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Florida Fourth DCA rules that medical negligence plaintiff should have been allowed to amend admission to correct legal error made by plaintiff's previous attorney

On December 13, 2017, in Clemons v. Namnum, No. 4D16-3558, the Florida Fourth DCA reversed a trial court’s summary judgment ruling in favor a medical negligence defendant. The plaintiff had filed a wrongful death medical negligence lawsuit against Florida Hospital Medicine Services, Inc. (“FHMS”) and one of its independent contractor physicians regarding the latter’s alleged negligence causing the death of her husband. The plaintiff alleged in the complaint that FHMS was liable under an agency theory. Almost two years later, the plaintiff moved to amend her complaint to further allege that FHMS owed her husband a duty “to exercise due care in the selection and retention of an independent contractor physician.” The defense objected to the amendment on the basis that the amendment presented an entirely new claim that was time-barred. In response, the plaintiff claimed that she had in fact alleged direct negligence against FHMS all along and the claim was never grounded in agency or respondeat superior.

After the trial court granted the motion to amend, the plaintiff submitted a response to a request for admit again stating that she was not pursuing an agency claim against FHMS. Shortly thereafter, plaintiff retained new legal counsel, who moved to amend the admissions “to properly reflect the true nature of the agency claim being brought against” FHMS. The trial court denied the motion and later granted FHMS’s summary judgment motion since there was no evidence that FHMS was directly negligent.

On appeal, the Fourth DCA observed that Fla. R. Civ. P. 1.370(b) provides that the court may allow “withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits.” The Court quoted from Istache v. Pierre, 876 So. 2d 1217, 1219 (Fla. 4th DCA 2004) for the proposition that the rule “favors amendments to responses to ensure that a cause is decided on its merits.” The Court additionally noted Fourth DCA precedent for allowing amendments of clerical errors. See Thomas v. Chase Manhattan Bank, 875 So. 2d 758, 760 (Fla. 4th DCA 2004). Although the Fourth DCA acknowledged that this case did not involve a clerical error, but rather a legal error made by a previous attorney, the Court noted that in different procedural contexts courts usually allow an attorney to correct a legal error made by its client’s prior attorney if such a correction would facilitate resolution of the matter. See Olesh v. Greenberg, 978 So. 2d 238, 243 (Fla. 5th DCA 2008).

The Fourth DCA concluded that since at the time of the proposed amendment, the pleadings were not closed, discovery was ongoing, the matter was not yet set for trial, and plaintiff’s counsel had stipulated that the plaintiff would respond to any additional agency discovery and would allow FHMS to re-depose any witness it wished, the defense would not have been prejudiced by the amendment and that it should have been allowed.