Legal Opinion: The Dr. Schneider “Class Action Law Suit” Can’t ProceedPosted 29 Nov 2015 by John Phillips
The Dr. Schneider “Class Action Law Suit” Can’t Proceed
On May 7, 2015, I was asked to comment on the “class action law suit” that had been filed against Jacksonville pediatric dentist Howard S. Schneider, DDS. I said that it was not a viable suit because:
◊ (1) it had been filed in the name of children;
◊ (2) the case law required every single victim of Dr. Schneider serve him with a notice of claims with a contradicting statement from an expert under the medical malpractice law (even if the victim was not suing for medical malpractice); and
◊ (3) the Complaint simply went too far.
Schneider was compared in the Complaint and on television shows by Mr. Sarris to the Marquis de Sade, whose erotic works inspired the term “sadism” for his depiction of morbid sexual cruelty and he was incarcerated in various prisons and in an insane asylum for about 32 years of his life. You can’t do that. Here is a link to our interview about that- http://www.news4jax.com/news/class-action-suit-filed-against-pediatric-dentist/32874030.
We expect this lawsuit will be dismissed. There is a reason I didn’t file suit. Farah & Farah and other firms didn’t either. There are three or four lawyers (or more) with these cases- none have filed suit. It’s because not only can you NOT file suit, and if you do, as a lawyer, you might get in trouble.
Medical Malpractice versus Intentional Tort- what’s the difference?
Medical Malpractice, at its essence, is where a medical professional causes harm while doing his/her job in the medical profession. Even if they intended the harm, as long as it was in the process of performing a medical service, it is medical malpractice. If a mad pediatrician cuts off a baby’s penis -whether by accident or because she was tired of men abusing her or hated the father of the child- it starts as a medical malpractice case because it happened while performing a medical service. It also may be a criminal case, which is entirely separate.
Anyone and everyone injured by Dr. Schneider over the past two years may have a medical malpractice case. Insurance should cover Dr. Schneider for the damages in these cases and he may also be personally or professionally liable above insurance. These victims may also have other claims which are not covered by insurance because of the nature of the harm done to these children. For those older cases, the victims may ONLY have cases for intentional tort (like abuse, battery or assault). The statute of limitations is longer and insurance will not usually cover these incidents.
However, Florida law protects doctors and dentists. We all want the best ones in our city or state. So, to give good doctors a little better chance to avoid lawsuits, the medical malpractice laws compel any victim who has been harmed by a medical professional to proceed OUT of court at first, even if they aren’t claiming medical malpractice or medical negligence. The only exception is where there was a sexual assault or the harm clearly arose outside of the rendering of medical services- NOT medically.
So, even if you want to just proceed for battery, assault, false imprisonment or abuse, you still have to abide by the medical malpractice pre-suit requirements before filing those claims. The doctors and dentists get to preview the lawsuit and decide if they were right or wrong. Another doctor or dentist must also say they were wrong and the victim or the victim’s lawyer must pay for that. Even if your case is “too late” under medical malpractice laws, you still must follow medical malpractice procedure to make a claim against or sue a doctor.
Respectfully, Mr. Sarris did not follow these procedures. Further, he made statements which even the judge questioned “who they were directed to” while holding up the Complaint for all to see. Simply put, this case cannot go on UNTIL that process has been completed. Court time has been wasted.
Bringing a case on behalf of minors
The case could not be brought on behalf of minors alone. The law is clear. A case is a type of contract. A minor can’t vote, sign a contract or file a lawsuit. They need a parent or guardian to start a lawsuit for them.
Class Action or not?
Mr. Sarris filed this action as a “class action lawsuit.” That means that certain victims control the entire lawsuit for victims everywhere and that the victims may not even have to hire their own lawyer or make their own claims. The law judges these things with scrutiny and makes sure (1) the type case is right, (2) the person bringing the case is right, (3) the lawyer is right and experienced, and (4) that one person can truly speak for all. Here, it is pretty clear that this case is NOT a class action case.
We’ve said from the beginning that this was virtually impossible and that victims needed to hire their own lawyers. Florida law is clear that victims who have been harmed by medical professionals must proceed individually and do so out of court at first. The class action scheme isn’t even set up to handle these cases in light of chapter 766 requirements.
Judge Blazs and Attorney Ramsey pointed these issues out, informing Mr. Sarris that the claim might not be appropriate as a class action and might be premature. As we said, Mr. Sarris argued that this was a “case of first impression,” meaning the first of its kind. It is not. Courts have precedent of other cases even though the amount of claims here far exceed any we have seen. A lawyer cannot cavalierly try to make his or her own law or misread the law as it stands.
Motion for Sanctions (766.206)
The law (766.206) states, “If the court finds that an attorney for the claimant… filed a medical negligence claim without first mailing such notice of intent which complies with the reasonable investigation requirements… the court shall submit its finding in the matter to The Florida Bar for disciplinary review of the attorney.”
Dr. Schneider’s lawyers told the judge that it was his duty, essentially, to report Mr. Sarris to the Florida Bar for filing a lawsuit that was not warranted under Florida law. Schneider’s lawyer said, “I have never in 28 years seeing a complaint with these types of personal attacks…. I hate to do such a thing, I have never asked a judge in 28 years to do that, but this was a clear violation of the statute.”
Motion for Sanctions (57.105)
The law (57.105) states, “Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court… was not supported by the material facts necessary to establish the claim or defense; or… would not be supported by the application of then-existing law to those material facts.”
This law is to prevent frivolous lawsuits. Few doubt Dr. Schneider deserves his day in Court, but there is a right way and a wrong way to do it. The law must support your case and the facts you allege must be supported by material facts. The law doesn’t support this Complaint. The facts -comparing Schneider to someone who spent 32 years in prisons and in an insane asylum- as alleged in the Complaint and on national television are also troublesome. Mr. Sarris even admitted that some of these were designed to get attention. That isn’t the purpose of a lawsuit, nor was it necessary.
We will see what happens. This is a sharp, fair judge who knows medical malpractice case law, as his firm handled it before he became a judge. We’d expect to see a ruling ultimately dismissing this complaint entirely. The victims could certainly start all over after they complied with the law- to the extent that this delay not cost them their right to file suit.
General Information About Dental Abuse Civil Cases:
- ◊ What is Dental Abuse and Why Does it Exist?
- ◊ Medical & Dental Malpractice and the Mandatory Pre-Suit Period
- ◊ Dental Abuse Statutes of Limitation in Florida
- ◊ Dental Abuse Cases: Class Action in Florida or Not?
- ◊ 5 Simple Tips on How to Choose a Medical or Dental Malpractice Lawyer
Case Against Howard S. Schneider:
- ◊ Frequently Asked Questions and Update on Howard Schneider Cases
- ◊ Statements Made by Jacksonville Pediatric Dentist Howard S. Schneider, DDS
- ◊ Download the 36 Page Arrest Warrant Affidavit Here
- ◊ Jacksonville Dentist Howard Schneider’s Dental Assistant Arrested / Booked
- ◊ Jacksonville Dentist Schneider Medicaid Fraud / Malpractice Claim Update
- ◊ Jacksonville Dentist Howard S. Schneider Uses Vehicle to Intimidate?
- ◊ May 2015 – The Case(s) Against Schneider: Explained
- ◊ Legal Opinion: The Dr. Schneider “Class Action Law Suit” Can’t Proceed
National News Stories About Schneider Case:
- ◊ National News Stories Regarding Howard S. Schneider
- ◊ Dentist the Menace Blog
- ◊ Insurance Journal Discusses Schneider Case
- ◊ U.S. Senators Release Report on Dental Clinics That Skirt Regulations
- ◊ Similar Case (Multi-State Class Action) – Insurers for troubled dental chain Small Smiles’ to pay out $39 million in tentative settlement
- ◊ Press Release by Florida Attorney General on Schneider Case
- ◊ Howard Schneider In His Own Words: The Newsletters
- ◊ Download the American Academy of Pediatric Dentistry Guidelines here
- ◊ 2015 Florida Law Regulating Dentists
- ◊ Order Relinquishing Florida Dental License (Schneider)
The Law Offices of John Phillips are based in Jacksonville and Jacksonville Beach, Florida, but John is licensed in Florida, Georgia and Alabama and before the U.S. Supreme Court. We will consult wherever injustice lives. In addition to personal injury and wrongful death, our firm handles family law matters and select criminal defense cases. You can contact us at [email protected].