Court of Appeal Dismisses Med-Mal Suit in Favor of GrayRobinson Client

FORT LAUDERDALE, Fla. (November 12, 2009) -- The Fourth District Court of Appeal recently affirmed the dismissal of the medical malpractice lawsuit Derespina v. North Broward Hospital District d/b/a Coral Springs Medical Center, where GrayRobinson represented the North Broward Hospital District (NBHD).

In October 2005, the plaintiff, Eugenia Derespina underwent elective total hip replacement surgery at Coral Springs Medical Center. After surgery, the nursing staff applied an anti-embolism stocking to Derespina's thigh per the doctor's orders. Derespina claimed the stocking was too small and caused blistering and eventual scarring. She sent a notice of intent to initiate litigation to the NBHD along with a corroborating affidavit of a medical expert. The expert who reviewed the records and signed the affidavit was Derespina's sister, a nurse with 46 years experience. The expert was also the mother of Derespina's lawyer.

Shortly after Derespina filed suit in November 2007, Gray Robinson attorneys filed a motion on behalf of the NBHD to strike Derespina's pleadings for failure to conduct a "reasonable" investigation pursuant to Florida's presuit requirements, Fla. Stat. § 766.201 - § 766.212. The trial court conducted an evidentiary hearing and determined that Derespina's expert was inherently biased. The trial court also noted that Derespina's expert did not seek compensation for the time she spent reviewing her sister's case, which is something an independent expert would have done. On the basis of these facts, the trial court dismissed the malpractice action as non-compliant with the reasonable investigation requirements of Florida law.

GrayRobinson, P.A. attorneys Daniel Alter, Roland E. Schwartz and Jeffrey T. Kuntz represented the NBHD on appeal by Derespina. The Fourth District Court of Appeal upheld the decision to strike Derespina's pleadings while reinforcing the importance of the pre-suit investigation procedure that claimants must follow before a medical negligence claim may be brought in court. "The whole purpose of the reasonable investigation requirement in Florida is to lend assurance that a medical negligence claim has been properly screened," said Alter. "The system would be rendered meaningless if medical malpractice claimants could simply call upon their sisters, sons or nephews to serve up corroborating affidavits."

The Fourth District Court of Appeal held as follows: "Based upon the findings of the trial court after an evidentiary hearing, the trial court's conclusion that the investigation of malpractice conducted by the plaintiff did not constitute the reasonable investigation contemplated by the statute was not an abuse of its discretion." (Emphasis in original.)

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