Bery v. Fahel, D.O.

• Court: District Court of Appeal of Florida
• Decided: July 2, 2014
• Docket: 13-2291
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 2, 2014. Not final until disposition of timely filed motion for rehearing. ________________

No. 3D13-2291 Lower Tribunal No. 09-35784 ________________

Yuri Bery, as personal representative of the estate of Juliana Bery, et al., Appellants,

vs.

Ghassan Fahel, D.O., Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola, Judge.

Austin & Laurato, P.A., and Laura Datz and Michael V. Laurato (Tampa), for appellants.

Fann & Petruccelli, P.A., and Michael A. Petruccelli, and Steven A. Osher (Fort Lauderdale); Hicks, Porter, Ebenfeld & Stein, P.A., and Dinah Stein and Erik P. Bartenhagen, for appellee.

Before WELLS, LOGUE, and SCALES, JJ.

LOGUE, J. Yury Bery, as personal representative of the estate of Juliana Bery, and

others (collectively, “the estate”) appeal a final order of dismissal for failure to

comply with medical malpractice presuit requirements. As part of its presuit

investigation, the estate submitted an affidavit of Mark Khilnani, M.D., to serve as

the required medical expert opinion corroborating its claims against Ghassan

Fahel, D.O. See § 766.203, Fla. Stat. (2008). This court reversed the trial court’s

initial order of dismissal for failure to comply with presuit requirements and

remanded for an evidentiary hearing to determine “whether Dr. Khilnani qualifies

to act as an expert witness against Dr. Fahel, in light of Dr. Khilnani’s

qualifications and his attempt to withdraw his affidavit . . . .” Bery v. Fahel, 88 So.

3d 236, 238 (Fla. 3d DCA 2011). Upon remand, the trial court held an evidentiary

hearing and then entered a final order of dismissal on the basis that Dr. Khilnani is

unqualified to act as an expert witness against Dr. Fahel. We affirm because

competent, substantial evidence supports the trial court’s conclusion.

Affirmed.