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Bonati v. Allen9/30/2005
This certiorari proceeding arises from a medical malpractice action brought by Robin Allen against Alfred Bonati, M.D.; Gulf Coast Orthopedic Center -- Alfred Bonati, M.D., P.A. ("Gulf Coast"); David Hirschauer, D.O.; Anthony R. Mork, M.D.; and Scott M. Haufe, M.D. Dr. Bonati petitions this court for a writ of certiorari to review an order that denied his motion to dismiss Allen's complaint based on her failure to comply with the presuit screening requirements of chapter 766, Florida Statutes (2002). We grant the petition and remand with instructions to dismiss Dr. Bonati individually from the suit.
Allen's complaint alleges the following facts: Drs. Bonati, Hirschauer, Mork, and Haufe were employees of Gulf Coast. On March 20, 2000, Allen consulted with Dr. Bonati regarding her neck and arm pain. She had a five-year history of discomfort pertaining to her cervical spine. Dr. Bonati recommended cervical foramenoplasty surgery at C6/C7 on the right. On March 23, 2000, Dr. Craig R. Wolff performed surgery on Allen that, the complaint alleged, "purportedly included a 'cervical foramenoplasty' and laminotomy at C6/C7 along with cervical nerve decompression." On July 19, 2000, Dr. Mork performed surgery, "which included microsurgical anterior discectomy with decompression of spinal cord and nerve roots at C3/C4 on the right." On July 26, 2000, Dr. Mork performed "micro surgical anterior cervical diskectomy, C6/C7, right and foramenostomy." The procedures performed by Drs. Mork and Wolff did not result in any significant anatomical changes to Allen's neck and did not alleviate Allen's problem or symptoms. Following each procedure Drs. Hirschauer and Haufe performed epidural steroid injections, purportedly to prevent a hematoma from hardening and irritating the nerve root.
Count I of the complaint alleged that Dr. Bonati was negligent as follows:
a. By failing to properly diagnose and treat the true etiology and cause of ROBIN ALLEN's neck pain, and by failing to recommend the proper treatment for same;
b. By improperly, negligently and unnecessarily recommending and performing "cervical foramenoplasties", when such procedures were inappropriate, ineffective and unnecessary . . . .
Count II of the complaint alleged the negligence of Dr. Mork, count III alleged the negligence of Dr. Hirschauer, count IV alleged the negligence of Dr. Haufe, and count V alleged the vicarious liability of Gulf Coast.
Prior to filing suit, Allen conducted a presuit investigation pursuant to section 766.203, Florida Statutes, and thereafter served a notice of intent to initiate litigation pursuant to section 766.106(2). In the notice, Alfred Bonati, M.D., was named as one of the persons alleged to have deviated from the prevailing professional standard of care. As corroboration of her claims, Allen submitted the affidavit of a board-certified orthopedic surgeon, Dr. John Ogden. Dr. Ogden's affidavit does not mention Dr. Bonati by name. Rather, it provides in pertinent part:
3. Based upon my review of [Allen's medical] records, it is my opinion that Anthony R. Mork, M.D., was negligent in performing the surgery of July 26, 2000, on Robin Allen, as the procedure described as a "micro surgical anterior cervical diskectomy, C6/C7, right and foramenostomy["] was improperly performed. Specifically, using the procedure as described made it virtually impossible for a significant amount of tissue to be removed which purportedly was causing the patient's problems. In fact, the pre-operative and post-operative MRI's look exactly the same, indicating that absolutely nothing significant was done for the patient on July 26, 2000. Moreover, the selection of this proce
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