August 29, 2018

Foley & Mansfield’s medical malpractice defense trial team consisting of Kevin O’Conner and Mary Street successfully defended our client physician at the trial level and through the plaintiff’s subsequent appeal, obtaining an appellate affirmance of the trial court’s dismissal of the case with prejudice.

At the trial level, the defense moved to dismiss the complaint against our client because the plaintiff did not comply with any statutory conditions precedent to filing a medical malpractice lawsuit in Florida. Florida’s Medical Malpractice Act requires, among other things, presuit notice to the prospective defendant, an affidavit from an expert corroborating the plaintiff’s allegations of negligence, and a good faith and reasonable investigation into the basis of the claim. The trial court dismissed the case against our client with prejudice because we successfully argued that the plaintiff never notified our client of the claim during presuit, did not provide a legally sufficient corroborating expert affidavit, and did not investigate a claim against our client at all, let alone within the applicable statute of limitations.

The plaintiff appealed the dismissal to Florida’s Third District Court of Appeal, which affirmed, agreeing that the plaintiff did not comply with Florida’s Medical Malpractice Act within the applicable statute of limitations, and holding that the trial court correctly dismissed the case against our client with prejudice.