Florida/Georgia Personal Injury & Workers Compensation

...idered adequate and appropriate on the part of skilled nursing facilities." [Docket No. 3 ¶ 5, 11]. However, the Florida legislature deleted this pre-suit requirement in § 400.023 and substituted it for a more liberal notice provision contained in § 400.0233(2) of the Florida Statutes....

...nnounced in Hanna, when the state law at issue directly conflicts with a Federal Rule of Civil Procedure, "the court is instructed to apply the Federal rule." Hanna v. Plumer, 85 S.Ct. at 1144. Indeed, even if the pre-suit requirements of Fla. Stat. § 400.0233(2) *1355 were characterized as substantive in nature, rather than procedural, they would be trumped by the Federal Rules of Civil Procedure....

...ederal procedural rule, then the state law is procedural for Erie/Hanna purposes regardless of how it may be characterized for other purposes."). Still, the overall intent of the Florida legislature in requiring the pre-suit conditions in Fla. Stat. § 400.0233(2), the thrust of which appears to be a desire for a reasonable investigation giving rise to a good-faith belief that grounds exist for the claim so as to avoid frivolous lawsuits, has been satisfied by Plaintiff Thompson....

...s risk manager and administrator, notifications of the occurrence of an adverse incident, and adverse incident reports from the facility are confidential and exempt from § 119.07(1) and § 24(a), Art. I of the State Constitution." [1] Additionally, section 400.0233(5) provides that "[n]o statement, discussion, written document, report, or other work product generated by presuit claims evaluation procedures under this section is discoverable or admissible in any civil action for any purpose by t...

...f 90 days after notice is mailed to any prospective defendant," during which period "the prospective defendant or the defendant's insurer or self-insurer shall conduct a review . . . to determine the liability of the defendant" (emphasis added)); § 400.0233(2), (3)(a), Fla....

...alf of his mother. After Keystone failed to respond to his requests for certain documents, Garcia filed suit. Keystone filed a motion to dismiss the lawsuit, arguing that Garcia had not met the statutory condition precedent of presuit mediation. See § 400.0233(11), Fla....

...rror will not be correctable in a post-judgment appeal. [1] See Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000). *1109 Keystone argues that the trial court's denial of its motion to dismiss departed from the essential requirements of the law because section 400.0233(11) of Florida's nursing home statute provides that the parties "shall" meet in mediation before the claimant files suit. The statute reads, in relevant part, as follows: 400.0233 Presuit notice; investigation; notification of violation of resident's rights or alleged negligence; claims evaluation procedure; informal discovery; review; settlement offer; mediation....

...shall meet in mediation to discuss the issues of liability and damages.... At the conclusion of mediation, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit. § 400.0233(11), Fla....

...(2010). Although subsection (11) contains the mandatory language "shall," it does not specify which party must initiate mediation. Additionally, subsection (11) does not expressly state that mediation is a condition precedent to filing suit. In contrast, section 400.0233 contains other subsections that do set forth conditions that are clearly labeled as conditions precedent to filing suit. For example, subsection (2) requires a claimant to notify each prospective defendant of asserted violations of the statute before filing suit. See § 400.0233(2), Fla. Stat. (2010). Similarly, subsection (3) requires the claimant to wait 75 days after the subsection (2) notice is mailed before filing suit. See § 400.0233(3)(a), Fla....

...them and Arch Creek Nursing Home, Inc. ("Arch Creek Nursing Home"), by Bruce Perpall, as personal representative of the estate of Roseann Perpall ("Respondent"), based upon the Respondent's failure to comply with the pre-suit notice requirements of section 400.0233, Florida Statutes (2004). Roseann Perpall ("Mrs. Perpall"), a resident of Arch Creek Nursing Home, died while under the nursing home's care. The Respondent, in accordance with section 400.0233(2), Florida Statutes, timely served Arch Creek Nursing Home with pre-suit notice of his intent to initiate a lawsuit against it for the wrongful death of Mrs....

...Perpall's nursing home resident's rights and negligence under chapter 400 of the Florida Statutes. The Petitioners moved to dismiss the complaint, arguing that the Respondent, by notifying only Arch Creek Nursing Home of the intended lawsuit, failed to comply with the mandatory pre-suit notice requirement of section 400.0233(2), which requires that the Respondent "notify each prospective defendant by certified mail, return receipt requested, of an asserted violation of a resident's rights provided in s....

...ch Plaza, Inc., and the other three-named defendants are all owned by the same person, Russell Galbut, have the same registered agent, and have the same registered principal place of business. The Respondent asserted that pre-suit notice pursuant to section 400.0233(2) of the nursing home statute is analogous to section 766.106(2), Florida Statutes, the medical malpractice pre-suit notice provision, and therefore, Florida Rule of Civil Procedure 1.650, which specifies that medical malpractice pr...

...The trial court, in denying the Petitioners' motion to dismiss, agreed with the Respondent's reasoning, and concluded that since *478 [i]t appears that Russell Galbut was the owner of the business formerly known as Arch Creek Nursing Home, Inc., at the time notice was sent pursuant to Florida Statute 400.0233 as well as the Director of each of the named corporations[,] [i]t would appear to this court that each of the business entities was put on notice of the claim....

...otice requirements and on Florida Rule of Civil Procedure 1.650 when it interpreted the pre-suit notice requirements of chapter 400 of the Florida Statutes. We must, therefore, determine whether pre-suit notice to a prospective defendant pursuant to section 400.0233(2), the nursing home statute, should be treated similarly to section 766.106(2), the medical malpractice pre-suit notice statute, which according to Florida Rule of Civil Procedure 1.650, shall operate as notice to any other prospect...

...ed. Ctr., Inc. v. Dingler, 697 So.2d 575, 579 (Fla. 1st DCA 1997)). The pre-suit notice and screening statute should instead be construed in a manner that favors access to the courts. Consequently, in interpreting the pre-suit notice requirements of section 400.0233 we must not unduly restrict the access to the courts guaranteed by the Florida Constitution in carrying out the legislative purpose of screening out frivolous lawsuits. The policy underlying the pre-suit notice requirement of section 400.0233(2), to require the parties to engage in meaningful pre-suit investigation so as to avoid frivolous lawsuits and to encourage early settlement, is the same as the policy considerations of the medical malpractice pre-suit notice provision....

...See Senate Staff Analysis and Economic Impact Statement, Long-Term Care, S.B. 1202, 2001 Sess., at 3 (Fla.2001); see also Thompson v. Kindred Nursing Ctrs. East, LLC, 211 F.Supp.2d 1345, 1355 (M.D.Fla.2002) ("[T]he overall intent of the Florida legislature in requiring the pre-suit conditions in Fla. Stat. § 400.0233(2) . . . appears to be a desire for a reasonable investigation giving rise to a good-faith belief that grounds exist for the claim so as to avoid frivolous lawsuits. . . . "). Both sections 400.0233(2) and 766.106(2), Florida Statutes, are worded substantially the same. Section 400.0233(2), Florida Statutes (2004), states: Prior to filing a claim for a violation of a resident's rights or a claim for negligence, a claimant alleging injury to or the death of a resident shall notify each prospective defendant by certified mail, return receipt requested, of an asserted violation of a resident's rights provided in s. 400.022 or deviation from the standard of care. § 400.0233(2), Fla....

...Section 766.106(2) states that: [P]rior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence. § 766.106(2), Fla. Stat. (2004) (emphasis added). Because both section 400.0233(2), the nursing home pre-suit notice provision, and section 766.106(2), the medical malpractice pre-suit notice provision, (1) are worded substantially the same; (2) have the same purpose and policy considerations, to allow pre-suit...

...'s constitutionally guaranteed access to the courts, we conclude that the trial court properly analogized the medical malpractice pre-suit statutory scheme and Florida Rule of Civil Procedure 1.650 in interpreting the pre-suit notice requirements of section 400.0233. We therefore conclude that pre-suit notice under section 400.0233(2) to any prospective defendant operates as notice to any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice. Consequently, as the Petitioners bear a legal relationship *480 to the defendant receiving pre-suit notice, Arch Creek Nursing Home, the Respondent properly complied with the pre-suit notice requirement of section 400.0233(2) and the Petitioners' motion to dismiss was properly denied....

...hospital. On January 21, 2014, South Dade Nursing requested that Poole’s competency evaluation reports be unsealed. Counsel for South Dade Nursing informed the court that Verser’s estate served a 75-day pre-suit notice of claim on it pursuant to section 400.0233 of the Florida Statutes, and access to the sealed reports was needed to evaluate its potential liability on the claim....