IN THE SUPREME COURT OF THE STATE OF FLORIDA . L _

CASE NO. SC12-2598 ¤ AUG 2 l A 10: 27

2DCA CASE NO. 2D12-793

L.T. CASE NO. 41-2011-CA-06610

DAVID McCULLA and MARGARETMcCULLA, Wife,

BY

Petitioners.vs.

BRIAN C. RELL, D.P.M. and COASTALORTHOPEDICS & SPORTS MEDICINEOF SOUTHWEST FLORIDA, P.A.

Respondents.

PETITIONERS' BRIEF ON THE MERITS

Louis Thaler, EsquireFlorida Bar No. 360627LOUIS THALER, P.A.Two Alhambra PlazaPenthouse II - Suite CCoral Gables, Florida 33134(305) 446-0100(305) 445-7750 - Faxthalerlaw@bellsouth.net

TABLEOFCONTENTS

Table of Citations ii

Statement Regarding Record v

Statement of Case and Facts 1

Summary of Argument 8

Argument

I. WHETHER THE DISTRICT COURT ERRED OREXCEEDED ITS CONSTITUTIONAL AUTHORITYIN REVIEWING THE TRIAL COURT'S ORDER ONCERTIORARI 9

II. WHETHER THE DISTRICT COURT ERRED ININTERPRETING THE REQUIREMENTS OFFLORIDA STATUTE CHAPTER 766 AND THEPURPOSES OF SAME 22

Conclusion 29

Certificate of Service 30

Certificate of Compliance with Font Requirements 30

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TABLE OF CITATIONSCASES: PAGE(S)

Broward Cnty. v. G.B.V. Int'l, Ltd., 12787 So. 2d 838 (Fla. 2001)

Central Florida Regional Hospital v. Hill, 26721 So.2d 404 (Fla. 5th DCA 1998)

Davis v. Orlando Regional Medical Center, 21, 24654 So. 2d 664 (Fla. 5th DCA 1995)

Globe Newspaper Co. v. King, 17, 18, 19658 So.2d 518 (Fla. 1995)

Jackson v. Morillo, 20976 So. 2d 1125 (Fla. 5th DCA 2007)

Karr v. Sellers, 25668 So. 2d 629 (Fla. 4th DCA 1996)

Kukral v. Mekras, 21679 So. 2d 278 (Fla.1996)

Michael v. Medical Staffing Network, Inc., 26947 So. 2d 614 (Fla. 3d DCA 2007)

Ortega v. Silva, 17712 So. 2d 1148 (Fla. 4th DCA 1998)

Patry v. Capps, 11, 21633 So. 2d 9 (Fla.1994)

Rell v. McCulla, 6, 8, 11, 16, 25101 So. 3d 878 (Fla. 2d DCA 2012)

Royle v.Florida Hospital-East Orlando, 5679 So.2d 1209 (Fla. 5th DCA 1996)

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Shands Teaching Hospital & Clinics, v. Barber, 10, 23638 So.2d 570 (Fla. 1st DCA 1994)

Simeon, Inc. v. Cox, 17671 So.2d 158 (Fla. 1996)

Stebilla v. Mussallem, 11595 So.2d 136 (Fla. 5th DCA 1992)

St. Mary's Hospital v. Bell, 8, 19, 17785 So. 2d 1261 (Fla. 4th DCA 2001)

Stock Development v. Ulrich, 187 So.3d 582 (Fla. 2d DCA 2009)

Tracey v. Barrett, 11, 20550 So. 2d 558 (Fla. 2d DCA 1989)

Weinstock v. Groth, 21629 So.2d 835 (Fla.1993)

Williams v. Oken, 8, 9, 11, 18, 19,62 So.3d 1129 (Fla. 2011) 22, 27, 28

Williams v. Powers,619 So.2d 980 (Fla. 5th DCA 1993) 20, 24

Wolfsen v. Appelgate, 11, 16, 17619 So.2d 1050 (Fla. 1st DCA 1993)

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FLORIDA STATUTES:

766 1, 23

766.102 14, 22, 27

766.104(1) 14, 20, 27

766.106 10

766.201-212 11

766. 202(2)(a)(1) 22

766.202(6) 10

766.203(2) 10

766.206(2) 26

766.206(4) 26

768.72 17, 18

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STATEMENT REGARDING RECORD

The record before the Second District Court of Appeal is due September 16,

2013 which is after this brief is due. Accordingly, an Appendix has been prepared

and referred to in this brief. The Appendix contains alphabetical tabs and will be

referred to as "App._" with the corresponding tab identified. The only transcript

of the only hearing before the lower trial court which occurred on January 5, 2012

is App.Q. The docket from the lower trial court is App.R, from the Second District

Court of Appeal is App.S and from this Court is App.T.

Emphasis by underline and boldface are added throughout.

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STATEMENT OF THE FACTS AND CASE

This case is a medical malpractice action brought by David McCulla (the

patient) and his wife Margaret McCulla, plaintiffs in the Manatee County Circuit

Court and respondents in the Second District Court of Appeal (hereinafter

"Petitioners") against Brian C. Rell, D.P.M. and his employer Coastal Orthopedics

& Sports Medicine of Southwest Florida, P.A., defendants in the trial court and

petitioners in the lower appellate court (hereinafter "Respondents"). The essential

facts alleged arise out of two surgeries performed by Dr. Rell on the foot and ankle

of the patient which resulted in permanent and significant damage to the involved

anatomy. (App.A, J).

On March 7, 2001, Petitioners, through undersigned counsel, sent a certified

mailed Notice of Intent to Sue Letter to Respondents to commence the 90-day

presuit screening process under Florida Statute Chapter 766. (App.A). Attached to

this letter was the Verified Opinion of Medical Expert Jeff Kopelman, DPM

executed before a notary on March 4, 2011 and Dr. Kopelman's Curriculum Vitae.

(App.A). Also attached were copies of the voluminous records compiled by

Petitioners to that date (omitted, but see, App.M for partial records). The letter

contained nine requests for discoverable presuit information (App.A). Dr.

Kopelman's Verified (sworn and written) Opinion of March 4, 2011 stated:

1

My name is Jeff Kopelman. I graduated from Barry University School of

Podiatry in 1990 and was Valedictorian of my class. I did a two yearsurgical residency in Plantation, Florida and have been in practice forapproximately 20 years. I am board certified in podiatric surgery. I was thefirst podiatrist with surgical privileges at Bayfront Hospital and St.Anthony's Hospital and the first head of podiatry at St. Anthony's Hospitalin St. Petersburg. I have worked as a podiatric consultant for All FloridaOrthopaedics for approximately 15 years. I am familiar with the standardsor care and prevailing professional practices for podiatric surgeons in theState of Florida.

My presuit expert opinions are based on the records presented to me onpatient David E. McCulla from Brian C. Rell, D.P.M. of Coastal Orthopedics& Sports Medicine and James M. Cottom of Sarasota Orthopedic Associates.

Mr. McCulla was first seen by Dr. Rell on November 5, 2008. Thepatient had a previous medical history of multiple previous anklesprains and previous ankle surgery on the right foot and ankle. An MRI onNovember 11, 2008 showed multiple bony fragments in the patient's rightankle as well as possible avascular necrosis of the talus and chronic medialand lateral ligamentous injury.

On December 12, 2008 and January 28, 2009, the patient underwentarthroscopic surgeries performed by Dr. Rell at the Surgery Center at PointeWest. The patient would be last seen by Dr. Rell in follow-up on April 22,2009.

Mr. MCulla sought a second opinion from Dr. Cottom on September 3,2009. Dr. Cottom's assessment that date included a "...possible partial teartibialis tendon..." An MRI of the right ankle on September 9, 2009 revealeda "...hypertrophic partial tear of the anterior tibialis tendon..." Dr. Cottomwould perform surgery on the patient's right ankle on May 12, 2010 andJune 22, 2010.

According to the records, Dr. Cottom felt that the medial anterior port of thearthroscopic surgery by Dr. Rell partially tore the tibialis anterior tendon.

2

Dr. Cottom's Operative Report of May 12, 2010 states "...in addition, hedid develop a partial tear with tibialis anterior tendon as a result of previousarthroscopic debridement, where the instrumentation openly irritated tibialisanterior tendon..."

Additionally, going back to Dr. Rell's records, on March 16, 2009, whichcoincidentally state that the tibialis anterior tendon was tested and had astrength of 5/5, Dr. Rell injected .25% of dexamethasone phosphate intosome scar buildup along the medial anterior portal incision site.The concernshere, which would warrant further investigation, are (a) did the steroidgo into the tendon and possibly weaken it and/or (b) predispose it totearing? The evaluation of these concerns warrants further investigationespecially because the degree of previous infection is difficult to determinedue to the lack of detail in the notes.

In my expert opinion, based on the records provided, there are reasonablegrounds that the patient's tibialis anterior tendon could have been weakenedor injured by the steroid shot given by Dr. Rell. This is notwithstanding thatwe are dealing with a patient with previous ankle medical history, as well asfive surgeries on his foot, and therefore with increases in his risks ofscarring, arthritis and possible future foot problems.

I certify that I have never had any opinion disqualified by any court underpenalty of perjury. I declare that I have read the foregoing and the factsstated are true to the best of my knowledge and personal belief and arestated within a reasonable degree ofpodiatric medical certainty.

I recognize the purpose of this Verified Opinion is to allow for theinitiation of further investigation and a presuit screening process underFlorida Law and accordingly I reserve the right to amend these opinions ifany new or different information warrants same.

(App.A, J).

Thereafter, a full presuit screening occurred between the parties including

exchanges of information and data, HIPAA authorizations, records, diagnostic

3

films, etc. (App.A, B, C, D, E, F). By letter dated March 22, 2011, Respondents'

counsel established a presuit expiration date of June 16, 2011, which was not

contested. (App.C).

On June 13, 2011, three days before the agreed end of the 90-day presuit

period, Respondents served a letter first raising a challenge to Dr. Kopelman's

verified opinion. (App.G) to which Petitioners responded to on June 16, 2011.

(App.H). On June 16, 2011, Respondents' insurer, FPIC, served a letter denying

the claim with a written opinion of their presuit expert Michael Galina, DPM,

dated June 1, 2011. (App.I).

Notably, Respondents' presuit expert Dr. Galina found that "the conclusions

by Dr. Cottom and Dr. Kopelman were unfounded, unprofessional and were not

based on any factual information." Dr. Cottom is a non-party, non-retained

subsequent treating surgeon who cared for and operated on Petitioner after

Respondent's two surgeries. Dr. Kopelman is Petitioners' presuit expert. (App.I, L,

M).

On October 4, 2011, Petitioners timely filed suit. (App.J) Attached to the

Complaint for Damages were the initial Verified Opinion and an Addendum to the

Verified Opinion of Jeff D. Kopelman dated September 23, 2011 which stated:

To clarify and supplement my Verified Opinion dated March 4, 2011, Iwould state that, based on the records reviewed, there exist reasonable

corroborating grounds to further investigate a claim of medical negligenceagainst Brian Rell, DPM and the causation of damage to patient DavidMcCulla's anterior tibialis tendon. I continue to reserve the right to modifymy opinions based on additional information.

(App.J; Exhibit 3 to Complaint)

On October 27, 2011, Respondents served a Motion to Dismiss Action.

(App.K).

On November 9, 2011, Respondents served an "Amendment to Complaint

by Interlineation" (App.L, Exhibit 5 to Complaint) which addressed another issue

raised by Respondents that the Addendum of September 23, 2011 by Dr.

Kopelman set forth above was not notarized. Even though notarization is not

required and is not an issue in this case. See Royle v. Florida Hospital-East

Orlando, 679 So.2d 1209 (Fla. 5th DCA1996)(statutes requiring that a patient

provide a verified written medical expert opinion in medical malpractice action do

not require notarization of medical opinion). Dr. Kopelman again declared that his

initial Verified Opinion and Addendum were true and accurate under oath. (App.L,

Exhibit 5 to Complaint).

The Motion to Dismiss Action was specially set for hearing before lower

Circuit Court Judge Peter A. Dubensky on January 5, 2012. (App.Q). On

December 30, 2011, Petitioners served a "Response to Motion to Dismiss Action"

5

attaching certain medical records reviewed by Petitioners' expert and counsel.

(App.M)

On January 5, 2012, the lower court judge conducted a specially set hearing

on the Motion to Dismiss Action. (App.Q). On January 17, 2012, the lower court

judge entered its own 4-page Order denying the Motion to Dismiss Action.

(App.N)

On February 16, 2012, Respondents filed the Petition for Writ of Certiorari

with the Second District Court of Appeal (App.S).

On February 17, 2012, Respondents served a Motion for Reconsideration of

Motion to Dismiss Action and a Memorandum of Law in the lower court. (App.0).

On February 22, 2012, without hearing or even a response from Petitioners,

the lower court judge denied the Respondents' Motion for Reconsideration of

Motion to Dismiss Action. (App.P).

The case was fully briefed in the Second District Court of Appeal and Oral

Argument occurred August 1, 2012. (App.S).

On October 12, 2012, the Second District Court of Appeal rendered its

decision in this case. Rell v. McCulla, 101 So. 3d 878 (Fla. 2d DCA

2012)(App.U). On October 24, 2012, Petitioners filed a Motion for Rehearing

(App.S) which was denied on November 26, 2012. (App.S).

6

On December 12, 2012, Petitioners filed a Notice to Invoke Discretionary

Jurisdiction with this Court and the jurisdictional issues were fully brief. (App.T).

This Honorable Court accepted jurisdiction of this case on July 17, 2013 (App.T).

7

SUMMARY OF ARGUMENT

The issues presented by the instant appeal involve the granting by the

Second District Court of Appeal of Respondents' (petitioners below) Petition for

Writ of Certiorari and the quashing of the order of the lower court judge denying

Respondents' motion to dismiss action and denying Respondents' motion for

rehearing of the first order. The Respondents' motion to dismiss action had

challenged the interpretation of the presuit verified opinion of Petitioners' presuit

medical (podiatrist) expert. The opinion issued by the Second District expressly

and directly conflicts with the decision of this Court in Williams v. Oken, 62 So.

3d 1129 (Fla. 2011). In Williams, this Court clearly set out the limitations of

certiorari review jurisdiction. Despite this limitation to certiorari review of only

the procedural aspects of the presuit requirement, the Second District went beyond

its mandate and instead improperly reweighed the evidence presented as to

compliance with the statutory requirements including judging the merits of the

presuit affidavit and counsel's good faith involvement. See Williams, 62 So. 3d at

1135; St. Mary's Hospital v. Bell, 785 So.2d 1261, 1262 (Fla. 4th DCA 2001).

Rell v. McCulla stands now as a case to be cited by defendants to attack by

certiorari review the substance of presuit screening affidavits in medical

malpractice cases and that does not appear a result this Court intended in Williams.

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ARGUMENT

I. WHETHER THE DISTRICT COURT ERRED OR EXCEEDED ITSCONSTITUTIONAL AUTHORITY IN REVIEWING THE TRIALCOURT'S ORDER ON CERTIORARI

The issue, as set forth above, is the same exact question raised and then

answered by this Court in Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011). In

resolving this question, this Court determined that the grant of certiorari by the

First District was inappropriate. Accordingly, this Court quashed the First

District's decision in Oken v. Williams, 23 So.3d 140 (Fla.lst DCA 2009) and

approved the Fourth District's decision in St. Mary's Hospital v. Bell, 785 So.2d

1261 (Fla.4th DCA 2001). Williams, 62 So.3d at 1137. The basis for the

conclusion reached by this Court in Williams is applicable to this case and should

result in a determination in favor of the Petitioners.

The record demonstrates that three days prior to the agreed end of the 90-

day presuit screening process and after the exchange of information and documents

in this medical (podiatric) malpractice case, the Respondents first challenged the

merits of the sworn, notarized, verified, written opinion of the patient's presuit

expert, Jeff Kopelman, DPM, a board-certified podiatrist, whose actual

qualifications are not in question and were not questioned below. As demonstrated

9

in the Statement of Case and Facts, Dr. Kopelman would review the matter on two

additional occasions beyond his initial verified opinion. (App.A, J, L).

On January 17, 2012, the trial court entered an order denying the

Respondent's motion to dismiss, and accepting Dr. Kopelman's verified opinion

and Petitioners' counsel's proffer as to counsel's efforts in conducting the presuit

investigation. (App.N). This determination was correct and should not be subject

to review in a petition for certiorari.

The presuit investigation statutory requirements are set out in Section

766.203(2), Florida Statutes, as follows:

(2) PRESUIT INVESTIGATION BY CLAIMANT-

Prior to issuing notification of intent to initiate medical negligence litigationpursuant to s. 766.106, the claimant shall conduct an investigation toascertain that there are reasonable grounds to believe that:

(a) Any named defendant in the litigation was negligent in the care ortreatment of the claimant; and

(b) Such negligence resulted in injury to the claimant.

Corroboration of reasonable grounds to initiate medical negligence litigationshall be provided by the claimant's submission of a verified medical expertopinion from a medical expert as defined in s. 766.202(6), at the time thenotice of intent to initiate litigation is mailed, which statement shallcorroborate reasonable grounds to support the claim of medical negligence.

As held in the case of Shands Teaching Hospital & Clinics, v. Barber, 638

10

So.2d 570 (Fla. l®' DCA 1994):

The provisions of sections 766.201-.212, Florida Statutes, are not to beallowed to impinge upon plaintiffs' right of access to the courts and mustbe construed as imposing upon plaintiffs only a reasonable and limited dutybefore allowing them to file a suit. See Wolfsen v. Applegate, 619 So.2d1050 (Fla. 1st DCA 1993); Patry v. Capps, 633 So.2d 9 (Fla.1994). Seealso Tracey v. Barrett, 550 So.2d 558 (Fla. 2d DCA 1989) (presuit noticestatute does not require any particular form for the notice or any "magicwords"; any manner of written notice which describes the occurrence of theunderlying claim should suffice). The purpose of a notice of intent to sue isto give the defendant notice of the incident in order to allow investigationof the matter and promote presuit settlement of the claim; the expertcorroborative opinion is designed to prevent the filing of baselesslitigation. Stebilla v. Mussallem, 595 So.2d 136 (Fla. 5th DCA), rev.denied, 604 So.2d 487 (Fla.1992). In the instant case, respondent's notice ofintent and corroborating affidavit sufficiently identified the underlyingincident giving rise to the claim of negligence, to wit, the perforation of heresophagus which occurred during her hospitalization, as well as the allegedresulting problems arising therefrom, thereby fulfilling the purpose of thestatutory notice provision.

This Court in Williams v. Oken, 62 So.3d 1129 (Fla. 2011), mandated that

certiorari jurisdiction be limited the rarest of circumstances where three elements

are established: (1) a departure from the essential requirements of the law, (2)

resulting in material injury for the remainder of the case (3) that cannot be

corrected on postjudgment appeal. Id. at 1132. As noted in Williams, "[c]ertiorari

review is intended to fill the interstices between direct appeal and the other

prerogative writs and allow a court to reach down and halt a miscarriage ofjustice

11

where no other remedy exists; it was never intended to redress mere legal

error." Williams, 62 So. 3d at 1133 (quoting Broward Cnty. v. G.B.V. Int'l, Ltd.,

787 So. 2d 838, 842 (Fla. 2001) (emphasis added).

In Williams, the issue before this Court was whether the presuit expert was

qualified to give an opinion in a medical malpractice case. This Court determined:

the First District exceeded its authority by granting certiorari to reviewwhether Williams' expert met those qualifications. Florida courts havepermitted certiorari review solely to ensure that the procedural aspectsof the presuit requirements are met."

Id. at 1137.

This Court further found in Williams that therein:

Dr. Oken was afforded the process guaranteed by statute because hereceived advance notice and an opportunity to examine Williams' claimbefore the filing of the lawsuit. Thus, a deprivation of the process did notoccur. Under these cases, certiorari would be inappropriate because thejustification for issuing a writ of certiorari is diminished greatly if the partieshave been afforded the essential process guaranteed by law and the judgehas merely made a mistake in an order or ruling entered in the course of theproceeding.

Id. at 1136-1137.

In this case, there has been no finding below that the procedural statutory

requirements have not been fulfilled. There is no finding that counsel for the patient

has not acted in good faith or has violated the good faith certificate in the Complaint

for Damages (which stated that "undersigned counsel certifies that a reasonable

12

investigation, permitted by the circumstances, has occurred and there is

corroboration which gives rise to a good faith belief that grounds exist for this

action."). (App.J, Paragraph 23). There is no finding that the claim should be

eliminated from the court system as frivolous or baseless. There is no finding that

the doctor was not on notice or was hampered in his investigation or was harmed in

any way. Yet, despite a record of substantial and costly efforts to go through the

statutory process just to allow the filing of a lawsuit, the Petitioners drastically find

themselves out of court and denied constitutionally guaranteed access to court

because the Second District has interpreted and weighed the merits of the presuit

affidavit and the Petitioners' presuit investigation in accordance with the

Respondents' assertions and has disregarded the efforts of the lower court judge who

presided over a live (recorded) hearing and then considered the matter again on

rehearing.

Analysis of the Second District's decision at issue (App.U) demonstrates that

this lower appellate court was indeed weighing the evidence. Respectfully, the

Second District should not have even reached the wording of the verified opinions.

For example, the Second District opined that "...there was never any

definitive corroboration that the McCullas' claims were legitimate...," when there

13

is not one appellate case involving presuit where the requirements have been

construed to require a "definitive" opinion by a presuit expert. Indeed, Section

766.104(1), Florida Statutes, states:

...For purposes of this section, good faith may be shown to exist if theclaimant or his or her counsel has received a written opinion, which shallnot be subject to discovery by an opposing party, of an expert asdefined in s.766.102 that there appears to be evidence of medicalnegligence...

Further, the standard and burden at a jury trial does not even call for a

definitive opinion as the standard is "within a reasonable degree of medical

probability" and the burden is the "greater weight of the evidence."

Further, the Second District indicated that because the "...corroborating

affidavit failed to indicate in which manner Dr. Rell deviated from the standard of

care, Dr. Rell and Coastal were prevented from conducting a full evaluation of the

merits of the claim..." Rell, 101 So. 3d at 882. However, in reviewing the initial

affidavit, Dr. Kopelman referred to medical records, which were furnished to

Respondents with the Notice of Intent Letter (App.A), and which described as

follows:

Mr. McCulla sought a second opinion from Dr. Cottom on September 3,2009. Dr. Cottom's assessment that date included a "...possible partial teartibialis tendon..." An MRI of the right ankle on September 9, 2009 revealeda "...hypertrophic partial tear of the anterior tibialis tendon..." Dr. Cottomwould perform surgery on the patient's right ankle on May 12, 2010 andJune 22, 2010.

14

According to the records, Dr. Cottom felt that the medial anterior port of thearthroscopic surgery by Dr. Rell partially tore the tibialis anterior tendon.Dr. Cottom's Operative Report of May 12, 2010 states "...in addition, hedid develop a partial tear with tibialis anterior tendon as a result of previousarthroscopic debridement, where the instrumentation openly irritated tibialisanterior tendon..." (App.A).

In additional Dr. Kopelman stated:

Additionally, going back to Dr. Rell's records, on March 16, 2009, whichcoincidentally state that the tibialis anterior tendon was tested and had astrength of 5/5, Dr. Rell injected .25% of dexamethasone phosphate intosome scar buildup along the medial anterior portal incision site.The concernshere, which would warrant further investigation, are (a) did the steroidgo into the tendon and possibly weaken it and/or (b) predispose it totearing? The evaluation of these concerns warrants further investigationespecially because the degree of previous infection is difficult to determinedue to the lack of detail in the notes. (App.A).

Again, these opinions should not be interpreted by the Second District on

certiorari review not only because it is beyond the scope of such a review, but,

respectfully, they are not podiatrists. Undersigned counsel is also not a podiatrist,

but, in his lay opinion it appears as if Dr. Rell tore the tendon with an arthroscopic

instrument during surgeries to address bone chips having nothing to do with the

damaged tendon and that Dr. Rell documented normal 5/5 strength in that tendon

but then injected it with a steroid that caused damage or further damage.

The Second District's also stated in its decision that "...we have not

identified any authority holding that a medical negligence plaintiffs attorney will

15

suffice as a "medical expert..." Rell, 101 So. 3d at 881. Petitioners have never

asserted at any point that counsel is a medical expert but, in addition to the

considering the presuit affidavit, the lower court judge heard and accepted

counsel's proffer at a hearing as to the investigative efforts of Petitioners (App.N,

P). These efforts included, inter alia, conferencing not only with the client and the

expert (which is how the Second District characterized the efforts, Rell, 101 So.3d

at 880) but also with the subsequent treating surgeon/podiatrist, Dr. Cottom.

(App.Q, Transcript of Hearing of January 5, 2012, Page 16).

The record also reflects that there was no complaint by Respondents about

Dr. Kopelman until 87 days into the fully engaged 90-day presuit period and

Respondents timely denied the claim with their own presuit expert's opinion.

App.G, I).

The proper scope of an inquiry into the presuit process was discussed in

Wolfsen v. Appelgate, 619 So.2d 1050 (Fla. 18' DCA 1993), where, concerning

issues involving the sufficiency of presuit affidavits and whether a reasonable

investigation was performed, the First District accepted that patient's attorney

proffer "...in some detail regarding the nature and extent of his investigation..."

including introducing medical documents and a publication he had reviewed. The

Wolfsen court stated:

16

The procedure for judicial review set out in section 766.206 cannot beconverted into some type of summary proceeding to test the sufficiency,legally or factually, of medical negligence claims. Its only purpose is toensure that a claim or denial has been preceded by a "reasonableinvestigation," and that it "rests on a reasonable basis"- i.e.,"toeliminatefrivolous claims and defenses."

Id. at 1055.

In St. Mary's Hospital v. Bell, 785 So.2d 1261 (Fla. 4th DCA 2001)(cited and

approved in Williams, 62 So.3d at 1135), the Fourth District held that certiorari

review was unavailable to review evidence regarding the sufficiency of estate's

counsel's presuit investigation of the estate's claims of medical malpractice. Id at

1137. In St. Mary's, the court noted:

This case is analogous to Ortega v. Silva, 712 So.2d 1148 (Fla. 4th DCA1998). There we ruled that certiorari was unavailable to review thesufficiency of the evidence to allow a claim for punitive damagesunder section 768.72, Florida Statutes (2000). Id. at 1149. We citedto Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996), for the holding thatcertiorari jurisdiction is appropriate to review whether a trial judge hasconformed with the procedural requirements of section 768.72, but not sobroad as to encompass review of the sufficiency of the evidence to support aclaim for punitive damages when the trial judge has followed the proceduralrequirements of that statute. Id. at 160.

St. Mary 's, 785 So. 2d at 1262.

This Court, in Williams, has also looked to an analogous analysis of

compliance with Florida Statute 768.72 dealing with punitive damages. Williams,

62 So.3d at 1135. In Globe Newspaper Co. v. King, 658 So.2d 518 (Fla. 1995) this

17

Court determined that appellate courts have certiorari jurisdiction to review

whether procedural requirements of statute governing pleading of punitive

damages claims had been followed, but do not have certiorari jurisdiction to review

sufficiency of evidence supporting trial court decision to grant leave to amend

complaint to include punitive damages claim once procedural requirements were

followed. Stock Development v. Ulrich, 7 So.3d 582 (Fla.2d DCA 2009)(applicable

legal standard for certiorari review is to determine whether a court has conducted

an evidentiary inquiry required by Florida Statute 768.72 but not so broad as to

encompass review of sufficiency of the evidence considered in that inquiry).

As also analogized in Williams:

A review of Globe supports Williams' arguments and demonstrates threethings: (1) that a defendant cannot demonstrate material harm required forcertiorari review concerning whether a punitive damages claim is viable, orby analogy, an expert is qualified, because those things do not deprive thedefendant of the statutorily guaranteed process, (2) utilizing certiorari toreview the trial court's findings regarding whether a claim for punitivedamages exists, or, by analogy, whether an expert is qualified amounts toreviewing the sufficiency of the evidence, and (3) that granting a petition forwrit of certiorari to review the sufficiency of the evidence isinappropriate.

Williams, 62 So.3d at 1135.

Petitioners do not mean to repeat what this Court has already set forth in

Williams, but, just about all of that 2011 opinion can be incorporated in this brief.

18

Petitioners read Williams not as some new limitation on certiorari review but rather

an opinion giving clarity and direction to the lower courts that there is a severe

limitation on such review, which it appears some of the lower courts have ignored

or are ignoring. There is no doubt that the Second District did not stick to an

analysis of procedure when its opinion is chock full of facts and interpretations of

same.

As observed by this Court in Williams:

We have explained, "[I]t is extremely rare that erroneous interlocutoryrulings can be corrected by resort to common law certiorari. It is anticipatedthat since the most urgent interlocutory orders are appealable under this rule,there will be very few cases where common law certiorari will providerelief" (citations omitted).

Williams, 62 So.3d at 1134.

Presumably, this Court's pronouncements in Williams and Globe were

intended to give clarity to the constitutional basis of certiorari review and close the

floodgates. The test for invoking certiorari was whether trial judges determined

there was compliance with the procedural requirements of the statutes, which

Respondents have no quarrel with. Regarding substance, the trial courts were to be

afforded deference until plenary appeal, if necessary, based on the myriad of

developments that may occur in a civil case such as discovery, amendment of

pleadings, summary judgment motions, mediation or settlement and in the trial.

19

After the January 5, 2012 hearing, the lower court judge did his own

research and incorporated this into his first order denying the motion to dismiss

action by citing Williams v. Powers, 619 So.2d 980 (Fla. 5th DCA 1993)(failure to

provide adequate verified written medical expert opinion is not "dispositive" in

dealing with medical malpractice defendant's "response" rejecting claim under

Medical Malpractice Act...).

The Second District in this case was apparently also looking for some

definitive presuit statement of negligence or certain magic words, but the statutes

and case law do not call for such a pronouncement. See, Tracey v. Barrett, 550

So.2d 558 (Fla. 2d DCA 1989). Again, Section 766.104(1), Florida Statutes, states

...For purposes of this section, good faith may be shown to exist if theclaimant or his or her counsel has received a written opinion, which shallnot be subject to discovery by an opposing party, of an expert asdefined in s.766.102 that there appears to be evidence of medicalnegligence...

This policy has been utilized to reject a contention that every physician must

be named. See, Jackson v. Morillo, 976 So. 2d 1125, 1128 (Fla. 5th DCA 2007)

("statute's pre-suit screening requirements are broadly construed to favor access to

the courts and do not require that the corroborating expert's affidavit give notice of

every possible instance of medical negligence"). The court in Jackson also noted

the liberal interpretation that must be given to the medical malpractice statutory

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scheme "so as not to unduly restrict a citizen's constitutionally guaranteed access to

the courts, while at the same time screening out frivolous lawsuits and defenses."

Id. at 1128-1129. Accord, Davis v. Orlando Regional Medical Center, 654 So. 2d

664 (Fla. 5th DCA 1995) (finding medical malpractice presuit notice and screening

statute requires expert corroborative opinion in order to prevent filing of baseless

litigation, and not to set forth in protracted detail patient's theory of case; nothing

in statute requires that corroborating expert opinion identify every possible

instance of medical negligence).

"The Florida Supreme Court has emphasized that "when possible the presuit

notice and screening statute should be construed in a manner that favors access to

the courts." Patry v. Capps, 633 So.2d 9, 13 (Fla.1994); see also Weinstock v.

Groth, 629 So.2d 835, 838 (Fla.1993) ("[R]estrictions on access to the courts must

be construed in a manner that favors access.") (citations omitted). This is

particularly so when, as here, defendants have not been prejudiced by plaintiffs

actions. Patry, 633 So.2d at 13." Kukral v. Mekras, 679 So.2d 278 (Fla. 1996).

The Florida Supreme Court held in Kukral that:

We agree with the proposition that the medical malpractice statutoryscheme must be interpreted liberally so as not to unduly restrict aFlorida citizen's constitutionally guaranteed access to the courts, whileat the same time carrying out the legislative policy of screening outfrivolous lawsuits and defenses. In Weinstock v. Groth, 629 So.2d 835(Fla.1993), we stated that "[T]he purpose of the chapter 766 presuit

21

requirements is to alleviate the high cost of medical negligence claimsthrough early determination and prompt resolution of claims, not to denyaccess to the courts to plaintiffs...."

Id. at 284.

II. WHETHER THE DISTRICT COURT ERRED IN INTERPRETINGTHE REQUIREMENTS OF FLORIDA STATUTE CHAPTER 766AND THE PURPOSES OF SAME

As in Williams, this Court should decline to address any further issues.

Williams, 62 So.3d at 1137. However, since the Second District went beyond the

scope of its authority in considering more than the procedure, in an abundance of

caution, Petitioners will address potential further issues in case this Court has any

concems about the substance of Dr. Kopelman's opinions. As set out below, the

opinions do in fact comply with the legislative intent of Chapter 766. The

legislative intent of the presuit requirements are set out in Section

766.201(2)(a)(1), Florida Statutes, as follows:

(a) Presuit investigation shall include:

1. Verifiable requirements that reasonable investigation precede bothmalpractice claims and defenses in order to eliminate frivolous claims anddefenses.

2. Medical corroboration procedures.

Additionally, the opinion satisfies the requirements of the issues examined

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in plenary appeal of the mandatory presuit investigation process. These issues, as

set out below, with the exception of whether the procedures of Chapter 766 were

followed, are in fact not proper for certiorari review.

A. Whether proper notice of the alleged acts was given. This is an

issue for plenary review only and not proper on certiorari review. In any event, it

is a non-issue in this case.

The record clearly alleges at the time of service of the Notice of Intent to

Sue letter that the arthroscopic surgery by Dr. Rell partially tore the tibialis

anterior tendon, which was confirmed by MRI and subsequent treating physician

Dr. James Cottom, who did further surgeries to the area in question. (App.A;

Affidavit of Dr. Kopelman, Paragraphs 5, 6). The parties went through a complete

90-day presuit screening process and no issue has ever been raised that the instant

healthcare providers did not know the allegations. See, Shands Teaching Hosp. and

Clinics, Inc. v. Barber, 638 So. 2d 570 (Fla. l®' DCA 1994)(finding patient

complied with statutory pre-filing notice requirements for medical malpractice

claims where patient's notice of intent and corroborating affidavit sufficiently

identified underlying incident giving rise to claim, namely, perforation of her

esophagus which occurred during hospitalization, as well and alleged resulting

23

problems). See also, Davis v. Orlando Regional Medical Center, 654 So. 2d 664

(Fla. 5th DCA 1995)(nothing in statute requires that corroborating expert opinion

identify every possible instance of medical negligence).

B. Whether the presuit investigation was reasonable. This is also an

issue for plenary review only and not proper on certiorari review. This is another

non-issue in this case. The trial court, which twice held for the Petitioners, after a

full hearing and then on rehearing, and the Second District in the instant case did

not determine that Petitioners presuit investigation was not reasonable. See,

Williams v. Powers, 619 So. 2d 980 (Fla. 5th DCA 1993)(finding remand required

when trial court determined that expert's opinion could trigger duties imposed on

hospital by presuit investigation procedures, since lower court failed to focus on

reasonableness of plaintiffs' investigative efforts, any reasonable basis they

discovered for suit as result of investigations, hospital's reasonable cooperation

with plaintiffs' investigation, and viability of any defense hospital developed). See

also, Karr v. Sellers, 668 So. 2d 629 (Fla. 4th DCA 1996 (finding that failure by

defendant in medical malpractice action to supply corroborative expert affidavit in

rejecting claim is insufficient to grant sanctions; rather, issue is whether there has

been failure to conduct reasonable investigation).

The conclusion reached by the Second District in this case that "patient's

24

attorney's reviewing of medical records and having discussions with patient and

medical expert regarding whether medical negligence occurred was immaterial to a

determination of whether presuit investigation requirements were met in medical

malpractice action," Rell, 101 So.3d at 879, constituted improper weighing by that

appellate court. As an aside, that "finding" was also not fully accurate as counsel

also conferenced with subsequent treating physician James Cottom, DPM, a non-

party, non-retained doctor, who eyeballed the injured area in question at his office,

on MRI and during additional surgeries including surgeries to repair the tendon in

question (App.Q; Transcript of Hearing of January 5, 2012, Page 16).

If evidence is to be weighed, reference may be made to the "opinion" of

Respondents' presuit expert, Dr. Michael Gallina, who opined that "the conclusions

reached by Dr. Cottom and Dr. Kopelman were unfounded, unprofessional and

were not based on any factual information." (App.I). Dr. Cottom is a non-party,

non-retained, subsequent treating surgeon who cared for and operated on Petitioner

after Respondent's two surgeries in question. Dr. Kopelman is Respondents' presuit

expert. It is noteworthy that defense Dr. Gallina interpreted that there were

"conclusions reached" by both Dr. Cottom and Dr. Kopelman. (App.I, L, M).

C. Whether the litigation is baseless or frivolous. In many cases in this

area, an issue arises as to whether the litigation is baseless or frivolous. There is

25

no fimding or suggestion here. This is not an issue for certiorari review. The

corroborating expert opinion requirement for medical negligence litigation is

designed to prevent the filing of baseless litigation and frivolous medical

malpractice claims. Michael v. Medical Staffing Network, Inc., 947 So.2d 614

(Fla. 3d DCA 2007); Central Florida Regional Hospital v. Hill, 721 So. 2d 404

(Fla. 5th DCA 1998).

The fact that the patient herein, according to the medical records quoted by

Dr. Kopelman, after two surgeries by Respondent, had to go to another surgeon to

diagnose a tendon damaged by instrumentation and/or injection by Respondent

(unrelated to the two surgeries performed by Respondent) and to then to have

additional surgeries, should be prima facie evidence of merit. (App.M; Exhibits B,

C)

D. Whether the party was in good faith or bad faith. This is also an

issue for plenary review only and not proper on certiorari review. This is also not

one of those cases. The trial court and the Second District have made no

suggestion that Petitioners or their counsel acted in bad faith or not in good faith

and the record below demonstrates this is also a non-issue. A finding of bad faith

by any court exposes counsel to sanctions (Section 766.206 (2), Florida Statutes)

and referral to The Florida Bar (Sections 766.206(2); 766.206(4), Florida Statutes).

26

As set forth above, Florida Statute 766.104(1), states that....good faith may be

shown to exist if the claimant or his or her counsel has received a written

opinion...of an expert as defined in s.766.102 that there appears to be evidence of

medical negligence...

Appellate counsel is trial counsel. Even setting aside the thousands of

dollars invested just to pay the filing fee in this case, the record demonstrates that

the involved medical records and films and photographs were obtained and

reviewed by counsel, reviewed (ultimately on three occasions) by a (qualified)

medical expert (Dr. Kopelman), that counsel conferenced with the said expert on

multiple occasions, that counsel conferenced with the main subsequent treating

physician (Dr. Cottom) who essentially charted the medical injury caused by Dr.

Rell's procedures (App.Q; Transcript of Hearing of January 5, 2012; Pages 15-17),

that a notice of intent to sue letter in proper format was delivered, that the targeted

healthcare providers received adequate notice of the allegations and that the parties

engaged in an active 90-day presuit screening process. (App.A, B, C, D, E, F).

E. Whether an expert is qualified. This is not an issue here and now

and Petitioners will not belabor that point. Williams v. Oken. See also, Dr.

Kopelman's qualifications set forth in his initial opinion and Curriculum

Vitae.(App.A).

27

F. Whether the procedures of Chapter 766 were followed. This is the

actually the only issue to be considered on certiorari review but may also be

considered on plenary review. Under the mandate from this Court in Williams, it is

clear that an appellate court can only examine whether the statutory procedure was

followed and not do what the Second District did, which was to review extraneous

issues such as the sufficiency of the expert's verified notarized opinion(s) and even

counsel's involvement in the presuit investigation. The statutes were followed to

their letters. (App.A, J). The trial court's double review found the presuit

investigation sufficient. (App.N, P). Petitioners maintain there was no mere legal

error, but, even if there was, now is not the time to address same and under

Williams v. Oken, the Second District was precluded from addressing same.

Respondents will certainly test the merits of the actual case further under the

Rules of Civil Procedure and/or at trial, as was intended by the Florida

Constitutional guarantee of access to the courts when an injured patient, at great

expense, obtains the relevant medical records and films, retains and conferences

with a qualified expert to review same, reasonably investigates a case, conferences

with a key subsequent treating physician, obtains a verified written opinion of a

similar medical expert, sends a notice of intent to sue by certified mail which

contains all of the statutory requirements, provides adequate notice of the

28

allegations, engages the 90-day presuit screening process, exchanges presuit

screening documents and information, reviews a form denial opinion from a

defense expert prepared weeks before the presuit period actually expires (App.I),

and finally gets to pay the $400.00 filing fee and files suit in good faith, as certified

by counsel in the complaint.

The affidavits and supplements submitted by Dr. Kopelman are clear.

Respondents are asserting that magic words outweigh actual substance and intent.

Judge Dubensky twice accepted the Petitioners' presuit efforts. The very fact that

the Respondents and the Second District are challenging what is in these writings

goes beyond certiorari review. Notwithstanding, the substance of these writings

assures that Petitioners have complied with the legislative intent to provide notice,

demonstrate a reasonable presuit investigation, not be frivolous nor baseless, be in

good faith, not be in bad faith, use a qualified similar expert and follow the

procedures set forth in the statutes and follow the case law that has developed.

CONCLUSION

The trial court properly found that the presuit requirements had been met

and the appellate court improperly granted certiorari jurisdiction and determined

that error was present. Accordingly, the opinion of the appellate court should be

REVERSED AND REMANDED.

29

R fully submitted,

Louis Thaler, EsquireThe Florida Bar No. 360627LOUIS THALER, P.A.Two Alhambra PlazaPenthouse II - Suite CCoral Gables, Florida 33134(305) 446-0100(305) 445-7750 - Fax

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was e-filed and served by email this 20th day of August, 2013 to Mark Hicks, Esquire,HICKS PORTER, 799 Brickell Avenue, 9th Floor, Miami, Florida 33131[mhicks@mhickslaw.com] and Ross L. Fogleman, III, Esquire, Dickinson &Gibbons, P.A., 401 Cattlemen Road, Suite 300, Sarasota, Florida 34232[rfogleman@dglawyers.com].

Louis Thaler, EsquireCounsel for Petitioners

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief complies with the font requirements of

Rule 9.210(a)(2), Florida Rules of Appellate Procedure.

Louis Thaler, EsquireCounsel for Petitioners

30

Law Offices of LOUIS THALER, P.A.Two Alhambra PlazaPenthouse II - Suite C

Coral Gables, Florida 33134Member of The Florida Bar (1983) (305) 446-0100 Other Offices: Palm Beach

& New York Bar Association (1984) (305) 445-7750 - FaX & New York City

thalerlaw@bellsouth.net

VIA FEDERAL EXPRESSAIRBILL 801356089964

August 20, 2013 -

Clerk of Court éFlorida Supreme Court r500 South Duval StreetTallahassee, Florida 32399-1927

Re: McCulla v. RellCase No. SC12-2598

Dear Clerk of Court:

Enclosed please find and original and seven (7) copies of Petitioners' Briefon the Merits which already been efiled. The Appendix will follow underseparate cover.

Thank you for your attention. If you have any question, please advise.

Ve truly yours,

Louis Thaler, Esquire

LT/tpi

Enclosures