FL: presuit notice fails to mention dr. by name: failure results in dismissal of case against dr.

CASE FACTS: On March 20, 2000, Robin Allen consulted with Dr. Alfred Bonati regarding her neck and arm pain. She had a five-year history of discomfort pertaining to her cervical spine. Dr. Bonati recommended cervical foramcnoplasty surgery at C-6/C-7 on the right. On March 23, 2000, Dr. Craig Wolff performed surgery on Allen that included a "cervical foramenoplasty" and laminotomy at C-6/C-7 along with cervical nerve decompression. On July 19, 2000, Dr. Mork performed surgery, "which included microsurgical anterior discectomy with decompression of spinal cord and nerve roots at C-3/C-4 on the right." On July 26, 2000, Dr. Mork performed "micro surgical anterior cervical discectomy, C-6/C-7 on the right" along with cervical nerve decompression. The surgeries performed by Drs. Mork and Wolff did not result in any significant anatomical changes to the patient's neck and did not alleviated her problems or symptoms. Following each procedure Drs. David Hirschauer and Scott Haufe gave the patient epidural steroid injections, purportedly to prevent a hematoma from hardening and irritating the patient's nerve root. The patient brought suit against Drs. Bonati, Gulf Coast Orthopedic Center (Dr. Bonati's professional group), and Drs. Mork, Hirschauer and Haufe, all of whom were employees of Dr. Bonati's Gulf Coast Medical Center. Prior to filing suit, Allen conducted a presuit investigation as required by Florida law, and thereafter served a notice of intent to initiate litigation pursuant to Florida law. In the notice, Dr. Bonati was named as one of the persons alleged to have deviated from the prevailing standard of care. As corroboration for her claims, Allen submitted the affidavit of a board-certified orthopedic surgeon, Dr. John Ogden. Dr. Ogden's affidavit set forth in detail the basis for Allen's claims against each of the defendant physicians. However, he never mentioned Dr. Bonati. The Circuit Court, Pasco County, denied Dr. Bonati's motion to dismiss the claim as to him. Dr. Bonati's petition for a writ of certiorari was granted.

COURT'S OPINION: The District Court of Appeal of Florida reversed the judgment of the lower court which denied Dr. Bonati's motion to dismiss. The court held, inter alia that since the expert affidavit relied on by Allen did not mention Dr. Bonati by name it did not serve the purpose intended by the Florida Legislature in requiring such an affidavit prior to suit. The court construed the law to require that an attorney has reviewed the case against each and every potential defendant and has consulted with a medical expert and has obtained a written opinion from that expert sufficient to sustain a claim against that defendant. This the plaintiff and her attorney failed to do. Bonati v. Allen, No. 2D05-638 (Fla. App. 09/30/2005) So.2d--FL