Macri v. Clements and Ashmore, P.A.
15 So. 3d 762 (Fla. 1st DCA 2009) (July)
The district court reversed the trial judge’s order granting summary judgment to the medical providers in a medical malpractice case. The plaintiffs were alleging that the providers’ malpractice during the birth of their child led to the child’s death. The medical providers argued that the claim of wrongful death was precluded by the exclusivity of remedies provision of section 766.303(2), Florida Statutes, also known as the Florida Birth-Related Neurological Injury Compensation Plan. There is an exception to this provision for “willful and wanton” conduct on the part of the medical provider. The trial judge ruled that the plaintiffs had waived the willful and wanton argument by not referencing it in their complaint. The district court noted that exclusivity was an affirmative defense and that the plaintiffs did not have to respond to it until the medical providers raised it. Once the medical providers raised this defense in their supplemental answer, the plaintiffs responded with the willful and wanton argument. Thus, the fact that this argument did not appear in the plaintiff’s original complaint was not sufficient grounds for granting summary judgment.