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

Author:Tammelleo, A. David
Position:Legal Case Briefs for Nurses - Case overview

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...

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