CLEVELAND CLINIC FLORIDA, ET AL.

v.

GEORGE DANIELS AS PERSONAL REPRESENTATIVE OF REGINA DANIELS, DECEASED,

PER CURIAM.

The defendants in a medical malpractice case – Cleveland Clinic Florida (a Nonprofit Corporation), Cleveland Clinic Weston Hospital Nonprofit Corporation, and Dr. Elliot Wasser (collectively “Defendants”) - petition for a writ of certiorari seeking review of the denial of their motion to dismiss or stay. We grant the petition and direct the trial court to conduct the evidentiary hearing required by section 766.106(2)(b), Florida Statutes (2022).

This case concerns the presuit notice and investigation requirements for medical malpractice actions under Chapter 766, Florida Statutes.

Plaintiffs, Regina and George Daniels, filed their complaint in March 2023 and alleged that Dr. Wasser, who was practicing as a radiologist at Cleveland Clinic Weston Hospital, was negligent in failing to diagnose

plaintiff Regina Daniels’ liver cancer in 2021. Plaintiffs alleged that, before filing suit, they served the doctor by certified mail a notice of intent to initiate litigation as required by section 766.106(2). The certified mail return receipt showed the letter was received in October 2022 and was signed for by someone named “Jeniffer” [sic]. According to the complaint, the notice of intent was addressed to the same mailing and business address that Cleveland Clinic Florida (A Nonprofit Corporation), and its employee Dr. Wasser, had registered with the Agency for Health Care Administration and with the Secretary of State.¹

The doctor did not respond within the 90-day presuit investigation period of section 766.106(3). Thus, Plaintiffs alleged that they complied with Chapter 766’s presuit notice requirement.²

In their first response to the complaint, Defendants moved to dismiss or for a stay and requested an evidentiary hearing. They attached an affidavit from the doctor explaining that he was personally served process for the complaint in March 2023. Prior to that, he had no notice of Plaintiffs’ potential claim against him. He denied being served the presuit notice as alleged in the complaint. He did not sign for the certified mail and never received a copy of the notice. He has never authorized anyone to sign for or accept certified mail for him. The secretary in the radiology department where he receives mail never received the notice.

Defendants advised the judge that they were entitled to an evidentiary hearing under section 766.106(2)(b)², Florida Statutes (2022), which went into effect on June 15, 2022. Ch. 22-190, § 17, Laws of Fla. The amended statute expanded the methods for providing presuit notice:

(2) PRESUIT NOTICE.—

(a) After completion of presuit investigation pursuant to s. 766.203(2) and before filing a complaint for medical negligence, a claimant shall notify each prospective

defendant of intent to initiate litigation for medical negligence by at least one of the following verifiable means:

1. United States Postal Service certified mail, return receipt requested; 2. United States Postal Service mail with a tracking number; 3. An interstate commercial mail carrier or delivery service; or 4. Any person authorized by law to serve process.

§ 766.106(2)(a), Fla. Stat. (2022). Previously, the statute required the claimant to “notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence.” § 766.106(2)(a), Fla. Stat. (2021).

The 2022 amendment also added new paragraph (b), which is at the crux of this dispute and provides:

(b)1. Proof of service made pursuant to this subsection and delivered to an address on file with the Department of Health, the Secretary of State, or the Agency for Health Care Administration creates a rebuttable presumption that service was received by the prospective defendant.

2. If service is challenged during subsequent litigation, the court must conduct an evidentiary hearing to determine whether the prospective defendant or a person legally related to the prospective defendant was provided notice pursuant to this subsection and, if so, the date of such service. If service is challenged under this subparagraph, it must be challenged in the first response to the complaint, and if:

a. The court determines that service was properly made at the prospective defendant’s address as listed on the state licensing agency website or an address on file with the Secretary of State; and b. The prospective defendant proves by the greater weight of the evidence that neither the prospective defendant nor a person legally related to the prospective defendant at the time of service knew or should have known of the service,

the court must stay the case for a presuit investigation period pursuant to this section, and the statute of limitations and statute of repose must be tolled from the time service was properly made at the prospective defendant’s address as listed on the state licensing agency website or an address on file with the Secretary of State. The tolling shall end at the conclusion of the presuit investigation period provided for in this subsection, and the stay of litigation shall automatically end at the conclusion of the presuit investigation period.

§ 766.106(2)(b), Fla. Stat. (2022) (emphasis supplied). The court held a non-evidentiary hearing and denied the motion because there was no dispute that the notice was sent by certified mail to a registered address and received by somebody named Jennifer. The court ruled that the doctor should have known of the notice because it was served at the hospital and was signed for on the doctor’s behalf. This petition timely followed.

We have certiorari jurisdiction to review whether the procedures for bringing a medical malpractice action under Chapter 766 have been followed. Williams v. Oken, 62 So. 3d 1129, 1137 (Fla. 2011).

The parties dispute whether the amended statute applies in this case.

“In the analysis of a change in statutory law, a key determination is whether the statute constitutes a procedural/remedial change or a substantive change in the law.” Smiley v. State, 966 So. 2d 330, 334 (Fla. 2007). Substantive changes to vested rights are presumed not to apply retroactively, but procedural/remedial changes can apply to pending cases. Id.

Remedial statutes operate to further a remedy or confirm rights that already exist, and a procedural law provides the means and methods for the application and enforcement of existing duties and rights. . . . In contrast, a substantive law prescribes legal duties and rights and, once those rights and duties are vested, due process prevents the Legislature from retroactively abolishing or curtailing them.

Maronda Homes, Inc. of Fla. v. Lakeview Rsrv. Homeowners Ass’n, Inc., 127 So. 3d 1258, 1272 (Fla. 2013) (citations omitted).

Here, the amended statute expanded the methods for giving presuit notice and created procedures for determining whether presuit notice was properly given. The amended statute does not take away or create substantive duties or rights. The statute merely allows for a new presuit investigation period if a defendant “proves by the greater weight of the evidence that neither the prospective defendant nor a person legally related to the prospective defendant at the time of service knew or should have known of the service.” § 766.106(2)(b)2.b., Fla. Stat. (2022).

In January 2023, the Florida Supreme Court incorporated the amended statute’s evidentiary hearing requirement into Florida Rule of Civil Procedure 1.650(b)(3). See Fla. R. Civ. P. 1.650(b)(3) (“If, during subsequent litigation, service is challenged in the first response to the complaint, the court must conduct an evidentiary hearing as provided by section 766.106(2)(b)(2), Florida Statutes.”); In re Amendments to Fla. Rules of Civ. Procedure 1.070 & 1.650, 356 So. 3d 206 (Fla. 2023).3

This procedural requirement applies in this pending case, which was filed in March 2023.

“[T]he mere application of a new procedural statute . . . in a pending case is not a retroactive application.” Love v. State, 286 So. 3d 177, 189 (Fla. 2019). Courts use a “commonsense” approach when determining whether a procedural statute applies to a pending case. Id. at 187-88. “[T]he ‘commonsense’ application of a new procedure generally ‘depends on the posture of the particular case.’” Love, 286 So. 3d at 187 (quoting Landgraf v. USI Film Products, 511 U.S. 244, 275 n.29 (1994)).

(1) Before filing a complaint for medical negligence, a claimant must serve a notice of intent to initiate litigation on each prospective defendant by any of the verifiable means provided by section 766.106(2)(a), Florida Statutes. A notice served on any prospective defendant must operate as notice to that prospective defendant and any other prospective defendant who bears a legal relationship to the prospective defendant served with the notice. The notice must make the served prospective defendant a party to the proceeding under this rule.

In re Amendments to Fla. Rules of Civ. Procedure 1.070 & 1.650, 356 So. 3d 206 (Fla. 2023).

Here, the amended statute went into effect in June 2022 before Plaintiffs filed their complaint in March 2023.4 Defendants timely challenged service of the presuit notice “in the first response to the complaint.” § 766.106(2)(b)2., Fla. Stat. (2022).

The amended statute plainly requires the trial court to conduct an evidentiary hearing: “If service is challenged during subsequent litigation, the court must conduct an evidentiary hearing to determine whether the prospective defendant or a person legally related to the prospective defendant was provided notice pursuant to this subsection and, if so, the date of such service.” § 766.106(2)(b)², Fla. Stat. (2022) (emphasis added); see also Fla. R. Civ. P. 1.650(b)(3) (“If, during subsequent litigation, service is challenged in the first response to the complaint, the court must conduct an evidentiary hearing as provided by section 766.106(2)(b)(2), Florida Statutes.”) (emphasis added).

The word “must” in the statute and rule imposes a mandatory duty on the trial court. See Lunsford v. Engle, 312 So. 3d 904, 913 (Fla. 4th DCA 2021) (quoting Johnson v. Johnson, 88 So. 3d 335 (Fla. 2d DCA 2012)).

The trial court departed from the essential requirements of law in failing to follow the statute and rule. The statute expressly provides that the presumption created through service by one of the authorized methods is “rebuttable.” § 766.106(2)(b)1., Fla. Stat. (2022). The court did not afford Defendants an opportunity to rebut the presumption through the evidentiary hearing mandated by the statute.

Defendants are correct that, pursuant to the statute, they are entitled to a stay and a new presuit investigation period if, at the evidentiary hearing, they prove “by the greater weight of the evidence that neither the prospective defendant nor a person legally related to the prospective

defendant at the time of service knew or should have known of the service.” § 766.106(2)(b)2.b., Fla. Stat. (2022).

Contrary to Plaintiffs’ argument, the statute does not require Defendants to proffer evidence to receive an evidentiary hearing.

The trial court departed from the essential requirements of law in failing to conduct the evidentiary hearing required by the statute. Accordingly, the petition is granted, and the trial court’s order denying Defendants’ motion is quashed. The trial court shall conduct the evidentiary hearing required by section 766.106(2)(b) and rule 1.650(b)(3).

We do not reach Defendants’ other arguments: (1) that the trial court failed to make required findings; and (2) that the court should have granted the motion based on the materials submitted to the court.

Petition granted.

KLINGENSMITH, C.J., MAY and CIKLIN, JJ., concur.