NME Hospitals, Inc. v. Azzariti , 573 So. 2d 173 ( 1991 )

573 So. 2d 173 (1991)

NME HOSPITALS, INC., a Corporation D/B/a Seven Rivers Community Hospital, Petitioner,
v.
Dominick AZZARITI and Domenica Azzariti, His Wife, Respondents.

No. 90-03087.

District Court of Appeal of Florida, Second District.

January 16, 1991.

Thomas Saieva of Saieva and Walsh, P.A., Tampa, for petitioner.

John McLaughlin of Wagner, Cunningham, Vaughan & McLaughlin, P.A., Tampa, for respondents.

PER CURIAM.

The petitioner, the defendant in a pending medical malpractice action, seeks a writ of certiorari to review an order of the circuit court denying its motion to dismiss. The respondents filed their complaint without first complying with the mandatory requirements of sections 766.104 and 766.106, Florida Statutes (1989). Compliance with the statute is a condition precedent to maintaining a suit against a health care provider, and the parties agree that there was no compliance with the statute. The respondents' contention that compliance is not required as the suit alleges causes of action based on strict or products liability theories and does not allege medical malpractice is of no avail. A hospital that utilizes an alleged defective product only in the course of its primary function of providing medical services is not subject to an action in strict liability where the professional services could not have been rendered without using the product. North Miami General Hospital v. Goldberg, 520 So. 2d 650 (Fla. 3d DCA 1988).

Accordingly, we find that the circuit court's order departed from the essential requirements of law. The petition for writ of certiorari is granted, and the case is remanded to the circuit court for proceedings consistent with this opinion.

SCHOONOVER, C.J., and CAMPBELL and THREADGILL, JJ., concur.