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FL: Pre-suit notice of expert witness required: patient's sister-a veteran nurse-not qualified.

CASE FACTS: In October 2005, Eugenia Derespina was admitted to a hospital in the North Broward Hospital District (NBHD) where a physician performed an elective total hip replacement on her. After the surgery, nurses employed by NBHD applied anti-embolism stocking to the patient's left thigh on doctor's orders. The patient alleged that the stocking was "too small" and caused blistering and eventually scarring. She filed suit for medical malpractice against NBHD. Accompanying her notice of intent to initiate litigation, which is required by Florida Law, was the affidavit of her sister, a nurse with forty-six years of experience, who was also the mother of her attorney. The affiant stated she had reviewed the patient's medical records and concluded that suit for medical malpractice was meritorious. NBHD filed a motion to strike the patient's pleadings, claiming that the affidavit failed to demonstrate that the patient and her counsel had reasonably investigated the merits of the patient's medical malpractice claim. NBHD contended that the affiant's bias showed the affidavit was not the product of a reasonable investigation. Following a hearing, the trial court granted NBHD's motion to strike the complaint on the grounds that the patient's failure to conduct a reasonable pre-suit investigation of her claim, and dismissed the complaint. The patient appealed.

COURT'S OPINION: The Florida Court of Appeals affirmed the judgment of the lower court dismissing the patient's complaint. The court held, inter alia, that the patient submitted the affidavit of her sister, who happened to be the mother of her attorney. After an evidentiary hearing at which the patient's sister testified, the lower court determined that the affiant was not unbiased, since she was the sister of the patient and the mother of the patient's attorney. The court noted that the patient's expert witness had not billed for her time involved in reviewing the patient's file, something an independent expert would have done, expecting compensation for her work. The court observed that while the patient's sister was a nurse of long-standing, she had no special expertise in the subject matter in question. The court concluded that the patient could have easily obtained a nurse in the Fort Lauderdale area, without family ties, to give an expert opinion. However, none was ever sought. Thus, the court concluded that the trial court correctly decided, after a hearing, that the investigation of malpractice conducted by the patient did not constitute the reasonable investigation contemplated by Florida law. Accordingly, the court concluded that in ruling that the patient failed to comply with Florida law did not constitute an abuse of discretion by the trial court. Derespina, v. North Broward Hospital Dist., 4D08-2670 (10/14/2009)-FL

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's. Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Legal Case Briefs for Nurses
Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Article Type:Case overview
Geographic Code:1U5FL
Date:Nov 1, 2009
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