PBCBA BAR BULLETINS pbcba_bulletin_december 2018 | Page 12

BREAKING BARRIERS
&
SHARING SOLUTIONS
BENCH BAR 2019
Friday, February 22
w w w. p a l m b e a c h b a r. o r g
SPONSORSHIP OPPORTUNITIES AVAILABLE
(con’tinued from pg 11)
DISMISSAL OF A MALPRACTICE SUIT
At page 10 the court holds:
“We thus agree with Judge Swanson that, where a presuit expert clearly demonstrates that he or she is qualified in a sworn affidavit, and
the defendant has not presented any evidence to refute those qualifications, medical malpractice defendants should not be permitted “to
go on a fishing expedition in an attempt to impeach” those qualifications. Morris, 189 So. 3rd at 351 (Swanson J. dissenting).
The trial court also held that because plaintiff’s counsel had made objections during the deposition of the expert that dismissal was
justified. The Supreme Court holds consistent with prior opinions that a medical malpractice suit should never be dismissed because
of alleged violations of Fla. Stat. 766.205(2) for failure to comply with informal presuit discovery unless there is clear evidence that that
frustration of discovery resulted in prejudice to the defendants. At page 11 the court holds:
“Thus, consistent with our precedent, we hold that the trial court must make a finding of prejudice to the defendant before a medical
malpractice action can be dismissed under section 766.205(2) for a plaintiff’s failure to comply with the informal presuit discovery
process. As we have repeatedly explained, “the purpose of the chapter 766 presuit requirements is to alleviate the high cost of medical
negligence litigation through early determination and prompt resolution of claims, not to deny access to the courts to plaintiffs.”
Weinstock v. Groth, 629 So. 2d 835, 838 (Fla. 1993).
This case establishes limitations on dismissal of medical malpractice cases on the basis of noncompliance with Fla. Stat. Chap. 766,
limits defendant’s discovery concerning an expert affidavit and provides that prejudice must be shown before dismissal can occur as a
result of failure to comply with presuit discovery requests.
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