TRIAL COURT PROPERLY DISMISSED PLAINTIFF’S MEDICAL MALPRACTICE CLAIM WHEN PRESUIT AFFIDAVIT WAS FACTUALLY INCONSISTENT WITH THE PLAINTIFF’S OWN TESTIMONY
Hermoso v. New Life Plastic Surgery, 50 Fla. L. Weekly D1541 (Fla. 3rd DCA July 16, 2025):
The plaintiff brought a medical malpractice action after an allegedly negligent breast lift and implant replacement surgery. In her notice, she alleged that the physician negligently placed her breast implants above the muscle rather than beneath it and then failed to provide adequate postoperative care for any vascular compromise resulting from the implant misplacement.
The plaintiff included an affidavit from her expert who opined that reasonable grounds existed to support a medical negligence claim, because a plastic surgeon exercising reasonable care under similar circumstances would have placed the implants beneath the muscle, and would have provided appropriate post operative care. The defendant submitted an affidavit of an expert who opined that the treatment was appropriate and within the standard of care.
Following the denial of the claim, the plaintiffs filed their medical malpractice case. During her deposition, the plaintiff admitted that the doctor had in fact placed the implants beneath the muscle and not above.
Based on this admission, the defendants moved to dismiss, arguing that the facts directly contradicted the plaintiff’s presuit affidavit. The trial court denied the motion without prejudice.
The defendant then sought to coordinate an independent medical examination of the plaintiff, whereupon plaintiffs advised them that no exam could proceed because the plaintiff had already had the implants removed without notice to the defendant. Defendants deposed the physician who removed them, who testified that they had indeed been properly placed beneath the muscle during the plaintiff’s original implant surgery.
In response to an amended complaint, the defendants’ answer and affirmative defenses asserted that the plaintiff failed to conduct a reasonable presuit investigation, and failed to obtain an appropriate expert opinion.
Following the evidentiary hearing on the defendant’s second motion to dismiss, the trial court dismissed the case with prejudice, concluding that the plaintiff failed to satisfy the statutory requirement of a reasonable presuit investigation, further finding that no separate claim for negligent preoperative care could proceed because it was inextricably linked to the improper placement of the implants.
Under the Medical Malpractice Act, plaintiffs are required to conduct a presuit investigation sufficient to ascertain reasonable grounds for their claims and to corroborate those grounds with a verified written medical expert opinion before they issue a notice of intent. The plaintiff here failed to do that, premising her notice of intent on improper facts.
The appellate court went so far as to say that its “conscience was shocked” by a medical expert who under oath and penalty of perjury, would assure the court that there was justification for the plaintiff’s claim about the improper placement of the implants, when both the plaintiff and the subsequent treating physician testified the implants were in fact placed correctly.
Because the record clearly showed that the plaintiffs failed to conduct a reasonable investigation, their actions frustrated the legislative purpose of Chapter 766, and mandated the elimination of the claim and affirmance of the trial court’s dismissal.