Florida/Georgia Personal Injury & Workers Compensation

...Carolann Kozel filed a medical malpractice complaint against Steven Ostendorf on July 25, 1989 in the circuit court of Lee County. Ostendorf filed a motion to dismiss on the grounds that the complaint failed to state a cause of action and that Kozel failed to comply with section 766.205, Florida Statutes (1989)....

...Sections 766.106(5)-(9) and 766.204-.205 provide for informal presuit discovery after a notice of intent is issued, and require each party to provide the other with "reasonable access to information within its possession or control in order to facilitate evaluation of the claim." § 766.205(1), Fla.Stat....

...Section 766.104 refers to a written medical opinion "that there appears to be evidence of medical negligence." Section 766.203(2) provides that the medical expert opinion is for "corroboration of reasonable grounds to initiate medical negligence litigation." And § 766.205(1) specifically provides that the medical opinion need only corroborate that "there exists reasonable grounds for a claim of negligent injury." Obviously, the corroborative medical opinion adds nothing to the Plaintiffs' notice of their claim....

...ing opinion at the time they were served the notice of intent. Thus, their subsequent defenses, including that of the two year limitation of actions in section 95.11, were subject to dismissal pursuant to section 52(2), Chapter 88-1, now codified as section 766.205(2), Florida Statutes (1991)....

...the word "served" for "filed" before the Legislature made the correction the following July) could serve to waive the requirement of written medical corroboration altogether pursuant to the provisions of section 52(3), Chapter 88-1, now codified as section 766.205(3), Florida Statutes (1991)....

...therefore, fatal to the plaintiffs' action. We disagree with the trial court. Even if the defendants' refusal to provide discovery in violation of the statutes did not waive the requirement of a written medical corroboration pursuant to what is now section 766.205(3) — and we do not see why it would not — it is clear from reading Chapter 766 in its entirety that the corroboration required by section 766.203(2), although statutorily required (in this case) to be provided at the same time as th...

...n February, 1990, is not part of that notice for jurisdictional purposes. See § 766.203(2)(b). As argued by the appellants, the very language of the statute itself does not make the corroborative medical opinion part of the notice of intent to sue. Section 766.205(1) refers to the fact that the notice of intent is to be "corroborated by" a medical expert opinion....

...Section 766.104 refers to a written medical opinion "that there appears to be evidence of medical negligence." Section 766.203(2) provides that the medical expert opinion is for "corroboration of reasonable grounds to initiate medical negligence litigation." And § 766.205(1) specifically provides that the medical opinion need only corroborate that "there exists reasonable grounds for a claim of negligent injury." Obviously, the corroborative medical opinion adds nothing to the Plaintiffs' notice of their claim....

...See Testa v. Pfaff, 464 So.2d 220 (Fla. 1st DCA 1985). Thus, dismissal on that basis was premature. We also reject as a ground for dismissal the hospital's claim that the Ragoonanans failed to cooperate in good faith with presuit discovery, as required by section 766.205, Florida Statutes....

...Section 766.104 refers to a written medical opinion "that there appears to be evidence of medical negligence." Section 766.203(2) provides that the medical expert opinion is for "corroboration of reasonable grounds to initiate medical negligence litigation." And § 766.205(1) specifically provides that the medical opinion need only corroborate that "there exists reasonable grounds for a claim of negligent injury." Obviously, the corroborative medical opinion adds nothing to the Plaintiffs' notice of their claim....

...ffidavit itself from formal discovery and admissibility, then we must disagree. To the extent that Citron would allow an opposing party to use a corroborative affidavit to impeach witness testimony at trial, we disapprove that decision and hold that section 766.205(4) protects the corroborative affidavit from any use by the opposing party, including impeachment of the expert witness who prepared the affidavit....

...88-277, § 48, at 1494, Laws of Fla. At the heart of the presuit investigation amendments was the requirement that an expert's affidavit be obtained and that it be attached to the notice of intent to initiate litigation. See § 766.203(2), Fla. Stat. (1989). Section 766.205(4), which is virtually identical to section 766.106(5), was also added at that time. [6] However, the simultaneous enactment of sections 766.205(4) and 766.203(2) may indicate that the legislature intended section 766.205(4), rather than section 766.106(5), to apply to the affidavit attached to the notice of intent....

...tigation, covering the period between the serving of the notice of intent and the filing of the suit. While section 766.106(5) is the basis for the district courts' opinions at issue here, based upon the history of chapter 766, we believe that it is section 766.205(4), and not section 766.106(5), which prevents a party from using a corroborative affidavit to impeach witness testimony at trial. However, since the language of section 766.106(5) is virtually identical to that of section 766.205(4), our analysis of this issue remains the same regardless of what section is used....

...very of the presuit screening process does not defeat the legislature's ability to protect that item from formal discovery after initiation of the suit and from admissibility at trial. Finally, we emphasize that the clear and unambiguous language of section 766.205(4) provides that "[n]o statement, discussion, written document, report, or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing part...

...nerated by the presuit investigation process and, as such, enjoys the protection of the statute. Conclusion For the reasons expressed above, we hold that the presuit affidavit required by sections 766.203(2) and (3) is protected by the provisions of section 766.205(4)....

...g that this information be disclosed to the opposing party. While the notes prepared by the expert to assist him in preparing the medical opinion may be protected as work product because they are not required to be disclosed to the opposing party by section 766.205(4), see Whealton v. Marshall, 631 So.2d 323 (Fla. 4th DCA 1994), his opinion contained in the affidavit disclosed to the opposing party should not be. Section 766.205(4), Florida Statutes (1995), expressly provides: No statement, discussion, written document, report, or other work product generated by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party....

...trustees, employees, and agents thereof, physicians, investigators, witnesses, and employees or associates of the defendant, are immune from civil liability arising from participation in the presuit screening process. (Emphasis supplied.) [9] Thus, section 766.205(4), Florida Statutes, provides an immunity from discovery or admission into evidence only of "work product" material generated by the presuit investigation process. [10] The statutory reference to " other work product" in section 766.205(4) demonstrates that the statements, documents, etc., referred to earlier in the statutory sentence refer to work product....

...ndamental rule of statutory interpretation, courts should avoid reading a statute in a way that would render other parts of the statute meaningless. See Unruh v. State, 669 So.2d 242, 245 (Fla.1996). This rule illustrates why sections 766.106(5) and 766.205(4), Florida Statutes, apply only to work product material....

....106(11) provides that where there are plural potential defendants "[n]o offer by any prospective defendant to admit liability and for arbitration is admissible in any civil action." If the Legislature intended the language in section 766.106(5) and 766.205(4) to be all-encompassing, and not limited to work product, there would be no need for these other specific discovery and evidentiary protections....

...ction 766.203(2) to be disclosed to the opposing party as corroboration of the lack of reasonable grounds for medical negligence litigation. As such, it maintained the "work product" status that is intended to be protected by sections 766.106(5) and 766.205(4)....

...All participants, including, but not limited to, physicians, investigators, witnesses, and employees or associates of the defendant, are immune from civil liability arising from participation in the presuit screening process. [3] For the following reasons, we conclude that it is section 766.205(4), and not section 766.106(5), which protects the presuit affidavit....

...Further, in the quote relied upon by petitioners, the court stated: "We understand the work product protection in section 766.106 not to apply to the corroborating opinion requirement ..." as opposed to the corroborating opinion itself. See id. (emphasis added). [6] Section 766.205(4) provides in pertinent part: (4) No statement, discussion, written document, report, or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party....

...nable investigation. Although section 766.106(5) provides civil immunity to all participants in the presuit screening process, it does not preclude the other statutory sanctions provided. [8] This protection is identical to that which is provided in section 766.205(4). [9] I agree with the majority that it is section 766.205(4) and not 766.106(5) that is at issue in this case....

...[11] In another part of the opinion, the court refers to section 766.106(5) as the section "which provides that work product generated during the pre-screening process is not discoverable." Citron, 689 So.2d at 1290. This language lends further support that the language in sections 766.106(5) and 766.205(4) only talks about work product....

medical malpractice claims in violation of section 766.205, Florida Statutes (2011). Significantly, in

...Section 766.104 refers to a written medical opinion "that there appears to be evidence of medical negligence." Section 766.203(2) provides that the medical expert opinion is for "corroboration of reasonable grounds to initiate medical negligence litigation." And § 766.205(1) specifically provides that the medical opinion need only corroborate that "there exists reasonable grounds for a claim of negligent injury." Obviously, the corroborative medical opinion adds nothing to the Plaintiffs' notice of their claim....

...not to set forth in protracted detail the plaintiff's theory of the case. Contrary to ORMC's position, nothing in the statute requires that the corroborating expert opinion identify every possible instance of medical negligence. § 766.203; see also § 766.205(1)....

...Instead, section 766.203(2), Florida Statutes, indicates that "[c]orroboration 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. . . ." ß 766.203(2), Fla. Stat. (2004)(emphasis added). Further, section 766.205(1) refers to the requirement of an investigation "corroborated by medical expert opinion that there exist reasonable grounds for a claim of negligent injury." ß 766.205(1), Fla....

...claim and whether there was a reasonable basis for the suit, the attorney put some records and documents in evidence, and proffered others only if viewed in camera by the court after asserting work product and attorney-client privilege and citing to section 766.205(4)....

...Sanctions were imposed in Duffy, pursuant to section 766.206(3), primarily because the defendant failed to make this additional showing. Accordingly, we reverse the order appealed in this case and remand for further proceedings. REVERSED and REMANDED. DIAMANTIS, J., and WHITE, A.B., Associate Judge, concur. NOTES [1] Section 766.205(4) provides: (4) No statement, discussion, written document, report, or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party....

...ice mandated by section 766.106, Florida Statutes. Defendant/Appellee's failure to provide full and complete medical records under section 766.204, Florida Statutes, which prevented the plaintiffs from obtaining a medical affidavit as required under section 766.205, Florida Statutes, did not constitute a waiver of the required notice....

...In August 1995, counsel sent a letter requesting copies of x-rays, CT scans or MRIs, obstetric ultrasounds, and cyanogenic studies. Appellee did not respond. Appellants filed a medical malpractice complaint on November 2, 1995, but did not file an affidavit of corroborating medical opinion as required by section 766.205, or a notice of their intent to file suit as required by section 766.106....

...tail the plaintiffs theory of the case. Contrary to ORMC's [Orlando Regional Medical Center] position, nothing in the statute requires that the corroborating expert opinion identify every possible instance of medical negligence. § 766.203; see also § 766.205(1)....

...ioner's notice of intent to initiate medical negligence litigation. Corroboration of reasonable grounds to initiate medical negligence litigation by a medical expert is a component of the presuit investigation process. § 766.203, Fla. Stat. (1993). Section 766.205(4), Florida Statutes (1993), provides: "No statement, discussion, written document, report, or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose...

...ther petitioner's claim rests on a reasonable basis. Such a deposition would, of necessity, include statements, discussions and references to work product generated solely by the presuit investigation process. Therefore, the deposition would violate section 766.205(4), which provides no exception to the discovery privilege....

...The defendant has 90 days from this notice to determine if there are reasonable grounds to believe the claimant was not injured by the defendant's negligence. § 766.106(3). During this period, the parties are required to cooperate in "informal" discovery. § 766.205. The claimant is allowed to file a lawsuit only after the 90 days has expired or after the defendant has denied the claim. § 766.106(3). A party's lack of good faith cooperation in the informal discovery may result in sanctions. § 766.205(3)....

...We conclude a claimant is not obligated to engage in informal discovery before the "notice of intention to initiate medical malpractice litigation" is mailed. Likewise, a prospective defendant is under no statutory obligation to investigate a claim before receiving that notice. § 766.106(3)(a). Section 766.205(1) provides that upon completion of presuit investigation resulting in this notice of intent, "each party shall provide to the other party reasonable access to information." Florida Rule of Civil Procedure 1.650(b)(1) provides that the notice of intent makes the recipient a party to the proceeding....

...but not one that would allow access to a potential claimant's medical and financial records without a precipitating event. We conclude that the precipitating event is the notice of intent to initiate litigation. Golden relied on sections 766.204 and 766.205 in his motion to dismiss; both were cited in the trial court's order granting dismissal of Wilkinson's complaint....

...Even assuming that this section places an earlier duty on a claimant, the failure to comply only waives the right to receive medical corroboration from the opposing party. This section, therefore, does not support dismissal as the sanction for failing to provide medical records. Section 766.205 provides specifically that the duty of informal discovery begins after notice of intent to initiate litigation....

...Hoffman, Jr., M.D. *325 PER CURIAM. Petitioner seeks a writ of certiorari to quash an order of the trial court compelling production of two documents. Petitioner argues that the documents are protected from discovery under the presuit investigation statute, section 766.205(4), Florida Statutes, as well as the work product privilege....

...We grant the petition for writ of certiorari and quash the trial court's order compelling production of the documents. The documents at issue include an internal memorandum prepared by petitioner's counsel and typed summary notes of petitioner's expert. Section 766.205(4) provides in pertinent part: No statement, discussion, written document, report, or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party....

...The expert prepared the summary notes to assist him in conducting a medical records review months before drafting his verified opinion. Thus, the expert generated these notes as part of the presuit investigation process. As a result, the expert's summary notes are not discoverable by the opposing party under section 766.205(4)....

...The law firm memorandum, however, does not fall under the presuit investigation privilege because the memorandum was prepared after the presuit investigation process was completed. Thus, the memorandum was not "generated solely by the presuit investigation process" within the meaning of section 766.205(4)....

...GUNTHER and PARIENTE, JJ., concur. WARNER, J., concurs specially with opinion. WARNER, Judge, concurs specially. I concur in the majority opinion that the documents in question are neither discoverable nor admissible in court by the opposing party, as set forth in section 766.205(4)....

NELSON, D.S., Associate Judge. In this medical malpractice action, the parties raise three issues on appeal, two of which merit discussion and reversal— whether the trial court properly interpreted section 766.205(4), Florida Statutes (2010), concerning admissibility of pre-suit affidavits, and whether those affidavits established a genuine issue of material fact precluding summary judgment in this case....

...Brandon Scalice and that Orlando Health’s breach resulted in Brandon contracting Group B Streptococcus and his death, which were both foreseeable and preventable. *217 The trial court refused to consider the Estate’s pre-suit affidavits based on section 766.205(4), which provides, in pertinent part: “No statement, discussion, written document, report, or other work product generated solely by the pre-suit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party.” We agree with the Estate that the trial court misinterpreted the statute. The plain language of section 766.205(4) only precludes “the opposing party” from admitting pre-suit documents; it does not preclude a party from using its own pre-suit documents....

...For this reason, Orlando Health’s reliance on Cohen v. Dauphinee, 739 So.2d 68 (Fla.1999), is unavailing as that case involved a defendant attempting to introduce the plaintiffs pre-suit affidavit to impeach the plaintiffs expert during trial. Clearly, that use is prohibited by section 766.205(4)....

...We also note that the pre-suit investigation which is part of that plan, § 766.201(2)(a), is specifically geared to the investigation of medical negligence claims, § 766.203, and that pre-suit discovery provisions apply to cases in which there are grounds for a "claim of negligent injury," § 766.205(1) (emphasis added), as do provisions allowing the court to determine if a claim or denial is reasonable, § 766.206....

...Fahel unsuccessfully attempted to depose Dr. Khilnani, who by then had moved to a different state. Dr. Fahel’s counsel then requested that a commissioner be appointed to depose Dr. Khilnani. At a subsequent hearing, the plaintiffs’ counsel objected on the basis of privilege, citing to section 766.205(4), which provides: “No statement, discussion, written document, report, or other work product generated solely by the pre-suit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party.” Thereafter, the trial court learned, for the first time, that Dr....

...es raised by the plaintiffs. Reversed and remanded. . Dr. Fahel asserts that the plaintiffs waived any entitlement to an evidentiary hearing because plaintiffs' counsel objected to the appointment of a commissioner to depose Dr. Khilnani pursuant to section 766.205(4). As section 766.205(4) merely pertains to the dis-coverability or admissibility of any "statement, discussion, written document, report, or other work product generated solely by the presuit investigation process,” we disagree....

...At the evidentiary hearing, Davi testified that she did not speak with anyone from Frankel's office and did not agree to extend the deadline for the presuit discovery. After hearing argument, the court dismissed Vincent's case with prejudice on the grounds that dismissal was mandatory under section 766.205, Florida Statutes, if there was a failure to comply with presuit requirements. Section 766.205, Florida Statutes (2001), provides: (1) Upon the completion of presuit investigation pursuant to s....

WHATLEY, Judge. Elias Kanaan, M.D., filed this petition for writ of certiorari seeking to quash a circuit court order which compelled him to provide notes that he, claims are exempt from discovery pursuant to section 766.205(4), Florida Statutes (2005)....

...Schwegel, 572 So.2d 12 (Fla. 2d DCA 1990). Accordingly, we grant Kanaan’s petition for writ of certiorari, quash the circuit court’s order, and remand for further proceedings consistent with this opinion. NORTHCUTT and SILBERMAN, JJ., Concur. . Section 766.205(4) provides, “No statement, discussion, written document, report, or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party.�...

..."Such access [to information within a party's possession or control] shall be provided without formal discovery, pursuant to s. 766.106, and failure to so provide shall be grounds for dismissal of any applicable claim or defense ultimately asserted." Section 766.205(2), Florida Statutes (emphasis added)....

trial. The Court, construing the terms of section 766.205(4), Florida Statutes, determined that this

...Appellants assert that the trial court erred in granting Appellees’ summary judgment motion because (1) the motion was premature; and (2) the trial court improperly found that Appellants’ pre-suit expert affidavit filed in opposition to the motion was inadmissible under section 766.205(4), Florida Statutes (2024)....

...(emphasis added). It is unnecessary to address Appellants’ first argument because their second argument is dispositive. In Scalice v. Orlando Regional Healthcare, 120 So. 3d 215 (Fla. 5th DCA 2013), this court held that a plaintiff’s pre-suit expert affidavit is admissible under section 766.205(4) to oppose the defendant’s motion for summary judgment in a medical malpractice action, explaining that “[t]he plain language of section 766.205(4) only precludes ‘the opposing party’ from admitting pre-suit documents; it does not preclude a party from using its own pre-suit documents.” Scalice, 120 So....

2d 1268 (Fla. 3d DCA 1995). Similarly, in section 766.205(2), which *631is not applicable here either

...Because the information obtained during presuit screening is protected from formal discovery, the information obtained before the presuit screening period time has expired, and is confidential. Formal discovery may not be instituted until a lawsuit has been formally filed. Because of the clear and unambiguous language of section 766.205(4), which provides that "[n]o statement, discussion, written document, report or other work-product generated solely for the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposi...

...ty," formal production of privileged documents and formal videotaped depositions sought to be obtained prior to the expiration of the presuit screening period would be public record, and, if not quashed, violative of the confidentiality privilege of section 766.205(4). Because any deviation from the clear and unambiguous language of section 766.205(4) would contravene the mandates of the presuit screening procedure and statute, we find that the trial court departed from the essential requirements of law in denying Miami Children's motions for protective order and to quash subpoena duces tecum....

...The trial court dismissed appellant’s wrongful death complaint for failure to satisfy statutory presuit requirements for medical malpractice actions. In granting appellees’ motion to dismiss, the trial court found that appellant failed to provide reasonable access to information during pre-suit investigation pursuant to section 766.205(2), Florida Statutes (2011), and that, based on this failure, the record did not support a finding that her medical expert was qualified under sections 766.102(5)(a)2., (6) and- (9), Florida Statutes (2011)....

...1 The presuit medical expert opinion is subject to discovery. § 766.203(4), Fla. Stat. Failure to provide reasonable access to information during presuit “shall be grounds for dismissal of any applicable claim or defense ultimately asserted.” § 766.205(2),....

...ions that appellant failed to offer sufficient proof of her proffered expert’s statutory qualifications, and that appellant’s lack of cooperation with appellees’ attempts to verify the expert’s qualifications merited dismissal under sections 766.205(2) and 766.206(2), Florida Statutes....