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Largie v. Gregorian7/13/2005
Before FLETCHER, WELLS, and CORTIÑAS, JJ.
Winston and Luvon Largie, plaintiffs below, appeal a summary judgment in their medical malpractice action in favor of defendant, registered nurse practitioner Jessica Wang. Because we agree that the Largies failed to comply with presuit investigation requirements delineated in Chapter 766 prior to running of the statute of limitations, we affirm.
In March and April 2000, Winston Largie was seen by Jessica Wang, an advanced registered nurse practitioner, at the offices of Dr. Michael Gregorian. Nurse Wang's notes confirm that a blood test performed on Mr. Largie during this period showed an elevated prostate specific antigen (PSA) level and that a follow-up PSA test should be performed. Although Mr. Largie continued to be seen at Dr. Gregorian's offices until the following May, no follow up PSA tests were done.
In August 2001, Mr. Largie started seeing Dr. Steven Meyerson. Dr. Meyerson also had a blood test performed on Mr. Largie, which, like the test performed while he was a patient of Dr. Gregorian's office, showed that Mr. Largie had an elevated PSA level. Dr. Meyerson did not, however, immediately refer Mr. Largie to a urologist. In May 2002, Mr. Largie was diagnosed with prostate cancer.
In late 2002, the Largies served Dr. Gregorian with a notice of intent to initiate a medical malpractice action. That notice was accompanied by a corroborating affidavit stating:
AFFIDAVIT OF EXPERT OPINION
1. My name is Frank Waxman. I am a physician licensed to practice medicine in the State of Florida. I am a primary care physician.
2. I have review (sic) the medical records of Winston Largie including the office records of Dr. Michael Gregorian.
3. Mr. Largie had an elevated PSA in April 2000 which required further follow up. Dr. Gregorian as well as Dr. A. Scott Dansky failed to do a follow up to Mr. Largie's elevated PSA.
4. Failure to do a follow up to an elevated PSA is a deviation from the standard of care. In this case it is probable that such failure caused a delay in the diagnosis of Mr. Largie's prostate cancer. Such delay probably caused the cancer to develop further causing a negative impact on the patient.
5. No opinion of mine has been disqualified in any court.
Under penalty of perjury, I declare that I have read the above affidavit and the facts stated in it are true.
(Emphasis added).
On January 10, 2003, the Largies filed suit against Dr. Gregorian for medical malpractice. Although they had served neither a notice of intent to initiate litigation nor a corroborating affidavit on Nurse Wang, they alleged a medical malpractice claim against her as well. It was not until seven months after the action was filed against Nurse Wang that she was served with a notice of intent and the same corroborating affidavit that had been served on Dr. Gregorian.
The action against Nurse Wang was dismissed and re-filed in November 2003. See § 766.106(3)(a), Fla. Stat. (2002)(" o suit may be filed for a period of 90 days after notice is mailed to any prospective defendant . . . [during which] the prospective defendant's insurer or self-insurer shall conduct a review to determine the liability of the defendant"). Nurse Wang then challenged the Largies' compliance with Chapter 766 presuit investigation requirements claiming that they had failed to provide corroboration of reasonable grounds to support a claim of medical malpractice. The trial court, following two hearings on the matter, agreed, stating that "each defendant has a right and you have an obligation as plaintiff's lawyer to do a se
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