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The Week In Torts – Cases from October 27, 2023
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FLORIDA LAW WEEKLY
VOLUME 48, NUMBER 43
CASES FROM THE WEEK OF October 27, 2023
ERROR TO DENY DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO PROPERLY SERVE PRE-SUIT NOTICE, WITHOUT FIRST CONDUCTING AN EVIDENTARY HEARING
Cleveland Clinic v. Daniels, 48 Fla. L. Weekly D2031 (Fla. 4th DCA Oct. 18, 2023):
The plaintiffs sued Cleveland Clinic for the negligent failure to diagnose the wife’s liver cancer. Before filing suit, they served the doctor by certified mail with a notice of intent as required by section 766.106(2), Florida Statutes.
The doctor failed to respond within the ninety-day pre-suit period. As a result, the plaintiffs alleged they complied with chapter 766’s pre-suit notice requirements.
The certified mail return receipt showed the letter was received in October of 2022 and signed for by “Jennifer.” According to the complaint, the notice of intent was addressed to the same mailing and business address that Cleveland Clinic and its employee, Dr. Daniels, had registered with the Agency for Healthcare Administration and with the Secretary of State.
The doctor moved to dismiss. He asserted that he never received the pre-suit notice as alleged in the complaint. He denied being served, had not signed the certified mail receipt, and denied that he ever received a copy. He claimed that no one authorized for him signed the receipt or accepted the certified mail.
The defendants argued that they were entitled to an evidentiary hearing on the pre-suit notice question.
In 2022, the Florida Legislature amended the applicable statute, section 766.106(2)a, Fla. Stat., to state that proof of service made pursuant to the section and delivered to an address on file with the Department of Health and the Secretary of State creates a rebuttable presumption that service was received by the prospective defendant.
However, if the service is challenged, the trial court must then conduct an evidentiary hearing, and if the prospective defendant proves by the greater weight of the evidence that neither the defendant, nor a person legally related to the defendant at the time of service knew or should have known about the service, then the court must stay the case for pre-suit investigation.
The court conducted a non-evidentiary hearing. It concluded that the notice was clearly sent by certified mail, and that the doctor should have known of the notice because it was served at the hospital and signed for on his behalf.
Because the amended statute went into effect in June 2022, and the plaintiffs did not file their complaint until March 2023, and because the defendants timely challenged service of the pre-suit notice in their first response to the complaint as required by the statute, the trial court departed from the essential requirements of law in failing to follow the statute (and amended rule 1.650(b)(3)) and not conducting an evidentiary hearing.
