Prejudice Required To Dismiss For Pre-Suit Violation

Medical Malpractice

In the case of Tuyuana Morris v. Orlando Muniz, M.D., Case Number SC16-931 (Fla. September 6, 2018), the Florida Supreme Court held a finding of prejudice is required in order for a trial judge to dismiss a medical malpractice action for an alleged Chapter 766 pre-suit violation.

Trial Judge Dismissed The Case

This case arose out of an alleged failure to diagnose and treat Tuyuana Morris over the course of three months for complaints of nausea, vomiting, and weight loss. Ms. Morris was pregnant during this time but lost 36 pounds. She delivered a stillborn child and subsequently died of a bacterial infection along with fetal demise.

As with all Florida malpractice cases, the plaintiff was required under Chapter 766, Fla. Stat. to obtain a corroborating affidavit that there are “reasonable grounds” to believe that medical malpractice has occurred (see section 766.203, Fla. Stat.). In this case, the plaintiff obtained an opinion from a medical doctor who had a lengthy career but had decided to enroll at a law school while at least maintaining a part time practice.

The defendant moved to dismiss the lawsuit claiming that the plaintiff’s doctor was not “qualified” as a expert due to the fact that she was enrolled in law school and, therefore, could not “devote professional time during the three years immediately preceding” as section 766.102(6), Fla. Stat. requires.

The trial judge held an evidentiary hearing and dismissed the case after finding the plaintiff’s expert was not qualified and because the plaintiff failed to provide sufficient pre-suit discovery responses about the expert’s qualifications before filing the lawsuit.

Ultimately, the Florida Supreme Court reversed and announced that a trial court must find that the defendant in a medical malpractice case is “prejudiced” by noncompliance with Chapter 766 in order to properly dismiss a case.

Why Is Prejudice Important?

Prejudice in the legal sense is when a party suffers a legal disadvantage. The courts, in many ways, often try to level the playing field when prejudice works to the disadvantage of a party. In this case, the defense wanted the plaintiff to provide a detailed employment history, the number of hours per week the expert devoted to a specialty, and the number of babies that the expert had delivered across a period of several years and they cried foul when the information was not provided.

As you can imagine, those details are not things that one would expect an OB/GYN to place on their CV. While the answers to those requests may not be particularly difficult to obtain or estimate, the point is that the lack of such information needs to place the defense at a disadvantage in order to be viewed as significant. On the other hand, if neither the pre-suit affidavit nor the expert’s CV provided information that would reasonably be needed to determine whether the expert was qualified, then the outcome may very well have been different as this decision is not a license for plaintiffs to disregard Chapter 766.

What Should Courts Do About Claims Of Pre-Suit Discovery Violations?

When faced with a claim that a party has committed a pre-suit violation, this case (along with Ham v. Dunmire, 891 So. 2d 492 (Fla. 2004) and Kukral v. Mekras, 679 So. 2d 278 (Fla. 1996)) suggests that “the reviewing court should determine whether there was, in fact, a discovery violation and whether that violation prejudiced the defendant.”

The preferred hearing to do this is an “evidentiary” hearing. Dismissing a case without these findings, may deprive a plaintiff of their constitutional right to access the courts. In other words, the courts should not allow nitpicking on pre-suit disagreements unless the cause is substantial.