Kukral v. Mekras

679 So. 2d 278, 1996 WL 316134
CourtSupreme Court of Florida
DecidedJune 13, 1996
Docket85099
StatusPublished
Cited by101 cases

This text of 679 So. 2d 278 (Kukral v. Mekras) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kukral v. Mekras, 679 So. 2d 278, 1996 WL 316134 (Fla. 1996).

Opinion

679 So.2d 278 (1996)

Charles KUKRAL and Milly Kukral, Petitioners,
v.
George D. MEKRAS, M.D.; Miami Urology Institute, Inc., and Dr. John T. McDonald Foundation d/b/a Doctors' Hospital, Respondents.

No. 85099.

Supreme Court of Florida.

June 13, 1996.
Rehearing Denied September 4, 1996.

*279 Joe N. Unger of the Law Offices of Joe N. Unger, P.A., Miami; and the Law Offices of Richard L. Katz, Coral Gables, for Petitioners.

Bambi G. Blum of Hicks, Anderson & Blum, P.A., Miami; George, Hartz, Lundeen, Flagg & Fulmer, P.A., Coral Gables; and Gail Leverett Parenti of Parenti, Falk, Waas & Frazier, Coral Gables, for Respondents.

ANSTEAD, Justice.

We have for review Kukral v. Mekras, 647 So.2d 849 (Fla. 3d DCA 1994), which expressly and directly conflicts with the opinion in Stebilla v. Mussallem, 595 So.2d 136 (Fla. 5th DCA), review denied, 604 So.2d 487 (Fla. 1992). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash Kukral and approve Stebilla. For the reasons expressed below, we hold that the trial court erred in dismissing plaintiffs' medical malpractice claim for their alleged failure to comply with the presuit investigation requirements of section 766.203(2), Florida Statutes (1991).

FACTS

The essential facts are set out in the district court opinion:

On February 21, 1992, the plaintiffs served on Doctor's Hospital and Dr. George D. Mekras notices of intent to initiate litigation for medical malpractice. The notices stated that during a medical procedure to remove genital warts undiluted acid was applied to the plaintiff's penis resulting in serious burns. These notices of intent were not accompanied by a verified written medical expert opinion when they were mailed. Miami Urology Institute, Inc. [MUI], Dr. Mekras' employer, alleges that it was not individually served with a notice of intent and that the notice sent to Dr. Mekras did not indicate that MUI was a prospective defendant.
Doctor's Hospital sent a denial of the claim to the plaintiffs accompanied by an affidavit of an expert. On August 14, 1992, the plaintiffs sent out an unverified medical expert opinion corroborating the claim of medical negligence. On September 3, 1992, the plaintiffs sent out a verification of medical expert opinion alleging negligence. Then, on October 9, 1992, the plaintiffs filed their complaint against Doctor's Hospital, Dr. Mekras, and MUI [collectively referred to as defendants] for medical malpractice. After the matter had been set for trial, the defendants filed a motion to determine whether the plaintiffs had properly complied with the statutory pre-suit screening procedures. After hearings, the trial court entered the appealed order dismissing the plaintiffs' case for failure to comply with the mandatory pre-suit screening procedures.

Kukral, 647 So.2d at 850. The effect of the order of dismissal was to permanently bar the plaintiffs' claim since the statutory limitations period for filing claims had then expired.[1]

The Third District affirmed the order of dismissal by a two-to-one vote, and reasoned as follows:

It is the plaintiffs failure to comply with their duty to conduct an investigation as defined by section 766.202(4), Florida Statutes (1991), that distinguishes this case from the cases relied on by plaintiffs. In Stebilla v. Mussallem, 595 So.2d 136 (Fla. 5th DCA), rev. denied, 604 So.2d 487 (Fla. 1992) and Ragoonanan v. Assocs. in Obstetrics & Gynecology, 619 So.2d 482 (Fla. 2d DCA 1993), and in Suarez v. St. Joseph's Hosp., Inc., 634 So.2d 217 (Fla. 2d DCA 1994), the plaintiffs obtained the necessary medical opinion before filing their notices.
Under section 766.206, Florida Statutes (1991), since no reasonable investigation was conducted, the plaintiffs' claim was properly dismissed.

647 So.2d at 850-51. Judge Jorgenson dissented and reasoned:

The Florida Supreme Court has emphasized that "when possible the presuit notice and screening statute should be construed *280 in a manner that favors access to the courts." Patry v. Capps, 633 So.2d 9, 13 (Fla.1994); see also Weinstock v. Groth, 629 So.2d 835, 838 (Fla.1993) ("[R]estrictions on access to the courts must be construed in a manner that favors access.") (citations omitted). This is particularly so when, as here, defendants have not been prejudiced by plaintiff's actions. Patry, 633 So.2d at 13.
Plaintiff provided a written corroborating medical expert opinion within the period of the statute of limitations, and then verified that opinion within the limitations period; he complied with the presuit notice requirements and should not be subject to the ultimate sanction—dismissal of his claim. See Suarez v. St. Joseph's Hosp., 634 So.2d 217 (Fla. 2d DCA March 23, 1994) (failure to verify medical opinion "not fatal if compliance is secured prior to the expiration of the appropriate statute of limitations."); Stein v. Feingold, 629 So.2d 998 (Fla. 3d DCA 1993) (affidavit of expert witness timely filed when filed within statute of limitations period). The judicial gloss that the majority applies to section 766.202(4) controls only when the plaintiff has failed to satisfy the presuit requirements prior to the end of the limitations period. It is then, and only then, that the malpractice complaint may be dismissed for failure to comply with the statute.

Id. at 851-52. On rehearing en banc, the district court, by a vote of six to four, adopted the majority's opinion as the opinion of the en banc court. Id. at 852-53.

LAW and ANALYSIS

Chapter 766, Florida Statutes (1995), 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. In Williams v. Campagnulo, 588 So.2d 982 (Fla.1991), we upheld the constitutionality of the notice requirement of section 768.57(2), Florida Statutes (1985), which is currently found at section 766.106(2), Florida Statutes (1995), and noted: "The statute was intended to address a legitimate legislative policy decision relating to medical malpractice and established a process intended to promote the settlement of meritorious claims at an early stage without the necessity of a full adversarial proceeding." Williams, 588 So.2d at 983.

The first step in this statutory scheme 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. Section 766.104(1) provides that no medical negligence action shall be filed "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." It also provides that "good faith" may be shown if the claimant or his counsel has received a written opinion of an expert "that there appears to be evidence of medical negligence." Section 766.104(2) provides for a ninety-day extension of the statute of limitations "to allow the reasonable investigation required by subsection (1)."

Section 766.201(2)(a)1.

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Cite This Page — Counsel Stack

Bluebook (online)
679 So. 2d 278, 1996 WL 316134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kukral-v-mekras-fla-1996.