Patry v. Capps

Patry v. Capps

Opinion

 [*10]  KOGAN, J.

We have for review Patry v. Capps, 618 So. 2d 261 (Fla. 2d DCA 1993), in which the Second District Court of Appeal certified the following question as being of great public importance:

WHETHER THE REQUIREMENT IN A MEDICAL MALPRACTICE ACTION THAT NOTICE BE GIVEN BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, IS (1) A SUBSTANTIVE ELEMENT OF THE STATUTORY TORT, OR (2) A PROCEDURAL REQUIREMENT THAT CAN BE DISREGARDED BY THE TRIAL COURT WHEN THE DEFENDANT RECEIVES ACTUAL WRITTEN NOTICE IN A TIMELY MANNER THAT RESULTS IN NO PREJUDICE.

 [**2]  618 So. 2d at 265-66 (Altenbernd, J., dissenting); Patry v. Capps, No. 91-04193 (Fla. 2d DCA Order on Motion for Certification May 25, 1993). We have jurisdiction ¹ and answer the question as rephrased below in the affirmative:

WHETHER THE ACKNOWLEDGED RECEIPT OF TIMELY WRITTEN NOTICE OF INTENT TO INITIATE LITIGATION FOR MEDICAL MALPRACTICE THAT RESULTS IN NO PREJUDICE TO THE DEFENDANT IS SUFFICIENT NOTICE UNDER SECTION 768.57(2), FLORIDA STATUTES (1987) (CURRENT SECTION 766.106(2), FLORIDA STATUTES (1993)).

The Patrys, individually and as mother and father and next friends of Chad M. Patry, a minor, brought a medical malpractice action against Dr. William L. Capps. Chad, who was born in 1988, suffers from cerebral palsy and quadriplegia. The Patrys allege that Chad's condition was caused by Dr. Capps' negligence in delivering the child by Caesarian section. The action against Dr. Capps was dismissed because the Patrys failed to strictly comply [**3]  with the mode of service provided in section 768.57(2), Florida Statutes (1987). ² It is undisputed that Dr. Capps was served with the Patrys' intent to initiate litigation by hand delivery rather than by certified  [*11]  mail, return receipt requested, as provided in the statute.

On appeal, the district court recognized the harshness of requiring strict compliance with the mode of service provided by the Legislature but felt compelled by precedent to affirm the dismissal. See Solimando v. International Med. Centers, 544 So. 2d 1031 [**4]  (Fla. 2d DCA) (notice sent by regular mail insufficient under section 768.57(2)), review dismissed, 549 So. 2d 1013 (Fla. 1989); Glineck v. Lentz, 524 So. 2d 458 (Fla. 5th DCA) (only written notice by certified mail, return receipt requested, sufficient under section 768.57(2)), review denied, 534 So. 2d 399 (Fla. 1988). The court below also rejected the Patrys' claim of estoppel or waiver under this Court's decision in Ingersoll v. Hoffman, 589 So. 2d 223 (Fla. 1991). 618 So. 2d at 262.

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