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Berry v. Padden
Citations: 84 So. 3d 1145; 2012 WL 1020048Docket: No. 4D11-779
Court: District Court of Appeal of Florida; March 28, 2012; Florida; State Appellate Court
The trial court dismissed the plaintiffs, Elsie and Carl Berry's, medical malpractice complaint against Dr. David Padden and Lighthouse Orthopedic Associates with prejudice due to noncompliance with mandatory pre-suit requirements. The plaintiffs alleged malpractice related to a knee replacement surgery performed on April 27, 2006, claiming that Dr. Padden improperly installed an oversized tibial component. They provided a Certification of Counsel indicating a good faith belief in negligence but failed to include a verified written medical expert opinion as required by Florida Statute 766.203 prior to the expiration of the statute of limitations on October 31, 2008. Although they submitted a verified opinion from orthopedic surgeon Dr. Christopher J. Cassels on May 19, 2009, this was after the statutory deadline. The defendants moved to dismiss, asserting that the plaintiffs had not provided the necessary verified opinion within the required timeframe. The trial court agreed, emphasizing the necessity of a verified expert opinion to corroborate the claim before the statute of limitations expired. The court's dismissal was affirmed on appeal, as the plaintiffs did not challenge the lack of verification but rather the dismissal itself, reinforcing the legal requirement for timely compliance with pre-suit investigation standards under Florida Statutes. Failure to comply with statutory pre-suit requirements does not result in dismissal with prejudice if the statute of limitations has not expired (Popps v. Foltz). However, a physician’s pro se response can be struck if it does not meet pre-suit screening requirements (Hoeltzell v. Erenstoft). A plaintiff's failure to file a corroborating medical expert opinion before the statute of limitations expires can justify dismissal with prejudice (Archer v. Maddux). A trial court may err by refusing to dismiss a complaint for not attaching a verified medical expert opinion (Central Florida Reg’l Hospital v. Hill). Nonetheless, failure to file a verified medical opinion is not fatal if compliance is achieved before the statute of limitations expires (Suarez v. St. Joseph’s Hosp. Inc.). In the case at hand, the plaintiffs only provided an unverified medical opinion before the statute of limitations expired, leading to the trial court’s order to dismiss the complaint with prejudice being affirmed. Key dates include surgeries performed on 4/27/06 and 10/31/06, a medical opinion sought on 10/4/06, a presuit notice sent on 8/21/08, and an unverified opinion from Dr. Cassels received on 10/27/08, with the statute of limitations expiring on 1/29/09 and 3/30/09 due to applicable extensions. A verified expert opinion was executed on 5/12/09.