Herber v. Martin Memorial Medical Center, Inc.
Herber v. Martin Memorial Medical Center, Inc.
Opinion of the Court
We reverse the trial court’s order dismissing this case for failure to comply with section 766.206, Florida Statutes (2009). In Martin Memorial Medical Center, Inc. v. Herber, 984 So.2d 661, 664 (Fla. 4th DCA 2008), we wrote that “[b]ecause Martin Memorial did not provide [certain] [medical] records within ten days, the statute provides that Ms. Herber was under no obligation to furnish a corroborating affidavit with her notice of intent or any time thereafter.” Under subsection 766.204(2), Florida Statutes (2009), the hospital’s failure to timely provide medical records waived the requirement of a “written opinion” under subsection 766.202(5) and section 766.203, Florida Statutes (2009).
When a trial court must decide whether a claim “rests on a reasonable basis” within the meaning of subsection 766.206(1), “the standard as to whether a reasonable basis has been shown should be similar to the standard that is applied to determine whether a complaint states a cause of action.” Holden v. Bober, 39 So.3d 396, 400 (Fla. 2d DCA 2010). This ruling is reviewed de novo. See Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 (Fla. 4th DCA 2005). The MRSA cluster at the hospital, the timing of Herber’s surgery, and the 2009 affidavit of Dr. Bakken
The reasonableness of an investigation under section 766.206(2) is a factual matter, which is reviewed on appeal for competent, substantial evidence. See Duffy v. Brooker, 614 So.2d 539, 542, 545 (Fla. 1st DCA 1993), abrogated on other grounds by Shands Teaching Hosp. v. Miller, 642 So.2d 48, 49 (Fla. 1st DCA 1994). It appears that the trial court determined that the reasonableness of the investigation had to be determined as of
Reversed and remanded.
. We note that it was appropriate to consider Dr. Bakken’s affidavit on this issue because it was filed before the March, 2010, hearing in this case.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.