defendant has denied the claim. @ 766.106(3).
A party's lack of good faith cooperation in the informal discovery may result in sanctions. at 766.205(3). As this court has held, however, only unreasonable conduct justifies the severe sanction of dismissing a claim. And even then, dismissal would not be mandatory. 619 So. 2d at 484. Ragoonanan provides guidance to trial courts when considering if sanctions, including dismissal, should be imposed for statutory violations. To decide if a sanction is warranted, the court must first determine that a statute has been violated.
We now turn to the facts in this case. On December 3, 1991, Wilkinson's attorney wrote to Golden's malpractice carrier and requested that it informally handle Wilkinson's malpractice claim. Replying on behalf of Golden and the malpractice carrier, Golden's attorney denied the request and insisted that Wilkinson follow the formal statutory requirements. The letter was accompanied by a request for information entitled "Response to Plaintiff's Notice of Intent." The letter and request for information were dated December 17, 1991.
This "Response to Plaintiff's Notice of Intent" was d
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