Eric Bystrak, Lpn, Citrus Ambulatory Surgery Center, Inc., and Amsurg, LLC v. Dahlia McLean

• Court: District Court of Appeal of Florida
• Decided: October 6, 2025
• Docket: 6D2025-1027
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2025-1027 Lower Tribunal No. 2024-CA-006705 _____________________________

ERIK BYSTRAK, LPN, CITRUS AMBULATORY SURGERY CENTER, INC., and AMSURG, LLC,

Petitioners, v. DAHLIA MCLEAN,

Respondent. _____________________________

Petition for Writ of Certiorari to the Circuit Court for Orange County. Margaret H. Schreiber, Judge.

October 6, 2025

MOE, A.G., Associate Judge.

Petitioners Erik Bystrak, LPN (“Nurse Bystrak”), Citrus Ambulatory Surgery

Center, Inc. (“CASC”), and AmSurg, LLC (collectively, the “Providers”) invoke our

certiorari jurisdiction and request that we quash the order denying their Motion to

Dismiss Plaintiff’s Complaint for Failure to Comply with the Presuit Requirements

or, in the Alternative, Motion to Determine Sufficiency of Plaintiff’s Presuit

Investigation and Motion to Dismiss Plaintiff’s Complaint. We have jurisdiction.

Art. V, § 4(3), Fla. Const. Because the trial court departed from the essential

requirements of the law in denying the motion to dismiss as to Nurse Bystrak, we grant the petition in part and quash the part of the order denying the motion to

dismiss as to him.

I.

After a colonoscopy in June 2022, Dahlia McLean alleges that she was left

alone to dress herself while she was still under the effects of a sedative, and she fell.

She alleges that Nurse Bystrak left her alone and the fall took place at a surgery

center operated by CASC and AmSurg.

In June 2024, Ms. McLean filed a complaint alleging medical negligence

against the Providers. The Providers moved to dismiss, alleging that Ms. McLean

failed to comply with the presuit requirements of sections 766.106 and 766.203,

Florida Statutes (2024).

In response, Ms. McLean argued that the Providers waived compliance with

the presuit requirements because CASC and AmSurg failed to comply with her

request for medical records, as provided by Chapter 766. The Providers argued that

no failure on the part of CASC or AmSurg can be imputed to Nurse Bystrak, and in

any event the statute does not provide that the failure to produce records waives all

presuit requirements. After a hearing, the trial court denied the motion to dismiss

and directed the Providers to respond to the complaint. The Providers then

petitioned for a writ of certiorari.

2 II.

A petitioner seeking certiorari relief after the denial of a motion to dismiss

must establish (1) that the trial court departed from the essential requirements of the

law, (2) a material injury for the remainder of the case, and (3) that the injury cannot

be corrected on a postjudgment appeal. Williams v. Oken, 62 So. 3d 1129, 1132

(Fla. 2011). Certiorari review is appropriate to ensure that the procedural aspects of

Chapter 766 are met. Id. at 1137; but see Fla. R. App. P. 9.130(a)(3)(H) (treating

denial of motion to dismiss on the basis of a corroborating expert’s qualifications as

an appealable non-final order).

III.

Florida has enacted a comprehensive statutory scheme governing medical

malpractice cases. In that statutory scheme, section 766.104(1), Florida Statutes

(2024), provides that “[n]o action shall be filed for personal injury or wrongful death

arising out of medical negligence . . . unless the attorney filing the action has made

a reasonable investigation as permitted by the circumstances to determine that there

are grounds for a good faith belief that there has been negligence in the care or

treatment of the claimant.” The same subsection provides that counsel filing a

complaint for medical malpractice must certify “that such reasonable investigation

gave rise to a good faith belief that grounds exist for an action against each named

defendant” and, “[f]or purposes of this section, good faith may be shown to exist if

3 the claimant or his or her counsel has received a written opinion, which shall not be

subject to discovery by an opposing party, of an expert as defined in s. 766.102 that

there appears to be evidence of medical negligence.” § 766.104(1).

Chapter 766 requires that a medical malpractice claimant “conduct an

investigation to ascertain that there are reasonable grounds” to assert a medical

negligence claim. § 766.203(2). As part of that presuit investigation, the claimant

must ascertain that there are reasonable grounds to believe that the defendants named

in the litigation were negligent in the claimant’s care and treatment and that the

negligence resulted in the claimant’s injuries. § 766.203(2)(a), (b).

A medical malpractice claimant must serve a prospective defendant with a

notice of intent to initiate medical negligence litigation. § 766.106. When that notice

of intent is mailed to the prospective defendant, it must include corroboration of the

claimant’s reasonable investigation into the claim. § 766.203(2). The required

corroboration “shall be provided by the claimant’s submission of a verified written

medical expert opinion from a medical expert as defined in s. 766.202(6), 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.” Id.

Since a prospective medical malpractice claimant is required to conduct a

“reasonable investigation,” Chapter 766 requires that a medical provider to whom a

plaintiff directs a demand for medical records must cooperate in that investigation

4 by providing medical records on request. “Copies of any medical record relevant to

any litigation of a medical negligence claim or defense shall be provided to a

claimant or a defendant, or to the attorney thereof, at a reasonable charge within 10

business days of a request for copies.” § 766.204(1), Fla. Stat. (2024).

If a claimant demands medical records under section 766.204(1) and the party

who receives that demand fails to provide the records, section 766.204(2) creates a

penalty for the non-compliant party. See § 766.204(2). The “[f]ailure to provide

copies of such medical records . . . shall constitute evidence of failure of that party

to comply with good faith discovery requirements and shall waive the requirement

of written medical corroboration by the requesting party.” § 766.204(2) (emphasis

added).

After this mandatory presuit investigation is complete and before a complaint

for medical negligence can be filed, the claimant “shall notify each prospective

defendant” of the claimant’s intent to initiate a medical malpractice action using one

of the statutorily-specified “verifiable means.” § 766.106(2)(a). Among other

things, the notice of intent “must include, if available, a list of all known health care

providers seen by the claimant for the injuries complained of subsequent to the

alleged act of negligence, all known health care providers during the 2-year period

before the alleged act of negligence who treated or evaluated the claimant, copies of

5 all of the medical records relied upon by the expert in signing the affidavit,” and a

statutorily-provided form. § 766.106(2)(c).

The Legislature created statutorily-mandated consequences for failure to

comply with the reasonable investigation requirements of Chapter 766. Section

766.206(1) provides a mechanism for “any party” to move the circuit court for a

determination “whether the opposing party’s claim or denial rests on a reasonable

basis.” § 766.206(1), Fla. Stat. (2024). And section 766.206(2) provides that “[i]f

the court finds that the notice of intent to initiate litigation mailed by the claimant

does not comply with the reasonable investigation requirements of ss. 766.201-

766.212, including a review of the claim and a verified written medical expert

opinion by an expert witness as defined in s. 766.202, or that the authorization

accompanying the notice of intent required under s. 766.1065 is not completed in

good faith by the claimant, the court shall dismiss the claim.” § 766.206(2), Fla.

Stat. (2024) (emphasis added).

IV.

The Providers’ motion argued that (1) the complaint purported to contain a

certificate of counsel as required by section 766.203, but the certificate did not state

that any investigation was done pursuant to section 766.104; (2) the notice of intent

was dated for February 13, 2023 but was not served on the Providers until February

20, 2024; (3) the notice of intent did not include a verified medical expert opinion

6 as required by sections 766.106 and 766.203; (4) Ms. McLean did not serve a proper

medical record request on all defendants, but she instead claims that all defendants

waived the verified medical expert requirement by failing to timely respond to the

records request; (5) the Providers did not waive the requirement of a corroborating

verified medical expert opinion pursuant to section 766.203; and, therefore (6) the

notice of intent did not comply with the presuit requirements and must be dismissed.

The Providers also alleged that, during the presuit period, they served Ms.

McLean with informal discovery seeking copies of her alleged requests for records,

proof of service of those requests, and evidence of her reasonable investigation. The

Providers asserted that, although Ms. McLean stated that copies were attached when

she responded to those informal requests, in fact no copies were attached. In their

motion, the Providers further argued that they served Ms. McLean with a presuit

denial accompanied by a verified written affidavit of Sharon Coffey, RN and

detailed the defects in Ms. McLean’s presuit compliance. The motion stated that

before the expiration of the statute of limitations, Ms. McLean neither responded to

the Providers’ denial nor cured the statutory presuit defects the Providers identified.

When the Providers moved to dismiss Ms. McLean’s complaint under section

766.206(2), the trial court found that CASC waived the requirement that a

corroborating affidavit be served contemporaneously with the notice of intent. The

waiver was predicated on CASC’s failure to provide medical records within ten days

7 of the request under section 766.204(2). The court concluded that “under the

circumstances, the waiver extends to Defendant Eric Bystrak, LPN.”

V.

Compliance with medical malpractice statutory presuit requirements is a

mandatory condition precedent to filing a medical malpractice action, and failure to

timely comply with the notice of intent requirements “requires the dismissal of [the]

action.” Williams v. Campagnulo, 588 So. 2d 982, 982 (Fla. 1991); § 766.206 (“If

the court finds that the notice of intent to initiate litigation mailed by the claimant

does not comply with the reasonable investigation requirements of ss. 766.201-

766.212, including a review of the claim and a verified written medical expert

opinion by an expert witness as defined in s. 766.202, or that the authorization

accompanying the notice of intent required under s. 766.1065 is not completed in

good faith by the claimant, the court shall dismiss the claim.”).

Ms. McLean did not serve Nurse Bystrak with a request for records under

section 766.204(1). Yet the trial court ruled that Nurse Bystrak bore the statutory

consequences for non-compliance with this section. The court arrived at this

conclusion because Ms. McLean argued that the statutory consequences outlined in

section 766.204(2) fairly applied to Nurse Bystrak because Nurse Bystrak “bore a

legal relationship” with CASC and AmSurg, so CASC and AmSurg’s failure to

timely comply should be imputed to Nurse Bystrak. Of course, Ms. McLean

8 acknowledges that the “legal relationship” language appears nowhere in the statute;

that language comes from Florida Rule of Civil Procedure 1.650. Indeed, section

766.204(2) makes clear by its own terms that a failure to comply under 766.204(2)

“shall constitute evidence of failure of that party to comply.” § 766.204(2)

(emphasis added). But the net effect of the trial court’s ruling in favor of Ms.

McLean on this issue is that Ms. McLean—who, again, never served Nurse Bystrak

with a request for records—was relieved of the obligation to provide Nurse Bystrak

with that which the statute otherwise required her to provide: written medical

corroboration of her claim, as part of the presuit notice of intent.

Nurse Bystrak contends that the trial court’s ruling departed from the essential

requirements of the law, and we agree. Now, Ms. McLean is correct that section

766.204(2) provides that a failure to respond to a request for records served under

section 766.204(1) “shall constitute evidence of failure of that party to comply with

good faith discovery requirements and shall waive the requirement of written

medical corroboration by the requesting party.” § 766.204(2) (emphasis added).

And we do not disturb the trial court’s finding that Ms. McLean served a request for

records on CASC and AmSurg and that both of those providers failed to timely

respond. Nor do we see error in the court’s conclusion that a failure of those two

providers to respond to the request for records, if it occurred, would have operated

as a waiver of Ms. McLean’s obligation to provide them with written medical

9 corroboration. However, the trial court departed from the essential requirements of

the law when it found that the waiver by CASC and AmSurg extended to Nurse

Bystrak.

The language of section 766.204(2) clearly establishes that the waiver

provisions found in subsection (2) are intended to penalize a “failure of that party”

who fails to comply with subsection (1). Since Nurse Bystrak was never served with

a request under subsection (1), subsection (2) does not apply to him. It is not

necessary to conduct any complicated analysis of the text, because simply looking

at the ordinary meaning of the words makes it clear: the failure to respond to a

medical records request under section 766.204(1) subjects “that party” to the

consequences outlined in section 766.204(2). § 766.204(2). Indeed, more than

twenty years ago our sister court concluded as much in Tapia-Ruano v. Alvarez, 765

So. 2d 942, 943 (Fla. 3d DCA 2000), which rightly held that a hospital’s failure to

provide medical records could not be imputed to a doctor. Our reading of the statute

is consistent with Tapia-Ruano’s holding.

We categorically reject Ms. McLean’s argument that the Florida Supreme

Court’s adoption of a rule of civil procedure has the operation of rewriting or

expanding the substantive law enacted in a statute. Essentially, Ms. McLean

contends that when the Florida Supreme Court adopted rule 1.650, it rewrote the

statute and expanded the waiver provisions of section 766.204(2). Looking at the

10 text of section 766.204(2), it provides that when a party fails to comply with the

requirement to provide medical records within ten business days of a request under

subsection (1), subsection (2) provides that the failure to timely comply constitutes

“evidence of failure of that party to comply with good faith discovery requirements,”

and that party “shall waive the requirement of written medical corroboration by the

requesting party.” Ms. McLean argues that, because the Florida Supreme Court

adopted language in rule 1.650 that does not track the statute, the rule allows for

notices to one prospective defendant to operate as notices to “any other prospective

defendant who bears a legal relationship to the prospective defendant served with

the notice,” and ought to be read as expanding the scope of a waiver under section

766.204(2). Under Ms. McLean’s argument, the adoption of rule 1.650 would

expand the waiver beyond “that party” who failed to comply with subsection (1) to

“any other prospective defendant who bears a legal relationship” with the non-

compliant party.

The first problem with Ms. McLean’s argument is that rule 1.650 is

inapplicable here. The plain language of the rule confines its applicability to the

service of a notice of intent to initiate litigation and the informal discovery that

follows the issuance of that notice. See Fla. R. Civ. P. 1.650(b), (c). Ms. McLean’s

contention is that CASC and AmSurg’s presuit failure relates to an earlier stage in

the presuit process not governed by the rule. See, e.g., Brundage v. Evans, 295 So.

11 3d 300, 305 (Fla. 2d DCA 2020) (discussing difference between information

gathered during presuit investigation before service of the notice of intent under

section 766.204(2) and informal discovery occurring after service of the notice of

intent under section 766.106(6)).

Even if we believed rule 1.650 applied, Ms. McLean’s contention simply

misapprehends the separation of powers in Florida’s Constitution, the Florida

Legislature’s policy-making role, the nature of legislative power, and the nature of

the Florida Supreme Court’s constitutional power to make rules. Under the Florida

Constitution, “the legislative power of the state” is vested in the Florida Legislature.

Art. III, § 1, Fla. Const. The legislature has the power to make law that, once signed

into law by the Governor, expresses the public policy of our state. See art. III, § 8(a),

Fla. Const. (“Every bill passed by the legislature shall be presented to the governor

for approval and shall become a law if the governor approves and signs it, or fails to

veto it within seven consecutive days after presentation.”).

The legislative power is defined as “[t]he power to make laws and alter them;

a legislative body’s exclusive authority to make, amend, and repeal laws.”

Legislative Power, Black’s Law Dictionary 1081 (12th ed. 2024). Like many

statutes, Chapter 766 reflects the legislature’s policy judgment about the appropriate

balancing of the competing interests of medical malpractice plaintiffs and

defendants. See Art. I, § 2, Fla. Const. (defining the rights to “acquire, possess, and

12 protect property” as “Basic rights” the Florida Constitution exists to protect); Art. I,

§ 21, Fla. Const. (“The courts shall be open to every person for redress of any injury,

and justice shall be administered without sale, denial or delay.”); Art. I, § 22, Fla.

Const. (“The right of trial by jury shall be secure to all and remain inviolate.”); Art.

X, §§ 25, 26, Fla. Const. (relating to adverse medical incidents and medical

malpractice actions).

Except where the people of Florida have specifically authorized it in the

constitution, power-sharing between branches is not permitted because “[n]o person

belonging to one branch shall exercise any powers appertaining to either of the other

branches unless expressly provided herein.” Art. II, § 3, Fla. Const. So while the

judicial power granted to the Florida Supreme Court in our constitution expressly

includes the power to “adopt rules for the practice and procedure in all courts,” Art.

V, § 2(a), Fla. Const., the Florida Supreme Court itself recognizes that a rule of

procedure that is created to implement statutory law should not be read to rewrite or

defeat the statute the rule was designed to implement. Kuhajda v. Borden Dairy Co.

of Ala., LLC, 202 So. 3d 391, 395–96 (Fla. 2016) (“The procedural rule should no

more be allowed to trump the statute here than the tail should be allowed to wag the

dog. A procedural rule should not be strictly construed to defeat a statute it is

designed to implement.”). Consistent with the Florida Supreme Court’s

constitutional power to make rules for practice and procedure in the courts, rule

13 1.650 reflects a rule of procedure that governs the service of the presuit notice

required under the statute. The rule itself does not amend the carrot-and-stick policy

judgments reflected in sections 766.204(1) and (2).

PETITION GRANTED in part; ORDER QUASHED in part.

TRAVER, C.J., and NARDELLA, J., concur.

Jamie Billotte Moses, of MMPO Defense – Florida, Orlando, for Petitioners.

Terry P. Roberts, of Fischer Redavid, PLLC, Hollywood, for Respondent.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED. ANY MOTIONS FOR REHEARING ARE DUE TEN DAYS FROM THE DATE OF THE OPINION AND ANY RESPONSES ARE DUE FIVE DAYS LATER.