Mirza v. Trombley

946 So. 2d 1096, 2006 WL 3523640
CourtDistrict Court of Appeal of Florida
DecidedDecember 8, 2006
Docket5D05-4185
StatusPublished
Cited by2 cases

This text of 946 So. 2d 1096 (Mirza v. Trombley) 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
Mirza v. Trombley, 946 So. 2d 1096, 2006 WL 3523640 (Fla. Ct. App. 2006).

Opinion

946 So.2d 1096 (2006)

Asif MIRZA, M.D., Petitioner,
v.
Frank TROMBLEY and Tammy Tillman, etc., et al, Respondents.

No. 5D05-4185.

District Court of Appeal of Florida, Fifth District.

December 8, 2006.
Rehearing Denied January 29, 2007.

*1097 Craig S. Foels and Robin D. Black of Hannah, Estes & Ingram, P.A., Orlando, for Petitioner.

Alan J. Landerman of The Nation Law Firm, Longwood, for Respondents Frank Trombley and Tammy Tillman.

*1098 LAWSON, J.

Dr. Asif Mirza seeks a writ of certiorari quashing the trial court's order in a medical malpractice action. The order denied Dr. Mirza's motion for dismissal or summary judgment. Dr. Mirza argues that his motion should have been granted because respondents did not individually serve him with a notice of intent pursuant to section 766.106(2), Florida Statutes (2004), and did not individually name him in their corroborating expert affidavit, filed pursuant to section 766.203(2), Florida Statutes (2004). We find that the trial court properly denied Dr. Mirza's motion and deny certiorari.

On February 3, 2005, respondents sued Dr. Mirza, Dr. Faisal Ahmad, East Coast Hospital Inpatient Specialists, P.L.C. ("ECHIS"), and six other healthcare providers, alleging medical negligence in Patricia Trombley's treatment, which ultimately led to her death. More precisely, respondents claimed that the defendants' actions "fell below the appropriate standard of care" by inappropriately "ordering and administering heparin therapy . . . which caused an intracranial bleed, resulting in the death of Patricia Trombley." The alleged negligence occurred in the period between Trombley's admission into Central Florida Regional Hospital on February 6, 2003, and her death on February 9, 2003. Drs. Mirza and Ahmad practiced medicine together at ECHIS and were co-owners of the practice.

Chapter 766 articulates "a complex investigation procedure that both the claimant and defendant must follow before a medical negligence claim may be brought in court." Kukral v. Mekras, 679 So.2d 278, 280 (Fla.1996). These requirements are "designed to facilitate the amicable resolution of medical malpractice claims," Patry v. Capps, 633 So.2d 9, 11 (Fla.1994) (quoting Ingersoll v. Hoffman, 589 So.2d 223, 224 (Fla.1991)), and include both a notice requirement and a requirement that the potential plaintiff's attorney conduct a reasonable investigation to determine whether a good faith basis exists to claim medical negligence. Kukral, 679 So.2d at 280. As part of the investigation requirement, the attorney must obtain a "verified written medical expert opinion from a medical expert" that "corroborate[s] reasonable grounds to support the claim of medical negligence." § 766.203(2), Fla. Stat. (2004).

In this case, respondents' counsel was obviously not initially aware of Dr. Mirza's involvement in Trombley's care. In fact, counsel's initial request for informal discovery asked ECHIS to list all employees of the practice who treated Trombley. In response, ECHIS simply stated that Dr. Ahmad's involvement was limited, in that "another doctor took over as the attending physician a few hours" after Dr. Ahmad had arranged for her admission by telephone. However, ECHIS did not disclose that it was Dr. Mirza who took over as the attending physician and simply told counsel to "refer to the Medical Records."

Not surprisingly, therefore, Dr. Mirza was not individually named in plaintiffs' presuit notice or in the presuit investigatory affidavit.[1] Instead, plaintiffs sent notices to Dr. Ahmad and to ECHIS. The notice of intent to initiate litigation against ECHIS was addressed to "you, as well as all other prospective defendants who bear a legal relationship to you. . . ." Additionally, the physician who reviewed the case for plaintiffs' counsel corroborated in an affidavit *1099 served on ECHIS that reasonable grounds existed to support the claim of medical negligence. In the affidavit, plaintiffs' expert actually describes the care and treatment provided by Dr. Mirza, concluding that his actions fell below the appropriate standard of care. However, because Dr. Mirza had not yet been identified as the other ECHIS "doctor who took over as the attending physician," Dr. Mirza was not individually named in the affidavit. Instead, the affidavit—consistent with the notice—outlined the manner in which the reviewing physician found ECHIS' actions to have fallen below the appropriate standard of care.

Contrary to Dr. Mirza's arguments, we find that the trial court correctly concluded that plaintiffs' presuit notice and investigatory affidavit were sufficient. As for the notice, the law is clear that because Dr. Mirza was a partner and owner of ECHIS, notice to ECHIS also constituted notice to Dr. Mirza. E.g., Moss v. Stadlan, 789 So.2d 1069 (Fla. 4th DCA 2001); see also Fla. R. Civ. P. 1.650 ("Notice of intent to initiate litigation sent by certified mail to and received by any prospective defendant shall operate as notice to the person and any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice."). Therefore, by noticing ECHIS, plaintiffs met the presuit notice requirement of section 766.106(2), Florida Statutes, as to Dr. Mirza.

With respect to the investigatory affidavit requirement, Dr. Mirza argues that Largie v. Gregorian, 913 So.2d 635 (Fla. 3d DCA 2005), and Bonati v. Allen, 911 So.2d 285 (Fla. 2d DCA 2005), require dismissal of a medical malpractice suit against any defendant not individually named in the investigatory affidavit. We believe this to be a misreading of both cases.

In Largie, the plaintiff had properly noticed Jessica Wang, a registered nurse practitioner. However, plaintiff had not conducted any presuit investigation of nurse Wang's actions. Accordingly, as explained in the Largie opinion, the investigatory affidavit made "no mention of Nurse Wang whatsoever, either by name or job description." Largie, 913 So.2d at 639. Additionally, the affidavit made "no reference to the standard of care applicable to a certified registered nurse practitioner or to any deviation from that standard of care." Id. In short, the affidavit did "not suggest, much less corroborate, that any investigation took place with regard to Nurse Wang or that any reasonable grounds exist to support the Largies' claim against her as expressly mandated by Chapter 766." Id. As a result, the Third District Court held in Largie that the complaint against Nurse Wang should be dismissed.

Similarly, in Bonati, the Second District Court followed Largie and required dismissal of a complaint against a physician whose conduct was not reviewed as part of the presuit investigation. Robin Allen had consulted Dr. Bonati regarding neck and arm pain that she had been experiencing for five years. Dr. Bonati diagnosed Allen as having a "cervical nerve decompression" and referred her to an orthopedic surgeon, Dr. Mork. Dr. Mork performed spinal surgery on Allen and referred her to two other doctors for post-operative pain management and care.

In the investigative affidavit, the reviewing doctor (an orthopedic surgeon) found that Dr. Mork had negligently performed the surgery on Allen. He also found that the procedure Dr. Mork performed was inappropriate for Allen. The reviewing physician further found deviations from the acceptable standards of medical care by the two doctors who provided post-operative *1100 care. With respect to Dr.

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Bluebook (online)
946 So. 2d 1096, 2006 WL 3523640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mirza-v-trombley-fladistctapp-2006.