       Third District Court of Appeal
                                State of Florida

                             Opinion filed July 6, 2016.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D15-0756
                          Lower Tribunal No. 09-35784
                              ________________


                                Yuri Bery, etc.,
                                     Appellant,

                                         vs.

                             Ghassan Fahel, D.O.,
                                     Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola,
Judge.

     Austin & Laurato, P.A., and Michael V. Laurato and Kimberly Hendee
(Tampa); Howard Levine, for appellant.

      Hicks, Porter, Ebenfeld & Stein, P.A., and Dinah Stein, Mary J. Gniadek
and Erik P. Bartenhagen; Petruccelli & Osher, P.A. (Fort Lauderdale), for appellee.


Before LAGOA and LOGUE, JJ., and KLINGENSMITH, Associate Judge.

      KLINGENSMITH, Associate Judge.
      Counsel for Yuri Bery, as personal representative of the estate of Juliana

Bery, appeals a judgment awarding attorney fees and costs against him after

Ghassan Fahel, D.O. successfully challenged the plaintiff’s compliance with

Florida’s presuit investigatory requirements under section 766.206, Florida Statute

(2011), and obtained dismissal of the plaintiff’s claim for medical malpractice. For

the reasons set forth below, we affirm the trial court’s order.

      As part of his presuit investigation, counsel for the plaintiff obtained the

affidavit of Dr. Khilnani, an emergency medicine physician, to serve as the

required statutory medical expert opinion corroborating the merits of the plaintiff’s

claims against Dr. Fahel, a board-certified family practitioner. Counsel then filed

the instant medical malpractice action against Dr. Fahel and other defendants,

whereupon Dr. Fahel claimed the notice of intent served on him was defective and

improper under the statute. Following two evidentiary hearings, the trial court

ruled that Dr. Khilnani did not meet the criteria set forth by the Florida Legislature

as it relates to testifying against a general practitioner, and, because the plaintiff

failed to comply with the medical malpractice presuit requirements, the claim was

dismissed.

      On appeal from the dismissal, this court affirmed, concluding that the trial

court correctly determined that Dr. Khilnani was “unqualified to act as an expert

witness against Dr. Fahel.” Bery v. Fahel, 143 So. 3d 962, 963 (Fla. 3d DCA



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2014). On remand, the trial court held an evidentiary hearing and awarded Dr.

Fahel the $6,623.39 in fees and costs the defense was forced to incur in responding

to the plaintiff’s deficient notice of intent. The final judgment indicated that the

sanction resulted from counsel’s failure “to comply with the presuit requirements,”

by, among other things, utilizing the corroborating affidavit of an expert who was

unqualified to testify against Dr. Fahel.

        The trial court’s finding that Dr. Khilnani was not qualified as an expert

under the statutes is not before this court on appeal. That finding was affirmed in

the prior appeal, Bery, 143 So. 3d at 962, making Dr. Khilnani’s disqualification as

an expert the law of the case. See Florida Dep’t of Transp. v. Juliano, 801 So. 2d

101, 105 (Fla. 2001) (“The doctrine of the law of the case requires that questions of

law actually decided on appeal must govern the case in the same court and the trial

court, through all subsequent stages of the proceedings.”).          The issue here is

whether the failure to provide an adequate corroborating affidavit constitutes a

failure to comply with reasonable presuit investigation requirements for an award

of fees and costs as a sanction. We find that under the language of the statute, it

does.

        Section 766.206(2) provides as follows:

        If the court finds that the notice of intent to initiate litigation mailed
        by the claimant does not comply with the reasonable investigation
        requirements of ss. 766.201-766.212, including a review of the claim
        and a verified written medical expert opinion by an expert witness as


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      defined in s. 766.202, or that the authorization accompanying the
      notice of intent required under s. 766.1065 is not completed in good
      faith by the claimant, the court shall dismiss the claim, and the
      person who mailed such notice of intent, whether the claimant or
      the claimant’s attorney, is personally liable for all attorney’s fees
      and costs incurred during the investigation and evaluation of the
      claim, including the reasonable attorney’s fees and costs of the
      defendant or the defendant’s insurer.

(emphasis added). Section 766.202(6) defines “medical expert” as “a person duly

and regularly engaged in the practice of his or her profession who holds a health

care professional degree from a university or college and who meets the

requirements of an expert witness as set forth in s. 766.102.” Section 766.102, in

turn, sets forth the qualifications required of an expert witness providing the

standard of care for a healthcare provider, whether a specialist or a general

practitioner.

      A party’s failure to provide a corroborating affidavit from a qualified

medical expert constitutes prima facie evidence of lack of a reasonable basis to

bring suit. See Duffy v. Brooker, 614 So. 2d 539, 545 (Fla. 1st DCA 1993),

abrogated on other grounds, Shands Teaching Hosp. v. Miller, 642 So. 2d 48 (Fla.

1st DCA 1994). Here, substantial credible evidence supported the trial court’s

determination that a reasonable investigation was not performed by the plaintiff’s

counsel, not only because of Appellant’s failure to satisfy the statutory

requirements set out in Section 766.102, but also because the attorney persisted in

the use of Dr. Khilnani’s affidavit even after it was disclaimed and withdrawn by


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the affiant himself before the presuit period had expired. See Herber v. Martin

Mem’l Med. Ctr., Inc., 76 So. 3d 1, 2-3 (Fla. 4th DCA 2011) (holding that factors

in considering “the reasonableness of the investigation” can include actions taken

after the notice of intent was filed). Once the trial court found that the presuit

affidavit did not meet the statutory pre-suit notice requirements and dismissed the

claim, Section 766.206(2) mandated a finding that the presuit investigation was

unreasonable for the purposes of imposing fees and costs.

      Therefore, we affirm the trial court’s judgment finding the presuit

investigation unreasonable and assessing fees and costs as a sanction.

      Affirmed.




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