Michael v. Medical Staffing Network, Inc.

947 So. 2d 614, 2007 WL 57604
CourtDistrict Court of Appeal of Florida
DecidedJanuary 10, 2007
Docket3D05-2878
StatusPublished
Cited by9 cases

This text of 947 So. 2d 614 (Michael v. Medical Staffing Network, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michael v. Medical Staffing Network, Inc., 947 So. 2d 614, 2007 WL 57604 (Fla. Ct. App. 2007).

Opinion

947 So.2d 614 (2007)

Esteva E. MICHAEL, as Personal Representative of the Estate of Claude S. Michael, deceased, Appellant,
v.
MEDICAL STAFFING NETWORK, INC., d/b/a All Better Nursing and Milton McCall, R.N., et al., Appellees.

No. 3D05-2878.

District Court of Appeal of Florida, Third District.

January 10, 2007.

*615 Gamba & Lombana and Tomas F. Gamba and Hector J. Lombana; Billbrough & Marks and Geoffrey B. Marks and G. Bart Billbrough, Miami, for appellant.

Carlton Fields and Sylvia H. Walbolt, Tampa, and F. Townsend Hawkes, Tallahassee, and Dean A. Morande, West Palm Beach, for appellees.

Before FLETCHER and CORTI—AS, JJ., and SCHWARTZ, Senior Judge.

CORTI—AS, Judge.

In this appeal, we must review whether the trial court correctly interpreted this court's prior opinion in Largie v. Gregorian, 913 So.2d 635 (Fla. 3d DCA 2005), as well as the Florida Supreme Court's opinion in Kukral v. Mekras, 679 So.2d 278 (Fla.1996), to require a certain level of specificity in naming prospective defendants in corroborating medical expert affidavits served in medical malpractice actions, pursuant to chapter 766, Florida Statutes (2004).

*616 This case arises from the following facts. On February 5, 2002, Claude S. Michael, the decedent, went to Jackson South Community Hospital ("Jackson South") to receive treatment for a laceration on his forehead. He was admitted to the hospital overnight for observation. During his overnight stay, Mr. Michael began complaining of chest pains. A nurse gave him five doses of nitroglycerin during the course of the night without obtaining a doctor's order or otherwise consulting with a doctor. The following morning, Mr. Michael's doctor became aware of his chest pains and diagnosed Mr. Michael with a myocardial infarction. Mr. Michael was transferred to Jackson South's intensive care unit and then to South Miami Hospital. Mr. Michael passed away later that day at South Miami Hospital.

Prior to the expiration of the statute of limitations, Esteva Michael, the wife of Mr. Michael and personal representative of his estate ("the Plaintiff"), served Jackson South and two doctors who treated Mr. Michael with a notice of intent to initiate litigation pursuant to chapter 766, Florida Statutes. This notice named the prospective defendants as "the Public Health Trust d/b/a Jackson South Community Hospital, and its employees and actual and apparent agents." Consistent with Rule 1.650(b) of the Florida Rules of Civil Procedure, the notice also indicated that it "operates as notice to any other prospective defendant who on the above date bore a legal relationship to the Public Health Trust d/b/a Jackson South Community Hospital, including any of its agents and/or employees." See Fla. R. Civ. P. 1.650(b). The notice indicated the prospective defendants' obligation to participate in informal discovery, and specifically requested information on any other person or entity the prospective defendants contend may be responsible for the negligence. Paragraph 5 of the notice stated as follows:

If you contend that someone other than your agents and/or employees were responsible, in whole or in part, for the occurrence of the negligence that is being alleged by Esteva Michael, as the Personal Representative of the Estate of Claude Michael, please state each such person or entity's name, address, job title, along with the facts upon which you base your contention that he, she or the entity was responsible.

In addition to sending this notice, the Plaintiff also sent Jackson South a medical expert affidavit indicating that a reasonable investigation into the claim had been conducted. Paragraph 9 of the medical expert affidavit stated:

Specifically, it is my professional opinion, within a reasonable degree of medical probability, that there was a deviation from the accepted standard of care in the care and treatment of Michael S. Claude by the aforementioned physicians and medical providers[[1]] who committed medical negligence which caused and/or substantially contributed to the death of Michael S. Claude, and which included, but was not limited to, the following manner:
a) Failure to timely and appropriately recognize and appreciate Michael S. Claude's myocardial infarction and related symptoms including, but not limited to, at least five (5) episodes of angina;
*617 b) Failure to timely and appropriately evaluate Michael S. Claude's myocardial infarction and related symptoms including, but not limited to, ordering additional diagnostic studies including EKGs, cardiac enzymes and cardiology consult;
c) Failure to provide timely and appropriate care and treatment and intervention for Michael S. Claude's myocardial infarction and related symptoms; and
d) Failure to transfer Michael S. Claude to another hospital and/or facility in a timely manner.

Despite being served with these documents which specifically outlined the basis of the malpractice claim, and specifically requested information as to any other parties involved in the negligence, and despite having an independent legal obligation to disclose such discoverable information, Jackson South delayed for almost an entire year in providing the Plaintiff with the name of the nurse it contends administered the nitroglycerin doses. Instead of abiding by the two agreed-upon extensions of the pre-suit period and their promise to make available medical personnel for sworn statements, Jackson South abruptly denied the Plaintiff's claim, thereby ending the pre-suit period.[2] Accordingly, the Plaintiff filed suit against Jackson South and the two doctors whose names were known, and immediately propounded interrogatories seeking to discover the name of the party responsible for administering the nitroglycerin. Interestingly, the doctors asserted Fabre defenses,[3] and stated in depositions that they could not discern the initials of the nurse who recorded the nitroglycerin doses in the decedent's medical records nor did they independently recall the identity of that person.

In December 2004, some ten months after first receiving notice of the claim, Jackson South finally advised the Plaintiff that Milton McCall ("McCall") was the nurse they contend administered the nitroglycerin. Jackson South also disclosed that McCall was employed by Medical Staffing Network ("MSN"), with whom Jackson South had contracted. Immediately upon receiving this information, the Plaintiff sought leave to file an amended complaint to include counts against MSN and McCall. MSN and McCall opposed the Plaintiff's attempt to amend the complaint, alleging that the Plaintiff failed to comply with the pre-suit notice requirement. The trial court allowed the Plaintiff to file an amended complaint, and denied MSN and McCall's motion to dismiss the amended complaint on the same ground. Subsequently, MSN and McCall moved for summary judgment, arguing that the pre-suit notice was defective. After a hearing, the trial court granted their motion and entered summary judgment in their favor.

Upon review of the trial court's order and the transcript of the summary judgment hearing, it is evident that the trial court was primarily concerned with the sufficiency of the medical expert affidavit. The trial court found that the issue of service of the notice and affidavit required a determination as to "agency" and the *618

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Bluebook (online)
947 So. 2d 614, 2007 WL 57604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-v-medical-staffing-network-inc-fladistctapp-2007.