MORRIS, Judge.
Petitioners, Brian C. Rell, D.P.M., and Coastal Orthopedics & Sports Medicine of Southwest Florida, P.A., seek a writ of certiorari to quash an order denying their motion to dismiss the medical malpractice complaint brought by respondents, David McCulla and Margaret McCulla. The trial court denied the motion on the basis that the McCullas had satisfied the presuit notice requirements set forth in section 766.203(2), Florida Statutes (2011). Because we hold that the trial court departed from the essential requirements of the law in making that finding, we grant the petition and quash the order of the trial court.
We have jurisdiction pursuant to Article V, Section 4(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(b)(2)(A). See Williams v. Oken, 62 So.3d 1129, 1132 (Fla.2011); Fassy v. Crowley, 884 So.2d 359, 362-63 (Fla. 2d DCA 2004).
The McCullas' complaint was based on injuries Mr. McCulla suffered to his anterior tendon in his right ankle. Mr. McCulla claimed the injuries were a result of two arthroscopic surgeries and a steroid injection performed by Dr. Rell, a podiatrist, between December 2008 and March 2009.
The McCullas' complaint further alleged that in September 2009, Mr. McCulla sought a second opinion from Dr. James Cottom. An MRI revealed that Mr. McCulla was suffering from a partial tear of the tendon which led Dr. Cottom to perform two more surgeries. Dr. Cottom's operative report indicated that Mr. McCulla developed "a partial tear with tibialis anterior tendon as a result of previous arthroscopic debridement, where the instrumentation openly irritated tibialis anterior tendon." The McCullas also alleged that they learned in March 2011 that
On March 7, 2011, the McCullas served their notice of intent to initiate medical malpractice action on Dr. Rell and Coastal. They attached the verified opinion of Dr. Jeff D. Kopelman. Dr. Kopelman's opinion stated in relevant part:
Dr. Kopelman did not opine whether he believed that Dr. Rell's treatment fell below the standard of care or whether the injury was outside of the foreseeable results of the procedures.
As a result, Dr. Rell and Coastal responded to the notice of intent with a letter to the McCullas notifying them that the corroborating affidavit was deficient. On September 23, 2011, Dr. Kopelman executed an addendum to his original affidavit which stated:
Similar to the original corroborating affidavit, the addendum did not include any opinions stating that there were reasonable grounds to believe Dr. Rell's treatment fell below the standard of care.
After the McCullas filed their complaint, Dr. Rell and Coastal moved to dismiss, arguing that the McCullas failed to comply with the presuit notice requirements of section 766.203(2) because they did not obtain a corroborating opinion from a medical expert attesting that Mr. McCulla's injuries were caused by medical negligence. In denying Dr. Rell and Coastal's motion to dismiss, the trial court held that while "the letters provided by Dr. Kopelman may have been less than adequate to independently support a claim of medical negligence," the letters, in conjunction with the McCullas' counsel's review of the records, were sufficient to satisfy the requirements of section 766.203(2).
Our standard of review in this certiorari proceeding is to determine whether there has been a(1) departure from the essential requirements of the law, (2) resulting in material injury, and (3) which cannot be remedied in a postjudgment appeal. See Williams, 62 So.3d at 1132. Certainly, where a plaintiff in a medical malpractice action has failed to satisfy the presuit notice requirements set
Section 766.203(2) provides that:
The purpose of the medical expert opinion is to "`assure[] the [d]efendants, and the court, that a medical expert has determined that there is justification for the [p]laintiff's claim'"; that is, the purpose is "`not to give notice of [the plaintiff's claim],'" but rather to "`corroborate that the claim is legitimate.'" Davis v. Orlando Reg'l. Med. Ctr., 654 So.2d 664, 665 (Fla. 5th DCA 1995) (quoting Stebilla v. Mussallem, 595 So.2d 136, 139 (Fla. 5th DCA 1992)); see also DeCristo v. Columbia Hosp. Palm Beaches, Ltd., 896 So.2d 909, 911 (Fla. 4th DCA 2005); Shands Teaching Hosp. & Clinics, Inc. v. Barber, 638 So.2d 570, 572 (Fla. 1st DCA 1994). Indeed, this court holds that "`[t]he 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.'" Ragoonanan ex rel. Ragoonanan v. Assocs. in Obstetrics & Gynecology, 619 So.2d 482, 484 (Fla. 2d DCA 1993) (quoting Duffy v. Brooker, 614 So.2d 539, 545 (Fla. 1st DCA 1993)). Thus, the issue here is whether the McCullas' corroborating affidavit sufficiently indicated that the McCullas had a legitimate claim for medical malpractice. In other words, did the corroborating affidavit sufficiently set forth that Dr. Rell "was negligent in the care and treatment of" Mr. McCulla and that "[s]uch negligence resulted in injury to" Mr. McCulla?
We have not identified any authority holding that a medical malpractice plaintiff's attorney will suffice as a "medical expert" for purposes of providing an opinion to meet the presuit requirements of section 766.203(2). Thus the fact that the McCullas' attorney reviewed the records himself and had discussions with Mr. McCulla and Dr. Kopelman about whether medical negligence occurred is of no import. Consequently, we are left solely with Dr. Kopelman's corroborating affidavit in determining whether the statutory requirements were met.
The McCullas cite Davis in support of their argument that the presuit notice was
The McCullas also rely on Jackson v. Morillo, 976 So.2d 1125 (Fla. 5th DCA 2007), for the proposition that the presuit notice requirements must be liberally construed. The McCullas contend that a liberal construction of their corroborating affidavit would render it satisfactory under section 766.203(2). However, we find that the McCullas' reliance on Jackson is misplaced. As in Davis, the medical expert in Jackson opined that negligent care and treatment were provided to the patient. Jackson, 976 So.2d at 1129. The issue in that case was whether the corroborating affidavit was sufficient where it failed to name a codefendant despite the fact that the notice of intent apparently did so name the codefendant.
Here, Dr. Rell and Coastal challenge the adequacy of Dr. Kopelman's corroborating affidavit on the basis that it never indicated that Dr. Rell provided negligent care or treatment or that there were reasonable grounds to believe that medical negligence had occurred. We agree that the affidavit in this case did not meet the requirements set forth in section 766.203(2).
In the corroborating affidavit, Dr. Kopelman noted that Dr. Cottom believed the arthroscopic surgery performed by Dr. Rell tore Mr. McCulla's anterior tendon but Dr. Kopelman did not go so far as to opine that such action constituted medical negligence. Further, although Dr. Kopelman opined that there were reasonable grounds to believe that Mr. McCulla's anterior tendon could have been weakened or injured by the steroid shot administered by Dr. Rell, Dr. Kopelman again failed to opine that medical negligence occurred as a result, instead opining that further investigation was required. And even in Dr. Kopelman's addendum to his corroborating affidavit, he opined merely that there were reasonable 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." Thus, there was never any definitive corroboration that the McCullas' claims were legitimate, i.e., that Dr. Rell provided negligent care and treatment to Mr. McCulla and that such negligence resulted
Accordingly, we grant Dr. Rell and Coastal's petition for writ of certiorari, quash the order of the trial court wherein it determined that the presuit notice requirements of section 766.203(2) were met, and remand for further proceedings.
Petition for writ of certiorari granted; order quashed.
KELLY and BLACK, JJ., Concur.
We note that our court appears to have reached a different conclusion than the Jackson court based on similar facts. In Jackson, the court determined that the presuit notice requirements were met despite the fact that the corroborating affidavit failed to name Dr. Morillo. Jackson, 976 So.2d at 1127-29. But in Bonati v. Allen, 911 So.2d 285 (Fla. 2d DCA 2005), this court held that where a corroborating affidavit indicated that medical negligence had occurred by certain named parties but it failed to name Dr. Bonati, the presuit notice requirements of section 766.203(2) had not been met. Id. at 288.