FLORIDA SUPREME COURT. Case No.: SC nd DCA Case No.: 2D Lower Tribunal Case No.: G Hillsborough County, Florida Circuit Court

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1 FLORIDA SUPREME COURT MICHAEL F. SHEEHAN, M.D., Petitioner, vs. SCOTT SWEET, Respondent. / Case No.: SC nd DCA Case No.: 2D Lower Tribunal Case No.: G Hillsborough County, Florida Circuit Court PETITIONER'S AMENDED BRIEF ON JURISDICTION ON APPEAL FROM THE SECOND DISTRICT COURT OF APPEAL Richard B. Mangan, Jr., Esquire Rissman, Barrett, Hurt, Donahue & McLain, P.A. One North Dale Mabry 11th Floor Tampa, FL (813) (813) (fax) FBN: Attorney for Petitioner August 23, 2006

2 TABLE OF CONTENTS Table of Authorities...ii I. STATEMENT OF THE CASE AND FACTS...1 II. SUMMARY OF ARGUMENT...1 III. ARGUMENT.. 2 A. Legal basis to invoke discretionary jurisdiction pursuant to Fla. R. App. P (a)(2)(A)(iv)...2 B. The gravamen of this Motion for Discretionary Jurisdiction is that the 2nd DCA decision has created, for the first time, a duty of care owed by a psychiatrist to prevent the unforeseeable and unpredictable event of suicide when the patient is not in a custodial setting in conflict with the decisions of other district courts of appeal...3 IV. CONCLUSION...6 V. APPENDIX...9 i

3 TABLE OF AUTHORITIES Paddock v. Chacko, 522 So. 2d 410 (Fla. 5th DCA 1988) Lawlor v. Orlando, Ph.D., 795 So. 2d 147 (Fla. 1st DCA 2001) Garcia v. Lifemark Hospitals of Florida, 754 So. 2d 48 (Fla. 3 rd DCA 1999).2-5 McCain v. Florida Power Corp., 593 So. 2d RULES Fla.R.App.P (a)(2)(A)(iv)... 1,2,6 ii

4 I. STATEMENT OF THE CASE AND FACTS This is a medical malpractice action that arose out of a suicide attempt by Respondent, Scott Sweet ("Sweet") on November 28, Sweet alleged that Petitioner, Michael F. Sheehan, M.D. ("Dr. Sheehan") fell below the standard of care. Judge Claudia Isom of Hillsborough County Circuit Court granted summary judgment in favor of Dr. Sheehan on May 7, 2004 and final summary judgment was rendered on May 7, Plaintiff filed a Notice of Appeal on May 26, 2004 of the summary judgment. The 2nd DCA by order dated March 24, 2006 reversed the summary judgment and remanded the matter for further proceedings. Petitioner Sheehan timely filed motions for rehearing, rehearing en banc and for certification with the 2nd DCA. Those motions were denied on June 6, 2006 by the 2nd DCA. On July 6, 2006, Petitioner timely filed a notice to invoke discretionary jurisdiction of the Supreme Court. II. SUMMARY OF ARGUMENT Petitioner submits this Court should accept jurisdiction pursuant to Fla. R. App. P (a)(2)(A)(iv) as the 2nd DCA's decision expressly and directly conflicts with the decisions of other District Courts of Appeal. Prior to the 2nd DCA's decision in Sweet, the law in Florida did not create a duty owed by a psychiatrist to prevent the unforeseeable and unpredictable event of suicide when the patient was not in a custodial setting. The 2nd DCA in Sweet for the first time held that such a duty of care does in fact exists. The ruling by the 2nd DCA is in conflict with prior decisions from the 5th, 1st and 3rd DCAs which have all previously held that Florida law does not extend a duty 1

5 of care to the outpatient relationship between a psychotherapist and a patient to prevent suicide attempts. It was undisputed at the time the trial court granted the summary judgment that Sweet was not in a custodial setting vis-a-vi Dr. Sheehan. As such, Florida law as of that time provided that no duty of care to prevent the unforeseeable and unpredictable act of suicide existed running from Dr. Sheehan to Sweet. The 2nd DCA in reversing the summary judgment altered previously established Florida case law from three other District Courts of Appeal. As such, this Court should accept jurisdiction and resolve the express and direct conflict between the District Courts of Appeal. III. ARGUMENT A. LEGAL BASIS TO INVOKE DISCRETIONARY JURISDICTION PURSUANT TO FLA. R. APP. P (a)(2)(A)(iv) Defendant/Petitioner, MICHAEL F. SHEEHAN, M.D. ("Dr. Sheehan"), respectfully submits that this Court has jurisdiction to review the March 24, 2006 opinion from the Florida 2nd District Court of Appeal rendered on June 6, 2006 which reversed the decision granting summary judgment to Dr. Sheehan by the trial court because the 2nd DCA's decision expressly and directly conflicts with the decisions of other district courts of appeal; namely Paddock v. Chacko, 522 So. 2d 410 (Fla. 5th DCA 1988); Lawlor v. Orlando, Ph.D., 795 So. 2d 147 (Fla. 1st DCA 2001); and Garcia v. Lifemark Hospitals of Florida, 754 So. 2d 48 (Fla. 3rd DCA 1999). As such, Dr. Sheehan respectfully submits his motion for discretionary jurisdiction pursuant to Fla. R. App. P (a)(2)(A)(iv). 2

6 B. THE GRAVAMEN OF THIS MOTION FOR DISCRETIONARY JURISDICTION IS THAT THE 2ND DCA DECISION HAS CREATED, FOR THE FIRST TIME, A DUTY OF CARE OWED BY A PSYCHIATRIST TO PREVENT THE UNFORESEEABLE AND UNPREDICTABLE EVENT OF SUICIDE WHEN THE PATIENT IS NOT IN A CUSTODIAL SETTING IN CONFLICT WITH DECISIONS OF OTHER DISTRICT COURTS OF APPEAL In its March 24, 2006 opinion, the 2nd DCA, in reversing the summary judgment, found that Dr. Sheehan owed a duty of care to prevent Scott Sweet's attempt to take his own life. At the time, Sweet was an out-patient who had seen Dr. Sheehan shortly after a prior unsuccessful suicide attempt. The day after the visit with Dr. Sheehan, Sweet took an overdose of drugs in an attempted suicide. Importantly, Sweet was not in a custodial setting; i.e., hospital or mental care facility, at the time of Dr. Sheehan's care at issue. The trial court granted summary judgment premised upon the lack of legal duty to involuntarily hospitalize a patient in order to prevent the patient from suicide attempts. The trial court relied upon the 5th DCA decision in Paddock v. Chacko, 522 So. 2d 410 (Fla. 5th DCA 1988) in which the 5th DCA held as a matter of law that a psychiatrist had no duty to involuntarily hospitalize a patient. Since Dr. Sheehan was treating Sweet on an out-patient basis, there was no legal duty of care to prevent or attempt to prevent Sweet's potential attempted suicide by involuntarily hospitalizing him. The ruling in Paddock v. Chacko is in accord with the decisions of Lawlor v. Orlando, 795 So. 2d 147 (Fla. 1st DCA 2001) and Garcia v. Lifemark Hospitals of Florida, 754 So. 2d 48 (Fla. 3rd DCA 1999). As such, the 5th, 1st and 3rd DCAs have all held that Florida law does not extend a duty of care to the outpatient relationship between a psychotherapist and a patient to prevent suicide attempts. 3

7 It is undisputed as of the time of summary judgment that Sweet was not in a custodial situation vis-a-vis Sheehan. Rather, just as in Paddock and Lawlor, the trial court found that no Florida cases had extended the duty of custodial supervision and care to the out-patient relationship between a psychotherapist and a patient. Further, as noted by the 1st DCA in Lawlor, Florida law has yet to impose a legal duty on a psychotherapist for the suicide (or in the case of Sweet, an attempted suicide) of a client who is being treated in an out-patient situation. Lawlor at 148. Further, the 3rd DCA in Garcia v. Lifemark Hospitals of Florida, 754 So. 2d 48 (Fla. 3rd DCA 1999) held that emergency room personnel were under no obligation to detain a victim of an apparent accident who chooses to leave against medical advice and later kills himself. The Florida courts have uniformly refused to create a duty on a psychotherapist to safeguard a patient from harming himself in a non-custodial setting. As such, the 2nd DCA decision has created an express and direct conflict with decisions of the 5th, 1st and 3rd DCAs which create uncertainty in the law for psychiatrists caring for patients in this state. Prior to the Sweet decision, psychiatrists understood that the legal duty of care in the state of Florida did not extend to a noncustodial situation to prevent and/or protect a patient against the unforeseeable and unpredictable act of suicide. See Paddock at 417. Sweet, for the first time, concluded that a legal duty existed to prevent a patient's suicide that could give rise to a cause of action against the psychiatrist who failed to take the patient into custody. While the 2nd DCA couches the decision in terms of whether there was a breach of the standard of care by Dr. Sheehan, the 2nd DCA has concluded that a duty existed from Dr. Sheehan flowing to Sweet. 4

8 In order for a duty to exist as a matter of law, the court must determine that the facts as alleged in the complaint and established through discovery create a duty recognized by the state of Florida. In this circumstance, the only way that an issue of fact could have been created by the filing of an affidavit by Sweet in opposition to the motion as suggested by the 2nd DCA would have been for a legal duty to exist to prevent a suicide in a non-custodial setting. This is in direct conflict with the decisions in the 5th DCA in Paddock, the 1st DCA in Lawlor and the 3rd DCA in Garcia. Regardless of the manner in which the 2nd DCA or Respondent attempt to couch the issues, the effect of the 2nd DCA decision in Sweet is to create a duty of care owed by Dr. Sheehan (psychiatrist) to his patient (Sweet) in a non-custodial setting to predict and/or prevent Sweet's subsequent suicide attempt. That finding is in direct conflict with Paddock wherein the 5th DCA noted: Paddock at Paddock at 417. As the trial judge observed in his Order, the gravamen of Plaintiff's complaint was Chacko's failure to intervene in a crisis situation by taking the Plaintiff into his custodial care. We are not prepared under the facts of this case to impose such a legal duty on a psychiatrist. We have found no case that has held a doctor liable for the failure to take his patient into custody (footnote omitted). Under the circumstances and facts of this case, we are unwilling to extend the duty of custodial supervision and care to the out-patient relationship between a psychiatrist and a patient. 5

9 Additionally, the 1st DCA in Lawlor noted:...(n)o Florida cases extend the duty of custodial supervision and care to the out-patient relationship between a psychotherapist and a patient. We agree with the trial court's finding that the opinion testimony of plaintiff's expert was insufficient to impose a legal duty on Dr. Orlando in light of other facts and circumstances in this case and in light of relevant Florida law which has yet imposed a legal duty on a psychotherapist for the suicide of a client who is being treated in an out-patient situation. Lawlor at 148 (emphasis added). Both Paddock and Lawlor recognized the requirement as further explained in McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992) wherein this Court noted that the threshold issue of legal duty involved the analysis of foreseeability. Paddock and Lawlor, although decided prior to McCain, essentially noted that the unforeseeable act of a suicide makes the extension of a duty unreasonable under the circumstances for a patient being treated as an out-patient. On the other hand, Sweet for the first time has created such a duty in an out-patient relationship between Dr. Sheehan and Mr. Sweet. For that reason, a direct and express conflict exists between these decisions that should and must be rectified and resolved by this Court. IV. CONCLUSION Defendant/Petitioner, MICHAEL F. SHEEHAN, M.D., respectfully requests that this Court accept jurisdiction of this matter pursuant to Fla.R.App.P (a)(2)(A)(iv) on the basis of its express and direct conflict with the decisions of other district courts in the state of Florida. 6

10 CERTIFICATE OF SERVICE I HEREBY certify that a true and correct copy of the foregoing was furnished via regular U.S. mail to David G. Eaton, Esq., Eaton & Powell, 304 S. Plant Ave., Tampa, FL 33606, Philip M. Burlington, Esquire, Philip M. Burlington, P.A., 2001 Palm Beach Lakes Blvd., Ste. 205, West Palm Beach, FL 33409, this day August, RBM/ns RICHARD B. MANGAN, JR., ESQUIRE Florida Bar No.: Rissman, Barrett, Hurt, Donahue & McLain, P.A. Tampa Commons One North Dale Mabry Highway 11TH Floor Tampa, Florida Telephone: (813) Facsimile: (813) Attorney for Defendant 7

11 CERTIFICATE OF COMPLIANCE I hereby certify that Petitioner's Amended Jurisdictional Brief with Appendix is in compliance with Florida Rule of Appellate Procedure RBM/ns RICHARD B. MANGAN, JR., ESQUIRE Florida Bar No.: Rissman, Barrett, Hurt, Donahue & McLain, P.A. Tampa Commons One North Dale Mabry Highway 11TH Floor Tampa, Florida Telephone: (813) Facsimile: (813) Attorney for Defendant 8

12 IV. APPENDIX Second District Court of Appeal decision Sweet v. Sheehan. 9

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