Palm Beach General Surgery, LLC, Etc. v. Rebecca Grazioli

• Court: District Court of Appeal of Florida
• Decided: March 31, 2026
• Docket: 3D2025-2274
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 31, 2026. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D25-2274 Lower Tribunal No. 25-6958-CA-01 ________________

Palm Beach General Surgery, LLC, etc., Petitioner,

vs.

Rebecca Grazioli, Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Ariana Fajardo Orshan, Judge.

La Cava Jacobson & Goodis, P.A., and Jason M. Azzarone, Marci L. Strauss, Louis J. LaCava and Ian P. Singer (Tampa), for petitioner.

Lisa S. Levine, P.A., and Lisa S. Levine and Sydney A. Levine (Weston); Burlington & Rockenbach, P.A., and Nichole J. Segal (West Palm Beach), for respondent.

Before EMAS, GORDO and BOKOR, JJ.

PER CURIAM. INTRODUCTION

Rebecca and James Grazioli (together, “Grazioli”) filed a medical

malpractice action against several defendants, including a negligent

credentialing claim against Palm Beach General Surgery, LLC

(PBGS/Petitioner). PBGS seeks certiorari review of the trial court’s order

denying its motion seeking a determination that Grazioli failed to comply with

the presuit investigation requirements of Chapter 766, Florida Statutes.

For the reasons that follow, we grant the petition, issue the writ, and

quash the relevant portion of the challenged order.

FACTUAL AND PROCEDURAL HISTORY

In December 2022, Rebecca Grazioli received care and treatment from

Neel Patel, MD, an oral and maxillofacial surgeon employed by Palm Beach

General Surgery, LLC (PBGS). She alleges the surgery resulted in

significant and permanent injury to her.

On November 14, 2024, Grazioli sent Dr. Patel a notice of intent to

initiate litigation for medical malpractice. The notice included an affidavit

from plaintiff’s expert, Glen Maron, in which he listed five ways Dr. Patel and

PBGS’s care of Grazioli deviated from the standard of care leading to her

significant and permanent injury. No allegations related to negligent

credentialing by PBGS were included in the affidavit.

2 In April 2025, Grazioli sued Dr. Patel and PBGS, alleging her injuries

were caused by the defendants’ medical malpractice during surgery. Count

I alleged medical negligence solely against the treating physician, Dr. Patel.

Count II alleged a direct count of negligent credentialing against PBGS, and

it is this claim for negligent credentialing, and the underlying allegations, that

are material to the issue presented.1

Count II alleged in relevant part that PBGS “had a duty to select and

appoint its employee . . . Neel Patel, MD, in its care and treatment of . . .

Rebecca Grazioli, who was qualified to render oral and maxillofacial surgical

care in accordance with the prevailing professional dental standards.” PBGS

“breached said duty,” Count II continued, “by negligently and carelessly

caring for and treating. . . Rebecca Grazioli, in that it was negligent in the

selection and appointment of its employee . . . Neel Patel, MD, so as to allow

an employee to practice under its employ that was not qualified to render

oral and maxillofacial surgical care in accordance with the prevailing

professional dental standards.”

1 The remaining counts of the complaint (alleging PBGS is vicariously liable for Dr. Patel’s negligence, as well as claims that PBGS was negligent in regulating and supervising Dr. Patel) are not challenged in the petition filed by PBGS.

3 As for the presuit requirements in Chapter 766, the complaint alleged

Grazioli complied with all “conditions precedent and presuit provisions,” and

that counsel “made a reasonable investigation of the circumstances giving

rise to this lawsuit and such investigation gave rise to a good faith belief that

grounds exist for an action against the named Defendants.” The pertinent

provisions of Chapter 766 include section 766.104(1) which requires the

plaintiff to conduct a “reasonable investigation” establishing a “good faith

belief” the defendant was negligent in his “care or treatment” of the plaintiff,

and to attach to the complaint a certificate of counsel to that effect:

No action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or in contract, 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 complaint or initial pleading shall contain a certificate of counsel that such reasonable investigation gave rise to a good faith belief that grounds exist for an action against each named defendant.

§ 766.104(1), Fla. Stat. (Emphasis added).

And sections 766.203(2) and 766.106(2) which (together) require the

plaintiff, upon completion of the presuit investigation, to send a notice of

intent to initiate a medical malpractice action against “each prospective

defendant” with a verified opinion from a medical expert corroborating a

“reasonable grounds to initiate” the medical malpractice lawsuit:

4 (2) Presuit investigation by claimant. Prior to issuing notification of intent to initiate medical negligence litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:

(a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and

(b) Such negligence resulted in injury to the claimant.

Corroboration of reasonable grounds to initiate medical negligence litigation 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.

§ 766.203(2), Fla. Stat. (Emphasis added).

After completion of presuit investigation pursuant to s. 766.203(2) and before filing a complaint for medical negligence, a claimant shall notify each prospective defendant of intent to initiate litigation for medical negligence. . . .

§ 766.106(2), Fla. Stat. (Emphasis added).

PBGS (and Dr. Patel) filed the underlying motion to determine

Grazioli’s compliance with reasonable presuit investigation pursuant to

Chapter 766, and to dismiss Count II on that basis. PBGS contended that

Grazioli failed to comply with the statutory presuit requirements for medical

negligence actions prescribed by Chapter 766, in that, for example, she

“failed to provide any expert corroboration in support of her credentialling

5 claim” and made “no mention” of her negligent credentialling claim in the

notice of intent to initiate the underlying litigation. Grazioli filed a response to

the underlying motion, but did not address PBGS’s argument pertaining to

the negligent credentialing claim.

At the conclusion of the hearing on the motion, the trial court rejected

PBGS’s arguments pertaining to presuit notice of the negligent credentialing

claim, but dismissed the complaint without prejudice for Grazioli to more

clearly plead the causes of action related to negligent retention and

supervision: “I’m not dismissing it based on a pre-suit letter, but you need to

figure out on a motion to dismiss those causes of actions can’t [be] lumped

in.”

The trial court later entered an order consistent with its oral ruling,

denying the motion as it pertained to the negligent credentialing claim and

Grazioli’s alleged failure to comply with reasonable presuit investigation

pursuant to Chapter 766. This petition for certiorari followed.

ANALYSIS AND DISCUSSION

Generally, Florida appellate courts have certiorari jurisdiction to review

whether a plaintiff has complied with the presuit notification requirements of

the Medical Malpractice Act, Chapter 766, Florida Statutes (2025). As our

sister court recently observed:

6 Because nonfinal orders subject to interlocutory review are limited to those set forth in Rule 9.130 of the Florida Rules of Appellate Procedure, certiorari generally is unavailable to review a trial court's denial of a motion to dismiss.

However, “Florida courts have created an ‘exception . . . when the presuit requirements of a medical malpractice statute are at issue’ since the ‘purpose’ of the Medical Malpractice Act is ‘to avoid meritless claims and to encourage settlement for meritorious claims.’ ” ...

[C]ertiorari lies “to ensure that the procedural aspects of the presuit requirements are met.” For example, certiorari review is permitted to resolve “whether a plaintiff—before the filing of the medical malpractice lawsuit—gave the defendant ‘advance notice’ and provided an ‘opportunity [for the defendant] to examine [the] claim.’ Thus, a district court can grant certiorari review to verify that the plaintiff submitted the corroborating affidavit of an expert witness.” And if an appropriate corroborating affidavit has not been provided, “[c]ertiorari may be an appropriate remedy if the error is one that resulted in the deprivation of the right to the process itself.”

Wells v. Quintero, 51 Fla. L. Weekly D162 at *3 (Fla. 5th DCA Jan. 23, 2026)

(internal citations and quotations omitted) (emphasis in original).

To be entitled to certiorari relief, a petitioner must establish that the

challenged order “(1) constitutes a departure from the essential requirements

of the law; (2) causes material injury throughout the remainder of the

proceedings below; and (3) causes injury that is irreparable, as it effectively

leaves no adequate remedy at law.” Prichard v. Galicia, 407 So. 3d 537, 539

n.2 (Fla. 3d DCA 2025) (quotation omitted).

7 PBGS contends the trial court’s order denying its motion departed from

the essential requirements of the law because “there was absolutely no

mention of [] [Grazioli’s] intention to bring a claim for negligent credentialing

during pre-suit.” Grazioli responds that the statute does not require a plaintiff

to “corroborate all discrete claims against a prospective defendant.” Instead,

she asserts, she could meet those requirements by having “presuited at least

one theory of liability against” the defendants. We disagree.

Before filing a medical malpractice lawsuit, a plaintiff must comply with

certain statutory presuit requirements under Chapter 766. The purpose of

these presuit requirements is to “promote the settlement of meritorious

claims at an early stage without the necessity of a full adversarial

proceeding.” Hermoso v. New Life Plastic Surgery Corp., 415 So. 3d 835,

839 (Fla. 3d DCA 2025) (quotation omitted). To this end, a plaintiff must

conduct “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.” § 766.104(1), Fla. Stat.

(2025). Such investigation consists of: “(1) review of the case against each

potential defendant; (2) consultation with a medical expert; and (3) written

corroboration of negligence by a medical expert[.]” Hermoso, 415 So. 3d at

839 (quoting Largie v. Gregorian, 913 So. 2d 635, 638 (Fla. 3d DCA 2005))

8 (emphasis in original); see also Bonati v. Allen, 911 So. 2d 285, 287-88 (Fla.

5th DCA 2005) (“The chapter defines ‘investigation’ to mean ‘that an attorney

has reviewed the case against each and every potential defendant and

has consulted with a medical expert and has obtained a written opinion from

said expert.’” (quoting § 766.202(4), Fla. Stat. (2005)) (emphasis added)).

Upon completion of the presuit investigation, the plaintiff must file a presuit

notice before filing her medical malpractice lawsuit. § 766.106(2), Fla. Stat.

In short, the notice of intent to initiate litigation, together with the

corroborating affidavit, “must sufficiently indicate the manner in which the

defendant . . . allegedly deviated from the standard of care, and must provide

adequate information for the defendants to evaluate the merits of the claim.”

Tomas v. Sandler, 406 So. 3d 1089, 1093-94 (Fla. 3d DCA 2025) (internal

quotation marks and citation omitted).

The dispute presented in this petition does not relate to the sufficiency

of the corroborating affidavit regarding Grazioli’s claims of medical

negligence, but is limited to the negligent credentialing claim and the

sufficiency of the underlying corroborating affidavit related to that claim.

Grazioli alleges in her complaint that PBGS “was negligent in the

selection and appointments of its employee, [Dr. Patel], so as to allow an

employee to practice under its employ that was not qualified to render oral

9 and maxillofacial surgical care in accordance with the prevailing professional

dental standards.” As this court has previously acknowledged, negligent

credentialing is a distinct tort that falls within the scope of claims subject to

the Medical Malpractice Act:

Negligent credentialing, otherwise known as negligent privileging, is a distinct tort that “involve[s] wrongful conduct both by the person who is derivatively liable and the actor whose wrongful conduct was the direct cause of injury to another.” Grobman v. Posey, 863 So. 2d 1230, 1235–36 (Fla. 4th DCA 2003) (quoting William D. Underwood & Michael D. Morrison, Apportioning Resp. in Cases Involving Claims of Vicarious, Derivative, or Statutory Liab. for Harm Directly Caused by the Conduct of Another, 55 Baylor L. Rev. 617, 619 (2003)). It is administrative, rather than medical, in nature. The plaintiff bears the burden of proving that the hospital negligently granted privileges to a physician it knew or should have known was incompetent or unqualified. See Peter Schmit., Causes of Action for Negligent Credentialing, 18 COA 2d 329, § 6 (2025).

Tomas, 406 So. 3d at 1094 (emphasis added). Accordingly, the question

here is whether the corroborating affidavit’s allegations of medical

negligence alone were sufficient to meet presuit requirements. We hold that

they were not, and grant the petition.

The notice of intent, sent by certified mail, was addressed only to Dr.

Patel, and concludes, without elaboration: “You are hereby notified that we

have, on this date, directed a Notice of Intent to Initiate Litigation for Medical

Malpractice to PALM BEACH GENERAL SURGERY, LLC d/b/a HCA

10 FLORIDA HEAD & NECK ONCOLOGY AND RECONSTRUCTIVE

SURGERY.” And the corroborating presuit affidavit merely mentioned PBGS

in the context of Grazioli’s claim against Dr. Patel:

Based on my review of the aforementioned records, my examination and my background, training and experience, it is my professional opinion based on a reasonable degree of dental probability that the care provided to REBECCA GRAZIOLI by NEEL PATEL, MD and PALM BEACH GENERAL SURGERY, LLC d/b/a HCA FLORIDA HEAD & NECK ONCOLOGY AND RECONSTRUCTION SURGERY, and any unknown potential defendants, deviated from the standard of care in the following manner:

A. By utilizing inadequate fixation with only three (3) screws in the native mandible during the surgery of December 29, 2022.

B. By failing to recognize the significance of the previously placed plate.

C. By failing to utilize a custom plate which would have had more screws on the distal side.

D. By leaving Rebecca Grazioli with malocclusion during the surgery of December 29, 2022 i.e. an open bite on the right side.

E. By failing to appropriately manage the complication of MRSA postoperatively.

(Emphasis added).

These five actions are the entire sum and substance of the conduct

relied upon in the corroborating affidavit to satisfy presuit notice

requirements, and these same five actions form the gravamen of the

11 Grazioli’s complaint of medical negligence. Yetnone relate to negligent

credentialing, nor do they allege any specific act (or failure to act) by PBGS.

Simply stated, the notice of intent and the corroborating affidavit failed

to “sufficiently indicate the manner in which the defendant . . . allegedly

deviated from the standard of care,” so as to “provide adequate information

for the defendants to evaluate the merits of the claim.” Tomas, 406 So. 3d at

1093-94 (quotation omitted).

This court’s decision in Tomas is instructive. In Tomas, the plaintiff

submitted a presuit affidavit pertinent to its medical negligence claims

against the treating doctor and a negligent credentialing claim against the

hospital. As to the negligent credentialing claim against the hospital, the

affidavit merely stated:

Mariners Hospital, Inc. fell below applicable standards of care for credentialing surgeons in credentialing and authorizing Dr. Sandler to perform a total ankle replacement procedure. It is therefore my opinion within reasonable medical probability that Mariners Hospital, Inc. fell below applicable standards of care in their supervision and credentialing of Dr. Sandler and was therefore negligent, and that this negligence resulted in injury to Mr. Tomas as summarized above.

Tomas, 406 So. 3d at 1092.

On appeal, this court addressed only the sufficiency of the affidavit as

it related to the negligent credentialing claim against the hospital. It found the

presuit affidavit insufficient as it was “devoid of detail as to the administrative

12 standard of care relating to credentialing or any supporting facts.” Id. at 1094.

We concluded that, because the affidavit lacked information on the standard

of care, the defendant hospital “was left with no information to evaluate the

merits of the negligent credentialing claim.” Id. Here, Grazioli’s notice and

corroborating affidavit similarly made no mention of any of its claims against

PBGS, and wholly failed to mention negligent credentialing (or any action or

inaction relating to a claim of negligent credentialing).

Grazioli contends Tomas is inapplicable, arguing, for example, that it

conflicts with an earlier decision from this court—Michael v. Med. Staffing

Network, Inc., 947 So. 2d 614 (Fla. 3d DCA 2007). Michael, however, is

inapt.

In Michael, we held that a corroborating affidavit that did not list a

defendant nurse—but referred to the defendant hospital’s employees and

requested information regarding any other prospective defendants—did not

violate statutory presuit requirements: “Nowhere does the statute indicate

that an affidavit must be defendant-specific. As the Fourth District has

explained, ‘nothing in the statute requires that the corroborating expert

opinion identify every possible instance of medical negligence.’” Id. at 619

(quoting Columbia/JFK Med. Ctr. Ltd. P'ship v. Brown, 805 So. 2d 28, 29

(Fla. 4th DCA 2001)). However, Michael is distinguishable, both legally and

13 factually, from the instant case. First, Michael addressed a different legal

issue—the “level of specificity [required] in naming prospective defendants

in corroborating medical expert affidavits served in medical malpractice

actions, pursuant to chapter 766, Florida Statutes (2004).” Id. at 615. Here,

it is undisputed that PBGS was named in the affidavit.

Second, the negligence alleged in Michael concerned a single episode

of medical treatment from various medical professionals, including the nurse.

Id. at 616-17. In contrast, here, Grazioli alleges distinct types of negligence

against Dr. Patel and PBGS—medical negligence and administrative

negligence, respectively—yet the affidavit speaks only to medical negligence

and offers no action or inaction of PBGS related to a claim of negligent

credentialing. The enumeration of alleged acts by Dr. Patel related to

medical negligence cannot corroborate Grazioli’s administrative negligence

claim against PBGS. To this point, the Michael court distinguished between

requiring a notice to corroborate the defendants as opposed to the claims:

“[T]he language of the statute focuses on corroboration of the claims, not

corroboration of each defendant's involvement.” Id. at 620. In other words,

the corroborating affidavit’s enumeration of the five alleged acts of Dr. Patel

might meet the presuit requirements for a vicarious liability claim against

14 PBGS, but not for a direct claim of administrative negligence against PBGS

for negligent credentialing.

The corroborating affidavit in the instant case, while listing specific

actions by Dr. Patel in treating Grazioli, contains no allegations regarding

actions or conduct by PBGS and failed to place PBGS on notice (for express

statutory purposes of investigating claims and pursuing settlement) of an

administrative negligence claim. See Univ. of Miami v. Wilson, 948 So. 2d

774, 778–79 (Fla. 3d DCA 2006) (“The purpose of the presuit requirement is

to allow a potential defendant to investigate a claim and to encourage

settlement prior to costly and time-consuming litigation.”).

CONCLUSION

We therefore grant the petition, issue the writ, and quash that portion

of the order denying PBGS’s “Motion to Determine [Grazioli’s] Compliance

with Reasonable Presuit Investigation” as it relates to negligent credentialing

claim alleged against PBGS in Count II.