Summary
The Florida Third District Court of Appeal affirmed dismissal with prejudice of a medical negligence action against a surgeon and plastic surgery corporation. The court held that the claimant failed to conduct a reasonable pre-suit investigation under section 766.203, Florida Statutes, because the allegations that breast implants were improperly placed above the muscle were contradicted by the claimant's and another physician's testimony that the implants had been placed beneath the muscle. The court also concluded that the related negligent post-operative-care claim could not proceed independently from the improper-placement allegation.
Topics
Practice areas
Questions Presented
- Whether Hermoso satisfied Florida's statutory requirement to conduct a reasonable presuit investigation and provide corroboration before issuing notice of intent to initiate medical-negligence litigation.
- Whether the trial court properly dismissed the second amended complaint with prejudice when the claimant's own testimony and the implant-removal surgeon's testimony contradicted the factual premise of the presuit negligence allegations.
- Whether a separate negligent-postoperative-care claim could proceed when it was based on vascular compromise allegedly resulting from the same nonexistent improper implant placement.
Holdings
- A medical-negligence claimant must conduct a reasonable presuit investigation establishing reasonable grounds to believe that each named defendant was negligent and that the negligence caused injury, and must corroborate those grounds with a verified written medical-expert opinion. Hermoso failed to satisfy that requirement because her allegations and expert affidavit were based on the assertion that the implants were placed above the muscle, while the evidence established that they were placed beneath the muscle.
- The negligent-postoperative-care theory could not proceed because it was predicated on vascular compromise resulting from the alleged improper implant placement, and the record established that the implants were not improperly placed.
Key quotations
“A trial court’s ruling on a motion to dismiss is subject to de novo review.” (at 5)
“The corroborative medical opinion “assures the Defendant[], and the court, that a medical expert has determined that there is justification for the Plaintiffs’ claim, i.e., that it is not a frivolous medical malpractice claim.”” (at 6)
“Because Hermoso’s notice of intent to litigate failed to comply with the statutory requirement of a reasonable pre-suit investigation, we find the trial court properly dismissed her second amended complaint with prejudice.” (at 7)
Factual background
In November 2018, Dr. Camille Chavez performed breast-lift and implant-replacement surgery on Arline Hermoso at New Life Plastic Surgery Corporation. Hermoso's presuit notice alleged that Dr. Chavez placed the implants above rather than beneath the muscle and failed to provide adequate postoperative care for vascular compromise caused by that placement; her expert affidavit supported those allegations. During discovery, however, Hermoso testified that the implants had been placed beneath the muscle, and Dr. Jason Altman confirmed that fact after removing the implants.
Procedural history
Hermoso and Manzano filed a medical-negligence action against Dr. Chavez and New Life after completing the statutory presuit process. After an initial motion to dismiss was denied without prejudice, the defendants filed an answer and affirmative defenses, and a second motion to dismiss followed discovery concerning the implant placement. Following an evidentiary hearing, the circuit court dismissed the second amended complaint with prejudice for failure to conduct the required reasonable presuit investigation and because the postoperative-care claim was inseparably connected to the allegedly improper implant placement. The Third District Court of Appeal affirmed.