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Estevez v. Montero
Citations: 662 So. 2d 1268; 1995 WL 521114Docket: 94-2219
Court: District Court of Appeal of Florida; September 6, 1995; Florida; State Appellate Court
Dr. Francisco Estevez and his professional association appeal a non-final order that granted Evila Montero's motion to strike their pleadings in a wrongful death lawsuit concerning Julio Montero. The plaintiff served a presuit notice of intent to initiate litigation via certified mail in September 1993, but the defendants did not respond within the required 90-day presuit screening period. Following the expiration of this period, the plaintiff filed suit, and the defendants denied negligence without providing a corroborating medical expert opinion or evidence of a good faith investigation. Dr. Estevez testified at the motion hearing, explaining that he did not notify his insurance carrier or attorney due to being self-insured, and instead conducted his own investigation by consulting other doctors and an expert. The trial court determined that his investigation was insufficient under Florida Statutes sections 766.106(3)(a) and 766.203(3), finding no evidence that he had made a reasonable or good faith inquiry into the claims against him. Consequently, the court struck the defendants' pleadings, allowed the case to proceed to trial on the issue of damages, and awarded attorney's fees and costs to the plaintiff. The defendants argue that the trial court erred in striking their pleadings, asserting that Dr. Estevez conducted a reasonable investigation; however, the appellate court disagrees. The relevant statute prohibits filing a lawsuit until 90 days after notice is mailed, during which time a thorough investigation is mandatory. The procedure outlined involves several steps for evaluating medical malpractice claims, including: an internal review by a qualified claims adjuster; forming a panel of an attorney, a health care provider in the relevant specialty, and a claims adjuster; entering into an agreement with a professional society that has a medical review committee; or any similar method that fairly assesses the claim. Non-compliance with this section may lead to dismissal of claims or defenses. In the case at hand, Dr. Estevez testified that after receiving a notice of intent, he consulted with other physicians involved in the decedent's care and an expert on liability, but did not bring or allow them to review the medical charts, nor did he obtain written medical expert opinions to support his claim of non-negligence. Consequently, it was determined that Dr. Estevez's actions did not meet the statutory requirements for a reasonable investigation as specified in Florida Statutes sections 766.106(3)(a)(1), (3), and (4). The trial court ruled that the defendants failed to make a good faith rejection of the malpractice claim and had unreasonably not complied with the relevant statutes, leading to the granting of relief to the plaintiff. The decision is affirmed.