Bystrak v. McLean, 51 Fla. L. Weekly D185 (Fla. 6th DCA Oct. 6, 2025).

The plaintiff sued multiple providers, including the defendant nurse and the facility entities, asserting that after a colonoscopy she was still sedated, was left alone to dress, and then fell at a surgery center.

The court wrote about Florida’s comprehensive statutory scheme which requires a corroborating medical opinion before a plaintiff may file a medical malpractice lawsuit.

In presuit, the plaintiff argued she was excused from providing the verified written medical expert opinion because the facility entities failed to timely comply with her medical records request. That failure meant that her case could proceed against the facility entities, but the trial court also erroneously found that the waiver extended to the defendant nurse also.

The court granted certiorari in part and quashed the order as to the defendant nurse. The court held the statutory waiver language in section 766.204(2) applies to “that party” who fails to comply, and it was error to impose those statutory consequences on the nurse when the Plaintiff never served him with a 766.204(1) records request. The court specifically rejected the attempt to import the “legal relationship” language (from Rule 1.650) into the statute to expand the waiver.