Arline Hermoso v. New Life Plastic Surgery Corp.

• Court: District Court of Appeal of Florida
• Decided: July 16, 2025
• Docket: 3D2024-0856
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 16, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-0856 Lower Tribunal No. 20-24612-CA-01 ________________

Arline Hermoso, et al., Appellants,

vs.

New Life Plastic Surgery Corp., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko Sanchez, Judge.

Hodson Law Firm, P.A., and Donald J. Hodson; Dream Team Law, PLLC and Yelina Angulo, for appellants.

Lagos Law, Christos Lagos and Laura P. Denault, for appellee New Life Plastic Surgery Corp.; Shannin Law Firm, P.A. and Carol B. Shannin, (Orlando), for appellee Camille Chavez, M.D.

Before SCALES, C.J., and GORDO and GOODEN, JJ.

GORDO, J. Arline Hermoso (“Hermoso”) and her husband, Ivan Manzano

(“Manzano”), appeal a final order dismissing their second amended

complaint with prejudice entered in favor of Dr. Camille Chavez (“Dr.

Chavez”) and New Life Plastic Surgery Corporation (“New Life”). We have

jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We affirm.

I.

In November 2018, Dr. Chavez performed a breast lift and implant

replacement surgery on Hermoso at New Life. Following the procedure,

Hermoso served a notice of intent to initiate medical negligence litigation

against Dr. Chavez and New Life pursuant to section 766.203, Florida

Statutes.

In her notice, Hermoso alleged (1) Dr. Chavez negligently placed her

breast implants above the muscle rather than beneath it; and (2) she failed

to provide adequate post-operative care for any vascular compromise

resulting from the implant misplacement. Hermoso included an affidavit from

her expert, Dr. Paul Glat (“Dr. Glat”), who opined that reasonable grounds

exist to support a medical negligence claim, as a plastic surgeon exercising

reasonable care under similar circumstances would have (1) placed the

implants beneath the muscle; and (2) provided appropriate care to address

any vascular compromise resulting from such misplacement.

2 Dr. Chavez responded to the notice and denied the claim, asserting

Hermoso failed to comply with the statutory pre-suit investigation

requirement for a medical negligence action under section 766.203. In

support, Dr. Chavez submitted an affidavit from her expert, Dr. Darrell

Henderson (“Dr. Henderson”), who opined that her treatment was

appropriate and within the applicable standard of care.

Following the denial of her claim, Hermoso and Manzano filed the

underlying medical negligence action against Dr. Chavez and New Life. The

complaint was later amended, with the operative pleading being the second

amended complaint. Before filing an answer, Dr. Chavez and New Life

deposed Hermoso. During her deposition, Hermoso admitted Dr. Chavez

had placed the implants beneath the muscle, not above.

Dr. Chavez and New Life filed a motion to dismiss, arguing Hermoso

testified under oath the implants were placed beneath the muscle—directly

contradicting her negligence claim that they were placed above the muscle.

After the motion to dismiss was filed, Hermoso underwent surgery to remove

the implants. Neither Dr. Chavez nor New Life were informed of the

procedure. The trial court held a hearing on the motion to dismiss and denied

it without prejudice, finding the issue of implant placement remained

contested. The trial court then ordered an independent medical examination.

3 Dr. Chavez and New Life filed their answer and affirmative defenses,

asserting Hermoso did not conduct a reasonable pre-suit investigation or

obtain an appropriate expert opinion. Following these filings, Dr. Chavez

sought to coordinate an independent medical examination of Hermoso.

During the email exchange, Hermoso’s counsel disclosed the examination

could not proceed because the implants had already been removed by Dr.

Jason Altman (“Dr. Altman”). Dr. Chavez then deposed Dr. Altman, who

testified he had removed the implants which had previously been properly

placed beneath the muscle during Hermoso’s implant surgery.

Dr. Chavez and New Life filed a second motion to dismiss. Hermoso

filed a response, asserting she had conducted a reasonable investigation

before filing her claim. Following an evidentiary hearing, the trial court

granted the motion and dismissed the second amended complaint with

prejudice. In doing so, the court found (1) Hermoso failed to satisfy the

statutory requirement of a reasonable pre-suit investigation; and (2) no

separate claim for negligent post-operative care could proceed, as it was

inextricably linked to the improper placement of the implants. This appeal

followed.

4 II.

“A trial court’s ruling on a motion to dismiss is subject to de novo

review.” Skupin v. Hemisphere Media Grp., Inc., 314 So. 3d 353, 355 (Fla.

3d DCA 2020) (quoting Kopel v. Kopel, 229 So. 3d 812, 815 (Fla. 2017)).

“The ultimate question of whether a claimant has satisfied the threshold

requirements of the presuit notice investigation, warranting denial of the

defendant’s motion to dismiss, presents an issue of law.” Howell v.

Balchunas, 284 So. 3d 1180, 1183 (Fla. 1st DCA 2019). “[T]he trial court’s

ruling that the appellants’ corroborating affidavit failed to comply with the

statutory requirements is reviewed de novo.” Oliveros v. Adventist Health

Sys./Sunbelt, Inc., 45 So. 3d 873, 876 (Fla. 2d DCA 2010).

III.

On appeal, Hermoso argues the trial court erred in dismissing her

second amended complaint with prejudice because her notice of intent to

litigate satisfied the statutory requirement of a reasonable pre-suit

investigation. 1 Based on the record before us, we find this argument

meritless.

The Medical Malpractice Act requires that “[p]rior to issuing notification

of intent to initiate medical negligence litigation . . . the claimant shall conduct

1 We affirm the other issues raised without further discussion.

5 an investigation to ascertain that there are reasonable grounds to believe

that: (a) Any named defendant in the litigation was negligent in the care or

treatment of the claimant; and (b) Such negligence resulted in injury to the

claimant.” § 766.203(2)(a)-(b), Fla. Stat. In addition, “[c]orroboration of

reasonable grounds to initiate medical negligence litigation shall be provided

by the claimant’s submission of a verified written medical expert opinion from

a medical expert . . . at the time the notice of intent to initiate litigation is

mailed, which statement shall corroborate reasonable grounds to support the

claim of medical negligence.” § 766.203(2), Fla. Stat.

“[T]he presuit procedures delineated in Chapter 766 are ‘intended to

address a legitimate legislative policy decision relating to medical

malpractice and establish a process intended to promote the settlement of

meritorious claims at an early stage without the necessity of a full adversarial

proceeding.’” Largie v. Gregorian, 913 So. 2d 635, 638 (Fla. 3d DCA 2005)

(quoting Williams v. Campagnulo, 588 So. 2d 982, 983 (Fla. 1991)). “[T]he

purpose of the presuit notice and screening requirements set forth in the

statute are designed to facilitate the amicable resolution of medical

malpractice claims[.]” Id. (quoting Patry v. Capps, 633 So. 2d 9, 11 (Fla.

1994)) (internal quotation marks omitted).

6 The implementation of this policy “requires a claimant to determine

whether reasonable grounds exist to believe that someone acted negligently

in the claimant’s care or treatment and that this negligence caused the

claimant’s injury.” Kukral v. Mekras, 679 So. 2d 278, 280 (Fla. 1996). This

mandates an investigation and corroboration of that investigation by “a

verified written medical expert opinion.” § 766.203(2), Fla. Stat.

“[A]n investigation consists of: (1) review of the case against each

potential defendant; (2) consultation with a medical expert; and (3) written

corroboration of negligence by a medical expert[.]” Largie, 913 So. 2d at

638. The corroborative medical opinion “assures the Defendant[], and the

court, that a medical expert has determined that there is justification for the

Plaintiffs’ claim, i.e., that it is not a frivolous medical malpractice claim.”

Kukral, 679 So. 2d at 282 (emphasis omitted).

Under the Medical Malpractice Act, Hermoso was required to conduct

a pre-suit investigation sufficient to ascertain reasonable grounds for her

claim and to corroborate those grounds with a verified written medical expert

opinion before issuing her notice of intent. See § 766.203(2), Fla. Stat. She

failed to do so. Her notice of intent was premised on the negligent placement

of the implants above the muscle and the failure to provide proper post-

7 operative care to address the vascular compromise resulting from that

misplacement.

Hermoso’s own testimony, however, established the implants were

properly placed beneath the muscle. Dr. Altman, who removed the implants,

confirmed they had been placed beneath the muscle prior to removal. Based

on this, there can be no reasonable grounds to support the allegations of

improper placement or the vascular compromise resulting from such

misplacement. While requiring an expert opinion as part of the pre-suit

investigation assures the defendant and the court that the claim was

preceded by a reasonable investigation, Dr. Glat’s affidavit completely fails

to satisfy that purpose.2 Because Hermoso’s notice of intent to litigate failed

to comply with the statutory requirement of a reasonable pre-suit

investigation, we find the trial court properly dismissed her second amended

complaint with prejudice. See Largie, 913 So. 2d at 638-39 (“Chapter 766 of

the Florida Statutes sets out a complex presuit investigation procedure that

both the claimant and defendant must follow before a medical negligence

claim may be brought in court . . . The first step in implementing this policy

2 It shocks the conscience that a medical expert, under oath and penalty of perjury, would assure the court there was justification for the plaintiff’s claim that the surgeon improperly placed the implants above the muscle when both the plaintiff and Dr. Altman testified the implants were in fact placed below the muscle.

8 requires a claimant to determine whether reasonable grounds exist to

believe that someone acted negligently in the claimant’s care or treatment

and that this negligence caused the claimant’s injury. This requires both

investigation and corroboration of the results of the investigation by a verified

written medical expert opinion . . . Requiring a written expert opinion as part

of the presuit investigation assures the defendant that the claim was

preceded by a reasonable investigation; that there is justification for the

Plaintiffs’ claim, i.e., that it is not a frivolous medical malpractice claim; and

that the claim is legitimate. The expert opinion provided to [the appellee]

completely fails to satisfy these purposes . . . Because the record clearly

shows that the [appellants] failed to conduct a reasonable investigation . . .

the legislative purpose of Chapter 766 was frustrated, mandating elimination

of the claim against [the appellee] from this suit.”) (internal quotation marks

and citations omitted); Goldfarb v. Urciuoli, 858 So. 2d 397, 398 (Fla. 1st

DCA 2003) (“[T]o allow a party to fully litigate a suit where the proper presuit

requirements were not met would frustrate the purpose of the Medical

Malpractice Reform Act.”); § 766.206(2), Fla. Stat. (“If the court finds that the

notice of intent to initiate litigation mailed by the claimant does not comply

with the reasonable investigation requirements . . . including a review of the

9 claim and a verified written medical expert opinion by an expert witness . . .

the court shall dismiss the claim . . . .”).

Affirmed.