By Bonnie Navin, February 15th, 2007
In Michael v. MSN, 32 Fla. L Weekly D207b (3rd DCA January 10, 2007), a man went to a hospital following a head laceration. While there he experienced chest pain, and was given 5 doses of nitroglycerine by a nurse – without physician approval. The next morning the doctor came in and determined the gentleman had had a heart attack that, because it went untreated, soon resulted in the man’s death.
Before the expiration of the statute of limitations, presuit notice was served on the hospital and the doctors. The attached affidavit cited negligence on the part of the physicians “and medical providers.” The notice also requested the identity of anyone else involved. Almost a year later, the hospital informed Plaintiff’s counsel that the nurse was an agency nurse not employed by the hospital. Plaintiff’s counsel immediately sought leave to amend to add the nurse and the agency. The Court granted leave, but then granted summary judgment in favor of the nurse and the agency finding presuit notice defective – particularly the affidavit – for failing to list a name, job title, or job description for each prospective defendant.
On appeal the Third District found that the purpose of the affidavit requirement is to demonstrate that a reasonable investigation into the claim was done (to corroberate the claim – not each defendants’ involvement). The Court further recognized that Rule 1.650(b) provides that notice to any prospective defendant can be imputed to those persons or entities in a legal relationship with the noticed defendant. The Court reasoned that if the legislature has chosen to allow notice to be imputed to defendants who are not served then there is no reason to name each of those parties individually. The Court reversed the Summary Judgement.
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