ESTHER MARIN-CASARIEGO, M.D. v. SOPHIA LINALE

Third District Court of Appeal
State of Florida

Opinion filed November 10, 2022.
Not final until disposition of timely filed motion for rehearing.

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No. 3D22-764
Lower Tribunal No. 22-1591
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Esther Marin-Casariego, M.D., et al.,
Petitioners,

vs.

Sophia Linale, et al.,
Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, David
C. Miller, Judge.

Davis Goldman, PLLC, Kimberly A. Cook, and Maidenly Macaluso, for
petitioners.

Eaton & Wolk, PL, and Douglas F. Eaton, for respondents.

Before FERNANDEZ, C.J., and LINDSEY, and LOBREE, JJ.

FERNANDEZ, C.J.
 Petitioners and defendants below, Esther Marin-Casariego, M.D. and

EMC MD, LLC (collectively, “petitioners”), petition this Court for a writ of

certiorari to quash the trial court’s order denying petitioners’ “Motion to

Dismiss Counts I, IV and V of Plaintiffs’ Amended Complaint for Products

Liability, Motion to Deny Emergency Petition for Injunction and Motion to

Strike Defendants Esther Marin-Casariego, M.D. and EMD MD, LLC and

Incorporated Memorandum of Law” (“Motion to Dismiss”). We have

jurisdiction. Martin Mem. Med. Ctr., Inc. v. Herber, 984 So. 2d 661, 662 (Fla.

4th DCA 2008). Because the trial court departed from the essential

requirements of law in denying the motion to dismiss, we grant the petition

and quash the challenged order.

Respondents/plaintiffs below are Sophia Linale, an individual; Daniela

Hernandez and Samantha Nuche, as parents and legal guardians of A.H.

and R.H., their minor children; Danielle Mena, an individual; and Ailyn

Cuervo and Arnold Cuervo, as parents and legal guardians of A.C., their

minor child; Ana Isabel Feliciano and Armando Alvarez, as parents and legal

guardians of A.A., her minor child; and Grisel D’Elena and Joseph Bru, as

parents and legal guardians of J.B. In March 2022, respondents filed

“Plaintiffs’ Amended Complaint for Products Liability and Emergency Petition

for Injunction” (“Amended Complaint”). This Amended Complaint alleged a

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products liability claim against a co-defendant, McKesson Medical-Surgical,

Inc., a Virginia corporation, for selling defective vaccination needles. The

Amended Complaint also alleged three counts against petitioners (Counts I,

IV, and V) that sounded in medical malpractice by claiming these two

defendants “negligently, carelessly, and/or recklessly failed to ensure that

their facilities were clear of any dangerous bacteria… and failed to ensure

the needles they were using were sterile.” Lakeland Reg’l Med. Ctr., Inc. v.

Allen, 944 So. 2d 541, 53 (Fla. 2d DCA 2006) (“If the cause of an injury is

effected by negligent medical care then, by definition, the complaint sounds

in malpractice.”). § 766.106(1)(a). Respondents, who are petitioners’

pediatric patients and parents/guardians of petitioners’ minor pediatric

patients, allege the patients were injured resulting from petitioners’ use of

allegedly contaminated syringes when giving childhood vaccinations while

petitioner was rendering medical care and treatment. Accordingly,

respondents claims against petitioners were subject to the requirements of

Chapter 766, Florida’s Medical Malpractice Statute.

However, respondents filed this action against petitioners without

complying with the requirements of Chapter 766. As a result, petitioners filed

a motion to dismiss counts I, IV, and V of respondents’ Amended Complaint,

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which the trial court denied. Petitioners now petition this Court for a writ of

certiorari.

Chapter 766, Florida’s Medical Malpractice Act, sets out the procedure

each claimant must comply with prior to filing a medical malpractice action,

including presuit notice and screening. See § 766.104, 766.106, 766.201-

.212, Fla. Stat. (2021). Where a complaint is filed before complying with the

requirements of chapter 766, dismissal is required. Dial 4 Care, Inc. v.

Brinson, 319 So. 3d 111, 114 (Fla. 3d DCA 2021); Corbo v. Garcia, 949 So.

2d 366 (Fla. 2d DCA 2007); University of Miami v. Jones, 338 So. 3d 401

(Fla. 3d DCA 2022).

One of the requirements is that plaintiff must conduct a reasonable

investigation “to determine that there are grounds for a good faith belief that

there has been negligence in the care or treatment of the claimant.” §

766.104(1), Fla. Stat. (2021). In addition, section 766.106(2) requires a

plaintiff to comply with presuit notice of intent to initiate litigation. Here,

respondents have conceded in their Response to the Petition for Writ of

Certiorari that they have not complied with the pre-suit investigation under

Chapter 766. However, respondents propose that petitioners be retained in

the case during the pre-suit process and that respondents be permitted to

amend their pleadings to assert claims for medical negligence against

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petitioners once the pre-suit investigation is finished. This is not an available

remedy under Florida law when the plaintiff has failed to comply with the pre-

suit requirements of the statute. Corbo, 949 So. 2d at 370. Because

respondents’ claim is a medical negligence action, they were required to

comply with the presuit notice requirements of chapter 766. Since they did

not do so, the trial court should have dismissed the amended complaint.

Martin Mem. Health Sys., Inc. v. Gorham, 337 So. 3d 71, 74 (Fla. 4th DCA

2022); Dial 4 Care, Inc., 319 So. 3d at 114; S. Miami Hosp., Inc. v. Perez, 38

So. 3d 809, 812 (Fla. 3d DCA 2010); Dr. Navarro’s Vein Ctr. of Palm Beach,

Inc. v. Miller, 22 So. 3d 776, 779 (Fla. 4th DCA 2009); Tenet S. Fla. Health

Sys. v. Jackson, 991 So. 2d 396 (Fla. 3d DCA 2008); Corbo, 949 So. 2d at

370; Goldfarb v. Urciuoli, 858 So. 2d 397 (Fla. 1st DCA 2003); Central Fla.

Reg’l Hosp. v. Hill, 721 So. 2d 404, 406 (Fla. 5th DCA 1998); Shands

Teaching Hosp. v. Miller, 642 So. 2d 48 (Fla 5th DCA 1994).

Accordingly, we quash the trial court’s order denying petitioners’

motion to dismiss. The cause is remanded to the trial court for further

proceedings consistent with this opinion.

Petition for writ of certiorari granted; order quashed; cause remanded.

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