IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC L.T. CASE NO CA-06610

Transcription

1 IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO. SC DAVID McCULLA and MARGARET McCULLA, Wife, 2DCA CASE NO. 2D L.T. CASE NO CA vs. Petitioners. BRIAN C. RELL, D.P.M. and COASTAL ORTHOPEDICS & SPORTS MEDICINE OF SOUTHWEST FLORIDA, P.A. Respondents. PETITIONERS' BRIEF ON JURISDICTION Louis Thaler, Esquire The Florida Bar No LOUIS THALER, P.A. Two Alhambra Plaza Penthouse II - Suite C Coral Gables, Florida (305) (305) Fax

2 TABLEOFCONTENTS Table of Contents Table of Citations i ii Statement of Case and Facts 1 Summary of Argument 5 Argument 6 Conclusion 10

3 TABLE OF CITATIONS CASES: PAGE Davis v. Orlando Regional Medical Center, 654 So.2d 664 (Fla.App.5th 1995) 10 Jackson v. Morillo, 976 So.2d 1125 (Fla.App.5th 2007) 10 Rell v. McCulla, 2012 WL , 37 Fla. L. Weekly D2399, (Fla.App. 2d 2012) 5 St. Mary's Hospital v. Bell, 785 So.2d 1261 (Fla. 4th DCA 2001) 6, 9 Tracey v. Barrett, 550 So.2d 55 8 (Fla.App2d 1989) 10 Williams v. Oken, 62 So.3d 1129 (Fla. 2011) 6, 7, 9, 10 Williams v. Powers, 619 So.2d 980 (Fla.App.5th 1993) 10 Wolfsen v. Appelgate, 619 So.2d 1050 (Fla.App. l st 1993) 9 FLORIDA STATUTES: (1)

4 STATEMENT OF THE FACTS AND CASE This case is a medical malpractice action brought by Respondents, Plaintiffs below, David McCulla (the patient) and his wife Margaret McCulla (hereinafter "Petitioners") against Defendants below, Brian C. Rell, D.P.M. and his employer Coastal Orthopedics & Sports Medicine of Southwest Florida, P.A. (hereinafter "Respondents"). The essential facts alleged arise out of two surgeries performed by Dr. Rell on the foot and ankle of the patient which resulted in permanent and significant damage to the involved anatomy. On March 7, 2001, Petitioners, through undersigned counsel, sent a certified mailed Notice of Intent to Sue Letter to Respondents to commence the 90-day presuit screening process under Florida Statute Chapter 766. Attached to this letter was the Verified Opinion of Medical Expert Jeff Kopelman, DPM executed before a notary on March 4, 2011 and Dr. Kopelman's Curriculum Vitae. Also attached were copies of the voluminous records compiled by Petitioners to date. The letter contained nine (9) requests for discoverable presuit information. Dr. Kopelman's Verified (sworn and written) Opinion of March 4, 2011 stated (emphasis added): My name is Jeff Kopelman. I graduated from Barry University School of Podiatry in 1990 and was Valedictorian of my class. I did a two year surgical residency in Plantation, Florida and have been in practice for approximately 20 years. I am board certified in podiatric surgery. I was the first podiatrist with surgical privileges at Bayfront Hospital and St. Anthony's Hospital and the first head of podiatry at St. Anthony's Hospital in St. Petersburg. I have worked as a podiatric consultant for All Florida Orthopaedics for approximately 15 years. I am familiar with the standards 1

5 or care and prevailing professional practices for podiatric surgeons in the State of Florida. My presuit expert opinions are based on the records presented to me on patient David E. McCulla from Brian C. Rell, D.P.M. of Coastal Orthopedics & Sports Medicine and James M. Cottom of Sarasota Orthopedic Associates. Mr. McCulla was first seen by Dr. Rell on November 5, The patient had a previous medical history of multiple previous ankle sprains and previous ankle surgery on the right foot and ankle. An MRI on November 11, 2008 showed multiple bony fragments in the patient's right ankle as well as possible avascular necrosis of the talus and chronic medial and lateral ligamentous injury. On December 12, 2008 and January 28, 2009, the patient underwent arthroscopic surgeries performed by Dr. Rell at the Surgery Center at Pointe West. The patient would be last seen by Dr. Rell in follow-up on April 22, Mr. MCulla sought a second opinion from Dr. Cottom on September 3, Dr. Cottom's assessment that date included a "...possible partial tear tibialis tendon..." An MRI of the right ankle on September 9, 2009 revealed a "...hypertrophic partial tear of the anterior tibialis tendon..." Dr. Cottom would perform surgery on the patient's right ankle on May 12, 2010 and June 22, According to the records, Dr. Cottom felt that the medial anterior port of the arthroscopic surgery by Dr. Rell partially tore the tibialis anterior tendon. Dr. Cottom's Operative Report of May 12, 2010 states "...in addition, he did develop a partial tear with tibialis anterior tendon as a result of previous arthroscopic debridement, where the instrumentation openly irritated tibialis anterior tendon..." Additionally, going back to Dr. Rell's records, on March 16, 2009, which coincidentally state that the tibialis anterior tendon was tested and had a strength of 5/5, Dr. Rell injected.25% of dexamethasone phosphate into some scar buildup along the medial anterior portal incision site.the concerns here, which would warrant further investigation, are (a) did the steroid go into the tendon and possibly weaken it and/or (b) predispose it to tearing? The evaluation of these concerns warrants further investigation 2

6 especially because the degree of previous infection is difficult to determine due to the lack of detail in the notes. 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. This is notwithstanding that we are dealing with a patient with previous ankle medical history, as well as five surgeries on his foot, and therefore with increases in his risks of scarring, arthritis and possible future foot problems. I certify that I have never had any opinion disqualified by any court under penalty of perjury. I declare that I have read the foregoing and the facts stated are true to the best of my knowledge and personal belief and are stated within a reasonable degree of podiatric medical certainty. I recognize the purpose of this Verified Opinion is to allow for the initiation of further investigation and a presuit screening process under Florida Law and accordingly I reserve the right to amend these opinions if any new or different information warrants same. Thereafter, a full presuit screening occurred between the parties including exchanges of information and data, HIPAA authorizations, records, diagnostic films, etc. By letter dated March 22, 2011, Respondents' counsel established a presuit expiration date of June 16, 2011, which was not contested. On June 13, 2011, three days before the agreed end of the 90-day presuit period, Respondents served a letter first raising a challenge to Dr. Kopelman's verified opinion. On June 16, 2011, Respondents' insurer, FPIC, served a letter denying the claim with a written opinion of their expert dated June 1, On October 4, 2011, Petitioners timely filed suit. Attached to the Complaint 3

7 for Damages were the original Verified Opinion and an Addendum to the Verified Opinion of Jeff D. Kopelman dated September 23, 2011 which stated: To clarify and supplement my Verified Opinion dated March 4, 2011, I would state that, based on the records reviewed, there exist reasonable corroborating grounds to further investigate a claim of medical negligence against Brian Rell, DPM and the causation of damage to patient David McCulla's anterior tibialis tendon. I continue to reserve the right to modify my opinions based on additional information. On October 27, 2011, Petitioners served a Motion to Dismiss Action. On November 9, 2011, Respondents served an "Amendment to Complaint by Interlineation" which addressed another issue raised by Respondents that the Addendum of September 23, 2011 by Dr. Kopelman set forth above was not notarized; even though notarization is not required, Dr. Kopelman again declared that his Verified Opinion and Addendum were true and accurate under oath. The Motion to Dismiss Action was specially set for hearing before lower Circuit Court Judge Peter A. Dubensky on January 5, On December 30, 2011, Petitioners served a "Response to Motion to Dismiss Action." On January 5, 2012, the lower court judge conducted a specially set hearing on the Motion to Dismiss Action. On January 17, 2012, the lower court judge entered its own 4-page Order denying the Motion to Dismiss Action. On February 16, 2012, Respondents filed the Petition for Writ of Certiorari with the Second District Court of Appeal and on February 17, 2012, Respondents served a Motion for Reconsideration of Motion to Dismiss Action and a 4

8 Memorandum of Law in the lower court. On February 22, 2012, without hearing or even a response from Petitioners, the lower court judge denied the Respondents' Motion for Reconsideration of Motion to Dismiss Action. The case was fully briefed in the Second District Court of Appeal and Oral Argument occurred August 1, On October 12, 2012, the Second District Court of Appeal rendered its decision in this case. Rell v. McCulla, 2012 WL , 37 Fla. L. Weekly D2399 (Fla.App. 2d 2012) [Appendix Exhibit A]. On October 24, 2012, Petitioners filed a Motion for Rehearing which was denied on November 26, This Petition ensued. SUMMARY OF ARGUMENT & BASIS OF JURISDICTION The appeal issues presented by the instant Petition involve the granting by the Second District Court of Appeal of Respondents' (petitioners below) Petition for Writ of Certiorari and the quashing of the order of the lower trial court judge denying Respondents' motion to dismiss action and denying Respondents' motion for rehearing of the first order. The Respondents' motion to dismiss action had challenged the interpretation of the presuit verified opinion of Petitioners' expert. Petitioners seek to invoke the discretionary jurisdiction of this Court because there is an express and direct conflict between the decision in this case of the Second District Court of Appeal, Rell v. McCulla [Appendix Exhibit A], and the Supreme 5

9 Court of Florida, Williams v. Oken, 62 So.3d 1129 (Fla. 2011), on the same issues of law and involving the limits of certiorari jurisdiction. Despite the limits expressed by this Court in Williams, the Second District did the opposite and clearly exceeded those limits. The Second District is also directly in conflict with a decision of another district court of appeal, St. Mary's Hospital v. Bell, 785 So.2d 1261 (Fla. 4th DCA 2001)(cited and approved in Williams). ARGUMENT The record demonstrates that three (3) days prior to the agreed end of the 90-day presuit screening process and after the exchange of information and documents in this medical (podiatric) malpractice case, the instant Respondents (defendants and petitioners below), first challenged the merits of the sworn, notarized, verified, written opinion of the patient's presuit expert (Jeff Kopelman, DPM), a board-certified podiatrist, whose actual qualifications are not in question and were not questioned below. As demonstrated in the Statement of Case and Facts, Dr. Kopelman would review the matter on two additional occasions. The Respondents' filed a Motion to Dismiss Action which was heard by the lower Circuit Court Judge Peter Dubensky on January 5, Judge Dubensky would draft his own order entered January 17, 2012 setting forth his analysis and reasons for denying the motion to dismiss action, accepting Dr. Kopelman's verified opinion and Petitioners' counsel's proffer as to said counsel's efforts in 6

10 conducting the presuit investigation. Respondents then filed a Petition for Writ of Certiorari in the Second District Court of Appeal and a Motion for Rehearing of the Order Denying the Motion to Dismiss Action in the lower court. Judge Dubensky again entered his own order, without further hearing or even a response from Petitioners, denying said motion for rehearing. This Court in Williams v. Oken, 62 So.3d 1129 (Fla. 2011), has mandated that certiorari jurisdiction be limited the rarest of circumstances where three elements are established: (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal. As set forth in Williams v. Oken, certiorari review is intended to fill the interstices between direct appeal and the other prerogative writs and allow a court to reach down and halt a miscarriage ofjustice where no other remedy exists; it was never intended to redress mere legal error. In Williams v. Oken, the question of a presuit expert's qualifications to give an opinion in a medical malpractice case were at issue. This Court determined: "...the First District exceeded its authority by granting certiorari to review whether Williams' expert met those qualifications. Florida courts have permitted certiorari review solely to ensure that the procedural aspects of the presuit requirements are met. This Court had further found in Williams v. Oken that the defendant therein: "...was afforded the process guaranteed by statute because he received advance notice and an opportunity to examine Williams' claim before the filing of the lawsuit. Thus, a deprivation of the process did not occur. Under 7

11 these cases, certiorari would be inappropriate because the justification for issuing a writ of certiorari is diminished greatly if the parties have been afforded the essential process guaranteed by law and the judge has merely made a mistake in an order or ruling entered in the course of the proceeding. In the instant case, there has been no finding below that the procedural statutory requirements have not been fulfilled. There is no finding that counsel for the patient has not acted in good faith or has violated the good faith certificate in the Complaint for Damages (which stated that "undersigned counsel certifies that a reasonable investigation, permitted by the circumstances, has occurred and there is corroboration which gives rise to a good faith belief that grounds exist for this action.") system as There is no finding that the claim should be eliminated from our court frivolous. There is no finding that the doctor was not on notice or was hampered in his investigation or was harmed in any way. Yet, despite a record of substantial and costly efforts to go through the statutory process just to allow the filing of a lawsuit, this patient drastically finds himself out of court and denied his constitutionally guaranteed access to court because the Second District has interpreted and weighed the merits of the presuit affidavit and the Petitioners' presuit investigation in accordance with the Respondents' assertions and has disregarded the efforts of the lower court judge who presided over a live (recorded) hearing and then considered the matter again on rehearing. Analysis of the Second District's decision at issue and the transcript of the Oral Argument before the Second District will reflect that the appellate court was indeed weighing the 8

12 evidence. The Second District's has stated in its decision that "...we have not identified any authority holding that a medical negligence plaintiffs attorney will suffice as a "medical expert..." Petitioners have never asserted at any point that counsel is a medical expert but, in addition to the considering the presuit affidavit, the lower court judge heard and accepted counsel's proffer at a hearing as to the investigative efforts of Petitioners. Petitioners have cited below to Wolfsen v. Appelgate, 619 So.2d 1050 (Fla.App.lst 1993), where, concerning issues involving the sufficiency of presuit affidavits and whether a reasonable investigation was performed, the First District accepted that patient's attorney proffer "...in some detail regarding the nature and extent of his investigation..." including introducing medical documents and a publication he had reviewed. The Wolfsen court stated: The procedure for judicial review set out in section cannot be converted into some type of summary proceeding to test the sufficiency, legally or factually, of medical negligence claims. Its only purpose is to ensure that a claim or denial has been preceded by a "reasonable investigation," and that it "rests on a reasonable basis"- i.e.,"to eliminate frivolous claims and defenses." In St. Mary's Hospital v. Bell, 785 So.2d 1261 (Fla.App.4th 2001)(cited and approved in Williams v. Oken), the Fourth District held that certiorari review was unavailable to review evidence regarding the sufficiency of estate's counsel's presuit investigation of the estate's claims of medical malpractice. After the January 5, 2012 hearing, the lower court judge did his own research and incorporated same into his first order denying the motion to dismiss 9

13 action by citing Williams v. Powers, 619 So.2d 980 (Fla.App.5th 1993)(failure to provide adequate verified written medical expert opinion is not "dispositive" in dealing with medical malpractice defendant's "response" rejecting claim under Medical Malpractice Act...). The Second District in the instant case was apparently also looking for some definitive presuit statement of negligence or certain magic words where the statutes and case law do not call for same. See, Tracey v. Barrett, 550 So.2d 558 (Fla.App2d 1989). Florida Statute (1), states:...for purposes of this section, good faith may be shown to exist if the claimant or his or her counsel has received a written opinion, which shall not be subject to discovery by an opposing party, of an expert as defined in s that there appears to be evidence of medical negligence... This is consistent several cases in this area. In Jackson v. Morillo, 976 So.2d 1125 (Fla.App.5th 2007), the court held: "...pre-suit screening requirements are broadly construed to favor access to the courts and do not require that the corroborating expert's affidavit give notice of every possible instance of medical negligence...the medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict a citizen's constitutionally guaranteed access to the courts, while at the same time screening out frivolous lawsuits and defenses)." Accord, Davis v. Orlando Regional Medical Center, 654 So.2d 664 (Fla.App.5th 1995). In conclusion, Petitioners request that jurisdiction be accepted so this matter may be fully brief and irreparable harm be prevented. 10

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served by this 7th day of January, 2013 to Mark Hicks, Esquire, HICKS PORTER, 799 Brickell Avenue, 9th Floor, Miami, Florida [mhicks@mhickslaw.com] and Ross L. Fogleman, III, Esquire, Dickinson & Gibbons, P.A., 401 Cattlemen Road, Suite 300, Sarasota, Florida [rfogleman@dglawyers.com]. Louis haler, Esquire The Florida Bar No LOUIS THALER, P.A. Two Alhambra Plaza Penthouse II - Suite Coral Gables, Florida (305) (305) Fax