McCumber Daniels Attorney Secures Dismissal with Prejudice for Medical Malpractice Defendant

On June 13, 2007, McCumber Daniels shareholder and firm founder Andrew McCumber successfully presented a Motion to Dismiss in Hillsborough County, Florida, in a lawsuit involving allegations of medical negligence in the care and treatment of a patient with an intra-cerebral hemorrhage.  The hearing resulted in dismissal, with prejudice, of McCumber’s client, a certified registered nurse anesthetist (CRNA).

McCumber’s argument was based, in part, on the plaintiff’s failure to provide the CRNA with notice of the claims against him before the lawsuit was filed, as required by Florida’s Medical Malpractice Act (Chapter 766, Florida Statutes).  The plaintiff argued that pre-suit notice to other prospective defendants, including a physician and hospital, operated as notice to the CRNA; as provided by Florida Rule of Civil Procedure 1.650(b)(1), a notice of intent to initiate a medical negligence suit operates as notice to any potential party who bears a “legal relationship” to the prospective defendant receiving the notice.  In the complaint, however, the plaintiff failed to allege facts to establish a “legal relationship” between the independent contractor CRNA and any other defendant sufficient to impute pre-suit notice to the CRNA.   McCumber ultimately prevailed on this argument, as well as his contention that the plaintiff’s complaint was time barred by the two-year statute of limitations for a medical negligence lawsuit, pursuant to §§ 766.106(4), 95.11(4), Florida Statutes.