THE COURT ORDERS DISMISSAL OF COUNTS WHERE THE PLAINTIFF’S PRESUIT EXPERT OPINION FAILED TO CORROBORATE ALL OF HIS CLAIMS

Wells v. Quintero, 51 Fla. L. Weekly D162 (Fla. 5th DCA Jan. 23, 2026).

The plaintiff filed a wrongful death medical malpractice case alleging the defendant doctor was negligent in treating a uterine tumor that caused the plaintiff’s wife’s death. In presuit, the plaintiff served a notice of intent that included a corroborating expert opinion that only addressed the defendant doctor’s alleged clinical negligence.

As the case progressed, the plaintiff added new claims, including both an informed consent count as well as a direct negligence count against the defendant group, based on alleged negligence by other employees or agents. The defendants moved to dismiss those new counts, arguing the presuit expert opinion never corroborated them.

The court addressed Florida’s legislative policy relating to medical malpractice, which (allegedly) aims to promote the settlement of meritorious claims at an early stage. The presuit affidavit corroborates the belief that there has been negligence in the care or treatment of the claimant at an early state. The purpose is not just to generally notify a defendant, but to “assure the defendants and the court that that a medical expert has determined that there is justification for the plaintiff’s claim” (citation omitted).

Here, the affidavit contained no opinion about the negligence of the group or its medical staff, meaning that the group defendant received no advanced notice of the claims against it. It also failed to provide notice to the doctor about the claim of the lack of informed consent.

As such, the court reversed the trial court’s denial of the motion to dismiss and directed dismissal of those uncorroborated claims.