Lowe ex rel. Lowe v. Pugh

682 So. 2d 1104, 1996 Fla. App. LEXIS 2656, 1996 WL 120959

• Court: District Court of Appeal of Florida
• Decided: March 20, 1996
• Docket: No. 95-04560
• Status: Published

Opinion

PER CURIAM.

• The plaintiffs, Gregory Spencer Lowe and his parents, seek certiorari review of an order that requires them to produce the notices of intent to initiate litigation pursuant to section 766.106(2), Florida Statutes (1993), which they had earlier mailed to the initial defendants in this lawsuit. We deny relief because these documents are not protected from disclosure to the respondents, whom the plaintiff later added as defendants.

Gregory Lowe allegedly suffered damages as a result of medical treatment in the summer of 1991. His parents filed a medical malpractice action against several physicians and hospitals in 1993. In a third amended complaint filed in May 1995, they added Joseph R. Pugh, M.D., his professional association, and Radiology and Nuclear Medicine,

Inc., as defendants. After Dr. Pugh answered the action, he requested that the plaintiffs produce copies of the earlier letters giving notice of intent to the original defendants.¹ The plaintiffs objected, maintaining that the notices were protected from disclosure by section 766.106(5), which provides:

No statement, discussion, written document, report, or other work product generated by the presuit screening process is discoverable or admissible in any civil action for any purpose by the opposing party-

We agree with the trial court that the statutory notices of intent to initiate litigation that were mailed to an opposing party are not documents protected by subsection 5. If Dr. Pugh had been one of the original defendants, the plaintiffs would have been obligated to serve him with these notices. Fla. R.Civ.P. 1.650(b)(2).

Petition for writ of certiorari denied.

RYDER, A.C.J., and DANAHY and ALTENBERND, JJ., concur.

1 . We are uncertain whether the original defendants continue to be parties in the circuit court. The plaintiffs did not name these defendants as respondents in this proceeding. If they are still parties in the circuit court, they should have been served with the petition and treated as respondents in this court. See Fla.R.App.P. 9.020(f). Dr. Pugh served his response on the attorneys who apparently represent the original defendants. None of the original defendants has filed an appearance in this proceeding.