IN THE SUPREME COURT OF THE STATE OF FLORIDA

CASE NO. SC12-2598

2DCA CASE NO. 2D12-793

L.T. CASE NO. 41-2011-CA-06610

DAVID McCULLA and MARGARETMcCULLA, Wife,

Petitioners.vs.

BRIAN C. RELL, D.P.M. and COASTALORTHOPEDICS & SPORTS MEDICINEOF SOUTHWEST FLORIDA, P.A.

Respondents.

PETITIONERS' BRIEF ON JURISDICTION

Louis Thaler, EsquireThe Florida Bar No. 360627LOUIS THALER, P.A.Two Alhambra PlazaPenthouse II - Suite CCoral Gables, Florida 33134(305) 446-0100(305) 445-7750 - Fax

TABLEOFCONTENTS

Table of Contents i

Table of Citations ii

Statement of Case and Facts 1

Summary of Argument 5

Argument 6

Conclusion 10

TABLE OF CITATIONS

CASES: PAGE

Davis v. Orlando Regional Medical Center, 654 So.2d 664(Fla.App.5th 1995) 10

Jackson v. Morillo, 976 So.2d 1125(Fla.App.5th 2007) 10

Rell v. McCulla, 2012 WL 4841360, 37 Fla. L. Weekly D2399,(Fla.App. 2d 2012) 5

St. Mary's Hospital v. Bell, 785 So.2d 1261(Fla. 4th DCA 2001) 6, 9Tracey v. Barrett, 550 So.2d 55 8(Fla.App2d 1989) 10

Williams v. Oken, 62 So.3d 1129(Fla. 2011) 6, 7, 9, 10

Williams v. Powers, 619 So.2d 980(Fla.App.5th 1993) 10

Wolfsen v. Appelgate, 619 So.2d 1050(Fla.App. l st 1993) 9

FLORIDA STATUTES:

766 1

766.102 10

766.104(1) 10

-11-

STATEMENT OF THE FACTS AND CASE

This case is a medical malpractice action brought by Respondents, Plaintiffs

below, David McCulla (the patient) and his wife Margaret McCulla (hereinafter

"Petitioners") against Defendants below, Brian C. Rell, D.P.M. and his employer

Coastal Orthopedics & Sports Medicine of Southwest Florida, P.A. (hereinafter

"Respondents"). The essential facts alleged arise out of two surgeries performed by

Dr. Rell on the foot and ankle of the patient which resulted in permanent and

significant damage to the involved anatomy.

On March 7, 2001, Petitioners, through undersigned counsel, sent a certified

mailed Notice of Intent to Sue Letter to Respondents to commence the 90-day

presuit screening process under Florida Statute Chapter 766. Attached to this letter

was the Verified Opinion of Medical Expert Jeff Kopelman, DPM executed before a

notary on March 4, 2011 and Dr. Kopelman's Curriculum Vitae. Also attached

were copies of the voluminous records compiled by Petitioners to date. The letter

contained nine (9) requests for discoverable presuit information. Dr. Kopelman's

Verified (sworn and written) Opinion of March 4, 2011 stated (emphasis added):

My name is Jeff Kopelman. I graduated from Barry University School ofPodiatry in 1990 and was Valedictorian of my class. I did a two yearsurgical residency in Plantation, Florida and have been in practice forapproximately 20 years. I am board certified in podiatric surgery. I was thefirst podiatrist with surgical privileges at Bayfront Hospital and St.Anthony's Hospital and the first head of podiatry at St. Anthony's Hospitalin St. Petersburg. I have worked as a podiatric consultant for All FloridaOrthopaedics for approximately 15 years. I am familiar with the standards

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or care and prevailing professional practices for podiatric surgeons in theState of Florida.

My presuit expert opinions are based on the records presented to me onpatient David E. McCulla from Brian C. Rell, D.P.M. of Coastal Orthopedics& Sports Medicine and James M. Cottom of Sarasota Orthopedic Associates.

Mr. McCulla was first seen by Dr. Rell on November 5, 2008. Thepatient had a previous medical history of multiple previous anklesprains and previous ankle surgery on the right foot and ankle. An MRI onNovember 11, 2008 showed multiple bony fragments in the patient's rightankle as well as possible avascular necrosis of the talus and chronic medialand lateral ligamentous injury.

On December 12, 2008 and January 28, 2009, the patient underwentarthroscopic surgeries performed by Dr. Rell at the Surgery Center at PointeWest. The patient would be last seen by Dr. Rell in follow-up on April 22,2009.

Mr. MCulla sought a second opinion from Dr. Cottom on September 3,2009. Dr. Cottom's assessment that date included a "...possible partial teartibialis tendon..." An MRI of the right ankle on September 9, 2009 revealeda "...hypertrophic partial tear of the anterior tibialis tendon..." Dr. Cottomwould perform surgery on the patient's right ankle on May 12, 2010 andJune 22, 2010.

According to the records, Dr. Cottom felt that the medial anterior port of thearthroscopic surgery by Dr. Rell partially tore the tibialis anterior tendon.Dr. Cottom's Operative Report of May 12, 2010 states "...in addition, hedid develop a partial tear with tibialis anterior tendon as a result of previousarthroscopic debridement, where the instrumentation openly irritated tibialisanterior tendon..."

Additionally, going back to Dr. Rell's records, on March 16, 2009, whichcoincidentally state that the tibialis anterior tendon was tested and had astrength of 5/5, Dr. Rell injected .25% of dexamethasone phosphate intosome scar buildup along the medial anterior portal incision site.The concernshere, which would warrant further investigation, are (a) did the steroidgo into the tendon and possibly weaken it and/or (b) predispose it totearing? The evaluation of these concerns warrants further investigation

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especially because the degree of previous infection is difficult to determinedue to the lack of detail in the notes.

In my expert opinion, based on the records provided, there are reasonablegrounds that the patient's tibialis anterior tendon could have been weakenedor injured by the steroid shot given by Dr. Rell. This is notwithstanding thatwe are dealing with a patient with previous ankle medical history, as well asfive surgeries on his foot, and therefore with increases in his risks ofscarring, arthritis and possible future foot problems.

I certify that I have never had any opinion disqualified by any court underpenalty of perjury. I declare that I have read the foregoing and the factsstated are true to the best of my knowledge and personal belief and arestated within a reasonable degree of podiatric medical certainty.

I recognize the purpose of this Verified Opinion is to allow for theinitiation of further investigation and a presuit screening process underFlorida Law and accordingly I reserve the right to amend these opinions ifany new or different information warrants same.

Thereafter, a full presuit screening occurred between the parties including

exchanges of information and data, HIPAA authorizations, records, diagnostic

films, etc. By letter dated March 22, 2011, Respondents' counsel established a

presuit expiration date of June 16, 2011, which was not contested.

On June 13, 2011, three days before the agreed end of the 90-day presuit

period, Respondents served a letter first raising a challenge to Dr. Kopelman's

verified opinion. On June 16, 2011, Respondents' insurer, FPIC, served a letter

denying the claim with a written opinion of their expert dated June 1, 2011.

On October 4, 2011, Petitioners timely filed suit. Attached to the Complaint

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for Damages were the original Verified Opinion and an Addendum to the Verified

Opinion of Jeff D. Kopelman dated September 23, 2011 which stated:

To clarify and supplement my Verified Opinion dated March 4, 2011, Iwould state that, based on the records reviewed, there exist reasonablecorroborating grounds to further investigate a claim of medical negligenceagainst Brian Rell, DPM and the causation of damage to patient DavidMcCulla's anterior tibialis tendon. I continue to reserve the right to modifymy opinions based on additional information.

On October 27, 2011, Petitioners served a Motion to Dismiss Action. On

November 9, 2011, Respondents served an "Amendment to Complaint by

Interlineation" which addressed another issue raised by Respondents that the

Addendum of September 23, 2011 by Dr. Kopelman set forth above was not

notarized; even though notarization is not required, Dr. Kopelman again declared

that his Verified Opinion and Addendum were true and accurate under oath.

The Motion to Dismiss Action was specially set for hearing before lower

Circuit Court Judge Peter A. Dubensky on January 5, 2012. On December 30,

2011, Petitioners served a "Response to Motion to Dismiss Action."

On January 5, 2012, the lower court judge conducted a specially set hearing

on the Motion to Dismiss Action. On January 17, 2012, the lower court judge

entered its own 4-page Order denying the Motion to Dismiss Action.

On February 16, 2012, Respondents filed the Petition for Writ of Certiorari

with the Second District Court of Appeal and on February 17, 2012, Respondents

served a Motion for Reconsideration of Motion to Dismiss Action and a

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Memorandum of Law in the lower court. On February 22, 2012, without hearing or

even a response from Petitioners, the lower court judge denied the Respondents'

Motion for Reconsideration of Motion to Dismiss Action.

The case was fully briefed in the Second District Court of Appeal and Oral

Argument occurred August 1, 2012.

On October 12, 2012, the Second District Court of Appeal rendered its

decision in this case. Rell v. McCulla, 2012 WL 4841360, 37 Fla. L. Weekly

D2399 (Fla.App. 2d 2012) [Appendix Exhibit A]. On October 24, 2012,

Petitioners filed a Motion for Rehearing which was denied on November 26, 2012.

This Petition ensued.

SUMMARY OF ARGUMENT & BASIS OF JURISDICTION

The appeal issues presented by the instant Petition involve the granting by

the Second District Court of Appeal of Respondents' (petitioners below) Petition

for Writ of Certiorari and the quashing of the order of the lower trial court judge

denying Respondents' motion to dismiss action and denying Respondents' motion

for rehearing of the first order. The Respondents' motion to dismiss action had

challenged the interpretation of the presuit verified opinion of Petitioners' expert.

Petitioners seek to invoke the discretionary jurisdiction of this Court because there

is an express and direct conflict between the decision in this case of the Second

District Court of Appeal, Rell v. McCulla [Appendix Exhibit A], and the Supreme

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Court of Florida, Williams v. Oken, 62 So.3d 1129 (Fla. 2011), on the same issues

of law and involving the limits of certiorari jurisdiction. Despite the limits

expressed by this Court in Williams, the Second District did the opposite and

clearly exceeded those limits. The Second District is also directly in conflict with

a decision of another district court of appeal, St. Mary's Hospital v. Bell, 785

So.2d 1261 (Fla. 4th DCA 2001)(cited and approved in Williams).

ARGUMENT

The record demonstrates that three (3) days prior to the agreed end of the

90-day presuit screening process and after the exchange of information and

documents in this medical (podiatric) malpractice case, the instant Respondents

(defendants and petitioners below), first challenged the merits of the sworn,

notarized, verified, written opinion of the patient's presuit expert (Jeff Kopelman,

DPM), a board-certified podiatrist, whose actual qualifications are not in question

and were not questioned below. As demonstrated in the Statement of Case and

Facts, Dr. Kopelman would review the matter on two additional occasions.

The Respondents' filed a Motion to Dismiss Action which was heard by the

lower Circuit Court Judge Peter Dubensky on January 5, 2012. Judge Dubensky

would draft his own order entered January 17, 2012 setting forth his analysis and

reasons for denying the motion to dismiss action, accepting Dr. Kopelman's

verified opinion and Petitioners' counsel's proffer as to said counsel's efforts in

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conducting the presuit investigation. Respondents then filed a Petition for Writ of

Certiorari in the Second District Court of Appeal and a Motion for Rehearing of

the Order Denying the Motion to Dismiss Action in the lower court. Judge

Dubensky again entered his own order, without further hearing or even a response

from Petitioners, denying said motion for rehearing.

This Court in Williams v. Oken, 62 So.3d 1129 (Fla. 2011), has mandated

that certiorari jurisdiction be limited the rarest of circumstances where three

elements are established: (1) a departure from the essential requirements of the

law, (2) resulting in material injury for the remainder of the case (3) that cannot be

corrected on postjudgment appeal. As set forth in Williams v. Oken, certiorari

review is intended to fill the interstices between direct appeal and the other

prerogative writs and allow a court to reach down and halt a miscarriage of justice

where no other remedy exists; it was never intended to redress mere legal error.

In Williams v. Oken, the question of a presuit expert's qualifications to give

an opinion in a medical malpractice case were at issue. This Court determined:

"...the First District exceeded its authority by granting certiorari to reviewwhether Williams' expert met those qualifications. Florida courts havepermitted certiorari review solely to ensure that the procedural aspectsof the presuit requirements are met.

This Court had further found in Williams v. Oken that the defendant therein:

"...was afforded the process guaranteed by statute because he receivedadvance notice and an opportunity to examine Williams' claim before thefiling of the lawsuit. Thus, a deprivation of the process did not occur. Under

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these cases, certiorari would be inappropriate because the justification forissuing a writ of certiorari is diminished greatly if the parties have beenafforded the essential process guaranteed by law and the judge has merelymade a mistake in an order or ruling entered in the course of the proceeding.

In the instant case, there has been no finding below that the procedural

statutory requirements have not been fulfilled. There is no finding that counsel for

the patient has not acted in good faith or has violated the good faith certificate in the

Complaint for Damages (which stated that "undersigned counsel certifies that a

reasonable investigation, permitted by the circumstances, has occurred and there is

corroboration which gives rise to a good faith belief that grounds exist for this

action.") There is no finding that the claim should be eliminated from our court

system as frivolous. There is no finding that the doctor was not on notice or was

hampered in his investigation or was harmed in any way. Yet, despite a record of

substantial and costly efforts to go through the statutory process just to allow the

filing of a lawsuit, this patient drastically finds himself out of court and denied his

constitutionally guaranteed access to court because the Second District has

interpreted and weighed the merits of the presuit affidavit and the Petitioners'

presuit investigation in accordance with the Respondents' assertions and has

disregarded the efforts of the lower court judge who presided over a live (recorded)

hearing and then considered the matter again on rehearing. Analysis of the Second

District's decision at issue and the transcript of the Oral Argument before the

Second District will reflect that the appellate court was indeed weighing the

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evidence. The Second District's has stated in its decision that "...we have not

identified any authority holding that a medical negligence plaintiffs attorney will

suffice as a "medical expert..." Petitioners have never asserted at any point that

counsel is a medical expert but, in addition to the considering the presuit affidavit,

the lower court judge heard and accepted counsel's proffer at a hearing as to the

investigative efforts of Petitioners. Petitioners have cited below to Wolfsen v.

Appelgate, 619 So.2d 1050 (Fla.App.lst 1993), where, concerning issues involving

the sufficiency of presuit affidavits and whether a reasonable investigation was

performed, the First District accepted that patient's attorney proffer "...in some detail

regarding the nature and extent of his investigation..." including introducing medical

documents and a publication he had reviewed. The Wolfsen court stated:

The procedure for judicial review set out in section 766.206 cannot beconverted into some type of summary proceeding to test the sufficiency,legally or factually, of medical negligence claims. Its only purpose is toensure that a claim or denial has been preceded by a "reasonableinvestigation," and that it "rests on a reasonable basis"- i.e.,"toeliminate frivolous claims and defenses."

In St. Mary's Hospital v. Bell, 785 So.2d 1261 (Fla.App.4th 2001)(cited and

approved in Williams v. Oken), the Fourth District held that certiorari review was

unavailable to review evidence regarding the sufficiency of estate's counsel's

presuit investigation of the estate's claims of medical malpractice.

After the January 5, 2012 hearing, the lower court judge did his own

research and incorporated same into his first order denying the motion to dismiss

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action by citing Williams v. Powers, 619 So.2d 980 (Fla.App.5th 1993)(failure to

provide adequate verified written medical expert opinion is not "dispositive" in

dealing with medical malpractice defendant's "response" rejecting claim under

Medical Malpractice Act...).

The Second District in the instant case was apparently also looking for some

definitive presuit statement ofnegligence or certain magic words where the statutes

and case law do not call for same. See, Tracey v. Barrett, 550 So.2d 558

(Fla.App2d 1989). Florida Statute 766.104(1), states:

...For purposes of this section, good faith may be shown to exist if theclaimant or his or her counsel has received a written opinion, which shallnot be subject to discovery by an opposing party, of an expert asdefined in s.766.102 that there appears to be evidence of medicalnegligence...

This is consistent several cases in this area. In Jackson v. Morillo, 976 So.2d

1125 (Fla.App.5th 2007), the court held:

"...pre-suit screening requirements are broadly construed to favor access tothe courts and do not require that the corroborating expert's affidavit givenotice of every possible instance of medical negligence...the medicalmalpractice statutory scheme must be interpreted liberally so as not tounduly restrict a citizen's constitutionally guaranteed access to the courts,while at the same time screening out frivolous lawsuits and defenses)."

Accord, Davis v. Orlando Regional Medical Center, 654 So.2d 664

(Fla.App.5th 1995).

In conclusion, Petitioners request that jurisdiction be accepted so this matter

may be fully brief and irreparable harm be prevented.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

served by email this 7th day of January, 2013 to Mark Hicks, Esquire, HICKS

PORTER, 799 Brickell Avenue, 9th Floor, Miami, Florida 33131

[mhicks@mhickslaw.com] and Ross L. Fogleman, III, Esquire, Dickinson &

Gibbons, P.A., 401 Cattlemen Road, Suite 300, Sarasota, Florida 34232

[rfogleman@dglawyers.com].

Louis haler, EsquireThe Florida Bar No. 360627LOUIS THALER, P.A.Two Alhambra PlazaPenthouse II - SuiteCoral Gables, Florida 33134(305) 446-0100(305) 445-7750 - Fax