Patry v. Capps

District Court of Appeal of Florida

Patry v. Capps

618 So. 2d 261, 1993 Fla. App. LEXIS 3017, 1993 WL 75792

CourtDistrict Court of Appeal of Florida

DecidedMarch 19, 1993

DocketNo. 91-04193

StatusPublished

Cited by3 cases

This text of 618 So. 2d 261 (Patry v. Capps) 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

Patry v. Capps, 618 So. 2d 261, 1993 Fla. App. LEXIS 3017, 1993 WL 75792 (Fla. Ct. App. 1993).

Pincite

Opinions

BLUE, Judge.

John R. Patry and Linda J. Patry, individually and as mother and father and next friends of Chad M. Patry, a minor (Patry), contend the trial court erred in dismissing their medical malpractice lawsuit against William L. Capps, M.D. and William L. Capps, M.D., P.A. (Capps) for Patry’s failure to comply with the notice requirements of section 766.106, Florida Statutes (1991). We regret the harshness of the result in this case, but we are compelled by precedent to affirm.

It is undisputed that Patry did not give notice of intent to initiate litigation for medical malpractice by certified mail, return receipt requested, as provided in section 766.106. Instead, actual written notice was delivered to Capps. This court held that notice sent by regular (non-certified) mail was insufficient for compliance with the statute. Solimando v. Int’l Med. Centers, 544 So.2d 1031 (Fla. 2d DCA 1989), review dismissed, 549 So.2d 1013 (Fla.1989). Actual oral notice has also been held inadequate under the statute. Glineck v. Lentz, 524 So.2d 458 (Fla. 5th DCA 1988). Based on the foregoing precedent, we are unable to do other than conclude that delivery of written notice fails to comply with the statutory requirements.

Additionally Patry seeks relief on authority of Ingersoll v. Hoffman, 589 So.2d 223 (Fla.1991). The facts in the record before us do not provide a basis for estoppel or waiver as set forth in Ingersoll. Accordingly we affirm.

PARKER, A.C.J., concurs specially. ALTENBERND, J., dissents with opinion.

Free access — add to your briefcase to read the full text and ask questions with AI

BLUE, Judge.

John R. Patry and Linda J. Patry, individually and as mother and father and next friends of Chad M. Patry, a minor (Patry), contend the trial court erred in dismissing their medical malpractice lawsuit against William L. Capps, M.D. and William L. Capps, M.D., P.A. (Capps) for Patry’s failure to comply with the notice requirements of section 766.106, Florida Statutes (1991). We regret the harshness of the result in this case, but we are compelled by precedent to affirm.

It is undisputed that Patry did not give notice of intent to initiate litigation for medical malpractice by certified mail, return receipt requested, as provided in section 766.106. Instead, actual written notice was delivered to Capps. This court held that notice sent by regular (non-certified) mail was insufficient for compliance with the statute. Solimando v. Int’l Med. Centers, 544 So.2d 1031 (Fla. 2d DCA 1989), review dismissed, 549 So.2d 1013 (Fla.1989). Actual oral notice has also been held inadequate under the statute. Glineck v. Lentz, 524 So.2d 458 (Fla. 5th DCA 1988). Based on the foregoing precedent, we are unable to do other than conclude that delivery of written notice fails to comply with the statutory requirements.

Additionally Patry seeks relief on authority of Ingersoll v. Hoffman, 589 So.2d 223 (Fla.1991). The facts in the record before us do not provide a basis for estoppel or waiver as set forth in Ingersoll. Accordingly we affirm.

PARKER, A.C.J., concurs specially. ALTENBERND, J., dissents with opinion.

Cite This Page — Counsel Stack

Bluebook (online)

618 So. 2d 261, 1993 Fla. App. LEXIS 3017, 1993 WL 75792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patry-v-capps-fladistctapp-1993.

Opinions

Related

Cite This Page — Counsel Stack