In Rell v. McCulla, Florida’s Second District Court of Appeal explains that before suing for medical malpractice, a plaintiff must not only notify the defendants of his or her intent to sue, but also make sure that the notice clearly contains an allegation that the defendants were negligent and that this negligence led to the person’s injury.
David McCulla sued podiatrist Dr. Brian Rell and Coastal Orthopedics & Sports Medicine of Southwest Florida for negligence, alleging that he suffered a partial tear of the interior tendon in his right ankle as a result of weakening due to two arthroscopic surgeries and a steroid injection performed by Dr. Rell.
Under Florida law, a person suing for medical malpractice is required to first conduct an “investigation” to determine whether there are reasonable grounds on which to believe that the person’s injury was caused by medical negligence. The plaintiff must also notify prospective defendants of his or her intent to sue before filing a complaint in state court, including an expert opinion corroborating that there are reasonable grounds to support the claim.
In McCulla’s notice, he attached an opinion by Dr. Jeff D. Kopelman. “In my expert opinion, based on the records provided, there are reasonable grounds that the patient’s tibialis anterior tendon could have been weakened or injured by the steroid shot given by Dr. Rell,” Kopelman wrote. He did not however, proffer an opinion as to whether Rell’s treatment fell below the standard of care.
The trial court denied the defendants’ motion to dismiss the action, in which they argued that McCulla’s pre-suit notice was insufficient because it didn’t include an expert opinion indicating that the injury was caused by medical negligence. On appeal, however, the Second District sided with the defendants.
“The notice of intent to initiate litigation and the corroborating medical expert opinion, taken together, must sufficiently indicate the manner in which the defendant doctor allegedly deviated from the standard of care, and must provide adequate information for the defendants to evaluate the merits of the claim,” the Court explained.
In this case, McCulla’s notice did not clearly indicate that he had a claim for medical negligence because it did not state that Dr. Rell was negligent and that this negligence caused McCulla’s ankle injury. While Dr. Kopelman stated in his opinion that the injury may have been caused by Dr. Rell’s treatment, he did not take the extra, necessary step of indicating that the treatment fell below the appropriate standard of care and was therefore negligent.
As a result, the Court quashed the lower court’s ruling that the pre-suit notification requirements had been met and remanded the case for further proceedings.
As Mr. McCulla learned the hard way, medical malpractice claims raise a number of complicated legal issues that must be fully considered before bringing suit. The counsel of an experienced personal injury attorney is essential to pursuing a legal remedy for an injury caused by medical malpractice. At Anidjar & Levine, our South Florida medical malpractice attorneys represent clients throughout the area, including in Hialeah, Hollywood and Pompano Beach, and offer a free initial consultation from our Fort Lauderdale offices.
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