Hermoso v. New Life: No Pre-Suit Investigation, Claim Barred

In November 2018, Dr. Camille Chavez performed a breast lift and implant replacement surgery on Arline Hermoso at New Life Plastic Surgery Corporation. Following the surgery, Hermoso served a notice of intent to initiate medical negligence litigation under section 766.203 of the Florida Statutes. She alleged that Dr. Chavez negligently placed the implants above the muscle rather than beneath it and failed to provide appropriate post-operative care to address vascular compromise caused by the placement.

Hermoso supported her notice with an affidavit from her expert, Dr. Paul Glat, who opined that reasonable grounds existed for a medical negligence claim. He stated that a plastic surgeon exercising reasonable care under similar circumstances would have placed the implants beneath the muscle and provided adequate care for vascular compromise.

Pre-suit dispute and filings

Dr. Chavez denied the allegations and submitted an affidavit from her expert, Dr. Darrell Henderson, who concluded that her treatment was appropriate and within the standard of care. After receiving this denial, Hermoso and her husband, Ivan Manzano, filed suit against Dr. Chavez and New Life. The complaint was amended, ultimately resulting in a second amended complaint alleging medical negligence.

During her deposition, Hermoso admitted that Dr. Chavez had placed the implants beneath the muscle, contradicting her initial claim. Shortly afterward, Hermoso underwent another surgery with Dr. Jason Altman to remove the implants. Neither Dr. Chavez nor New Life was notified beforehand. Dr. Altman later testified that the implants were properly positioned beneath the muscle when he removed them.

Dr. Chavez and New Life filed motions to dismiss, contending Hermoso failed to comply with the statutory pre-suit investigation requirements. The trial court initially denied the first motion without prejudice and ordered an independent medical examination, which became moot after the implant removal. With Dr. Altman’s testimony confirming proper placement, the defendants renewed their motion to dismiss.

Trial court ruling

The trial court held an evidentiary hearing and dismissed the second amended complaint with prejudice. It found Hermoso failed to conduct the reasonable pre-suit investigation required under section 766.203 of the Florida Statutes. The court also determined that the claim for negligent post-operative care could not survive independently, as it was inextricably tied to the allegations of improper implant placement. Without valid grounds to support either theory, the case was dismissed.

Appellate review

Hermoso and Manzano appealed to the Florida Third District Court of Appeal. They argued that their pre-suit notice satisfied statutory requirements and that the trial court erred in dismissing the case with prejudice. The appellate court applied de novo review, considering whether the notice and expert affidavit established reasonable grounds for litigation.

The court examined the Medical Malpractice Act, which requires that a claimant conduct a pre-suit investigation to determine whether reasonable grounds exist to believe negligence occurred, and to corroborate this belief with a verified written expert opinion. The purpose of the statute is to prevent frivolous malpractice suits and promote early resolution of meritorious claims. The appellate court emphasized that Hermoso’s claim rested on the allegation of improper implant placement, which was directly contradicted by her deposition testimony and Dr. Altman’s surgical findings.

The court determined that Dr. Glat’s affidavit failed to provide valid corroboration, as it was based on an incorrect factual premise. Because Hermoso’s claim lacked the necessary foundation under the statute, the appellate court affirmed the trial court’s dismissal with prejudice.

Final outcome

The Florida Court of Appeal affirmed the dismissal of Hermoso’s medical malpractice case against Dr. Chavez and New Life Plastic Surgery Corp. The court held that she had not satisfied the statutory requirements for pre-suit investigation and expert corroboration under Florida law.

Help with medical malpractice cases

If you or a family member experienced injury or loss due to alleged medical negligence, Whitcomb, Selinsky PC handles malpractice claims involving surgical procedures, post-operative care, and provider compliance with professional standards. Reach out to schedule a consultation and learn how our team can assist with your case.