IN THE SUPREME COURT OF FLORIDA CASE NO. SC KENNETH W. BACKSTRAND, M.D. and KENNETH W. BACKSTRAND & ASSOCIATES, M.D., P.A., Petitioners, vs.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC KENNETH W. BACKSTRAND, M.D. and KENNETH W. BACKSTRAND & ASSOCIATES, M.D., P.A., Petitioners, vs. LUCY THOMAS, Individually, and as Personal Representative of the Estate of MILDRED THOMAS, Deceased, Respondent. ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, SECOND DISTRICT CASE NO. 2D PETITIONERS, KENNETH BACKSTRAND, M.D. and KENNETH BACKSTRAND, M.D., P.A.'S, BRIEF ON JURISDICTION Benito H. Diaz BENITO H. DIAZ, P.A South Le Jeune Road, Ste Coral Gables, FL Telephone: (305) Facsimile: (305) Trial Counsel for Petitioners Backstrand and the P.A. Mark Hicks Irene Porter Dinah Stein HICKS, PORTER, EBENFELD & STEIN, P.A. 799 Brickell Plaza, 9th Floor Miami, FL Telephone: (305) Facsimile: (305) Appellate Counsel for Petitioners Backstrand and the P.A.

2 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 4 ARGUMENT... 5 I. Conflict with Mizrahi/Garber II. Conflict with this Court's Decisions on the Tort of Intentional Infliction of Emotional Distress and Tortious Interference with a Dead Body A. Conflict with Eastern Airlines, Inc. v. King and its Progeny B. Conflict with Gonzalez v. Metro. Dade County Pub. Health Trust C. Conflict with Metro. Life Ins. Co. v. McCarson and its Progeny CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 TABLE OF AUTHORITIES PAGE State Cases Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005)... 5 Dependable Life Ins. Co. v. Harris, 510 So. 2d 985 (Fla. 5th DCA 1987) Eastern Airlines, Inc. v. King, 557 So. 2d 574 (Fla. 1990)... 4, 7 Gonzalez v. Metro. Dade County Pub. Health Trust, 651 So. 2d 673 (Fla. 1985)... 4, 5, 8, 9 Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277 (Fla. 1985)... 4, 9 Mizrahi v. North Miami Medical Center/Garber v. Snetman, 761 So. 2d 1040 (Fla. 2000)... 4, 6 Thomas v. Hospital Bd. of Directors of Lee County, 41 So. 3d 246 (Fla. 2d DCA 2010)... 1, 2, 3, 4 Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991)... 7 Other Authorities , Fla. Stat.... 1, 4, 6, 9 ii

4 STATEMENT OF THE CASE AND FACTS The following facts are taken from the face of the district court's opinion. Mildred Thomas, who was survived only by adult children, died at Lee Memorial Hospital after having hip surgery and going into cardiac arrest. Lucy Thomas, as personal representative of the estate, brought a wrongful death medical malpractice action, alleging that the anesthesiologist, Dr. Backstrand, and Nurse Hughes negligently gave her a lethal overdose of a medication (Esmolol) to treat her postsurgical increase in heartbeat and blood pressure. Thomas v. Hospital Bd. of Directors of Lee County, 41 So. 3d 246, (Fla. 2d DCA 2010). As a matter of law, the adult children were precluded by section (8), Florida Statutes, from seeking damages for emotional pain and suffering in their wrongful death claim. Id. at 250. Nonetheless, Lucy Thomas sought emotional distress damages for the purported torts of intentional infliction of emotional distress/outrage and intentional misrepresentation. She alleged Dr. Backstrand, Nurse Hughes, and Nurse Smith "agreed to conceal the real cause of Mildred Thomas's death and to instead notify her family that she died from the 'stress of surgery.'" She further alleged that Dr. Backstrand and these two nurses listed the cause of the cardiac arrest as "stress of surgery" in computer records and in the report to the medical examiner. However, the real cause of the cardiac arrest was reported through the hospital's incident reporting procedure. As to three other 1

5 defendants, Dr. Arnall, Nurse Jackson, and Mr. McCurdy, she alleged they learned of the overdose from the incident reporting procedure, "but they failed to disclose it." Id. at 249. Based on a report listing the cause of death as resulting from natural causes, the medical examiner did not conduct a complete autopsy and the body was released to the family for burial. The medical examiner later learned of the accidental overdose, and demanded that the body be returned for a full autopsy. Ms. Thomas learned of the accidental overdose and the medical examiner's requirement when she received a phone call from the hospital's attorney and the medical examiner during the funeral service. Id. at 249. The trial court dismissed the claim for intentional infliction of emotional distress for failure to state a claim, and struck the claim for purely emotional distress damages from the misrepresentation claim. Id. at Ms. Thomas later conceded the only damages she sought for the misrepresentation claim were nonpecuniary and, at Ms. Thomas's request, the trial court entered a final summary judgment so she could appeal. Id. at 251. The district court acknowledged that it had previously affirmed, without opinion, the dismissal of the same claims by Ms. Thomas's siblings, Id. at 251, but nonetheless reversed in this case. It held that a "purported cover-up of the real cause of her death" and "making false statements" about the cause of death create an independent cause of action for a decedent's 2

6 adult child to recover emotional distress damages, which are otherwise unavailable in a medical malpractice case. Id. at , 256. Despite the absence of any allegations that any defendant intended to disrupt the funeral or interment, or even knew it would occur, the district court reasoned that because the conduct "led to 1 the interruption of Mildred Thomas's funeral and the return of her body for a second, more thorough autopsy [it] rises to the level of atrocious and utterly intolerable behavior which cannot be condoned in a civilized community." Id. The district court further reasoned that "in a situation where a person's loved one has died, it would be apparent to anyone that the person would be susceptible to emotional distress and, therefore, that the action of providing false information concerning the loved one's cause of death meets the standard for a claim of outrage (intentional infliction of emotional distress)." Id. The district court's opinion is unclear on the allegation of providing false information that the cardiac arrest was caused by "stress of surgery." In the beginning, it states that three of the defendants purportedly agreed to conceal and listed "stress of surgery" "in computer records, in the report to the medical examiner, and in discussions with other physicians" and the remaining three defendants "failed to disclose" the overdose when they learned of it through the hospital's incident reporting procedure. Id. at 249. Later, in the opinion the court 1 All underlined emphasis herein is supplied. 3

7 refers to both a "purported cover-up" and "the provision of false information to her family." Id. at SUMMARY OF ARGUMENT The district court's decision conflicts with Mizrahi v. North Miami Medical Center/Garber v. Snetman, 761 So. 2d 1040 (Fla. 2000), which held that section (8), Florida Statutes, constitutionally applies to preclude an adult child of the decedent from "recovery for intentional infliction of emotional distress." Id. at It also irreconcilably conflicts with this Court's decisions in Eastern Airlines, Inc. v. King, 557 So. 2d 574 (Fla. 1990) and Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277 (Fla. 1985), and their progeny, which hold that in order to recover pure emotional distress damages the emotional distress must be inflicted intentionally or recklessly, and by outrageous conduct, and Gonzalez v. Metro. Dade County Pub. Health Trust, 651 So. 2d 673 (Fla. 1985), which holds that emotional distress must be inflicted by an intentional or reckless interference with interment. 2 The undisputed record demonstrates that no one provided any false information, or made false statements, to the family. Plaintiff's deposition clarified she is not alleging that any post-death false statements were made to her or her family. (R12:2066, 2069; R11:2007). The allegation referred to Dr. Backstrand's initial note in the medical chart, which was obtained by the medical examiner's office. (R11: , 1849). The rest of her claim is based on an alleged failure to disclose. 4

8 The district court misapplied 3 King and Gonzalez by permitting recovery for an alleged failure to disclose an accidental overdose (alleged malpractice) simply because it allegedly "led to the interruption of Mildred Thomas's funeral and the return of her body for a second, more thorough autopsy," when there was no intent to disrupt a funeral, and no knowledge that it would occur. The district court also misapplied McCarson by permitting recovery for emotional distress due to a disrupted funeral/interment when there was absolutely no conduct outrageous or otherwise directed toward the disruption of a funeral or interment. Moreover, the alleged conduct, failure to disclose an accidental overdose to a deceased patient's family, is not atrocious and utterly intolerable. This Court should exercise its discretion to resolve the conflicts because the district court's opinion creates a new tort for failing to disclose malpractice to the family of a deceased patient in contravention of the public policy set by statute, which precludes adult children from recovering emotional distress damages in medical malpractice cases. ARGUMENT I. Conflict with Mizrahi/Garber. In Mizrahi v. North Miami Medical Center/Garber v. Snetman, 761 So. 2d 3 Misapplication of decisional law creates conflict jurisdiction. See Aguilera v. Inservices, Inc., 905 So. 2d 84, 87 (Fla. 2005). 5

9 (Fla. 2000), this Court held that section (8), Florida Statutes, constitutionally precludes the adult child of a decedent from recovering emotional distress damages through the tort of intentional infliction of emotional distress. This Court affirmed a summary judgment for the defendants based on the following facts: The undisputed facts as found by the trial court in the companion case, Garber v. Snetman, are as follows: Plaintiff instituted this action against several physicians and a hospital seeking recovery for intentional infliction of emotional distress and for mental pain and suffering. On March 26, 1994, Frances Golub was admitted to Mount Sinai Medical Center for treatment following a suspected stroke. On April 13, 1994, Mrs. Golub underwent surgery to remove a suspected cancerous tumor from her pelvis. She died on May 8, Mrs. Golub... was survived only by Lynn Garber, her thirtythree-year-old daughter, the plaintiff in this action. The claims for which Ms. Gaber seeks recovery are governed by Chapters 768 and 766 of the Florida Statutes. She seeks damages for mental pain and suffering and for loss of support and services in her individual capacity, and for the net accumulations on behalf of her mother's estate. Id. at The district court's decision here conflicts with Mizrahi/Garber by allowing recovery of damages precluded by statute through the tort of intentional infliction of emotional distress. II. Conflict with this Court's Decisions on the Tort of Intentional Infliction of Emotional Distress and Tortious Interference with a Dead Body. The decision irreconcilably conflicts with this Court's established decisional law which does not permit recovery of emotional distress damages, when there is 6

10 no physical impact or injury, unless the emotional distress is inflicted intentionally or recklessly, and by outrageous conduct, or by an intentional or reckless interference with a dead body or its interment. A. Conflict with Eastern Airlines, Inc. v. King and its Progeny. It is well settled that in order to recover for intentional infliction of emotional distress, the actor must either intend his conduct to cause emotional distress, know that emotional distress is certain or substantially certain to result from his conduct, or act recklessly in deliberate disregard of a high degree of probability that the emotional distress will follow. As this Court explained in Eastern Airlines, Inc. v. King, 557 So. 2d 574, 576 (Fla. 1990), "The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It also applies where he acts reckless, as that term is defined in 500, in deliberate disregard of a high degree of probability that the emotional distress will follow." (quoting Restatement (Second)of Torts 46, comment i). See also Williams v. City of Minneola, 575 So. 2d 683, 692 (Fla. 5th DCA 1991) ("One who recklessly and outrageously inflicts emotional distress can be liable if he knows that emotional distress is certain or substantially certain to result from his act"). 7

11 In King, this Court held that when the facts alleged "rise no higher than negligence," the Plaintiff fails to state a claim for intentional infliction of emotional distress. Id. at 576. The district court's decision conflicts with King and misapplies the law by reasoning that a claim was stated simply because the alleged cover up "led to the interruption of Mildred Thomas's funeral and the return of her body for a second, more thorough autopsy," when there are no facts which would even infer that Dr. Backstrand intended an interruption of the funeral, had knowledge this event was certain or substantially certain to result from the alleged act, or deliberately disregarded any facts which would make an interruption of a funeral a high degree of probability. In fact, Plaintiff alleged the opposite that there was a conspiracy not to disclose an accidental overdose, so as to avoid an autopsy, which would pathologically detect the overdose. B. Conflict with Gonzalez v. Metro. Dade County Pub. Health Trust. In Gonzalez v. Metro. Dade County Pub. Health Trust, 651 So. 2d 673, (Fla. 1995), this Court rejected recovery for pure emotional distress, even when it results from direct mishandling of a dead body or interference with interment, in the absence of intentional or reckless mishandling or interference. As this Court explained, "there is no accurate method of separating the natural grief resulting from the death of a loved one from the additional grief suffered from the negligent mishandling of a body," and permitting recovery in the absence of 8

12 intentional or reckless interference would have too far reaching consequences. Id. at The district court's decision has the same unacceptable far reaching consequences by allowing recovery of emotional distress damages prohibited by section (8), Florida Statutes, when there is no accurate way to separate the grief from a malpractice death from the grief of the delay in interment allegedly resulting from the failure to disclose that malpractice. C. Conflict with Metro. Life Ins. Co. v. McCarson and its Progeny. The district court also misapplied Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277 (Fla. 1985), which holds that the emotional distress must be caused by conduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community," Id. at 278-9, for two reasons. First, Plaintiff claimed emotional distress due to the disruption of interment of her mother's body, and there was no conduct outrageous or otherwise directed toward disruption of the funeral or interment. Second, the failure to disclose an accidental overdose to a deceased patient's family is not atrocious and utterly intolerable. Plaintiff did not claim emotional distress from being told, or believing, that her mother's cardiac arrest was caused by the stress of surgery, as opposed to an accidental overdose; and conceded she could not recover emotional distress from the death itself. Nonetheless, the district court relied on comment "f" of the 9

13 Restatement (Second) of Torts, which provides that "[t]he extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress," "when the actor proceeds in the face of such knowledge, where it would not be so if he did not know." 41 So. 3d at 256. The district court reasoned that someone whose loved one has died would be susceptible to emotional distress, so that "providing false information concerning the loved one's cause of death meets the standard." Id. This was a misapplication of the law because it is an essential element of the tort that the outrageous conduct "must have caused the emotional distress." Dependable Life Ins. Co. v. Harris, 510 So. 2d 985, 986 (Fla. 5th DCA 1987) (nasty and vicious verbal attacks on plaintiff, calling him a cheat and fraud and threatening to begin governmental fraud investigation while plaintiff was in great pain and too physically ill to work caused severe mental depression and distress). Here, it was the disruption of interment which caused the claimed distress; not being told or believing the death was free from error. CONCLUSION Because the decision contravenes the public policy set by the legislature, misapplies decisional law, and creates a new tort, this Court should exercise its discretion to resolve the conflicts. 10

14 Respectfully submitted, Benito H. Diaz BENITO H. DIAZ, P.A South Le Jeune Road, Ste Coral Gables, FL Telephone: (305) Facsimile: (305) Trial Counsel for Petitioners Backstrand and the P.A. Mark Hicks Irene Porter Dinah Stein HICKS, PORTER, EBENFELD & STEIN, P.A. 799 Brickell Plaza, 9th Floor Miami, FL Telephone: (305) Facsimile: (305) Appellate Counsel for Petitioners Backstrand and the P.A. BY: s/ Irene Porter IRENE PORTER Florida Bar No.: CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail on this 27 th day of September, 2010 to: William deforest Thompson, Jr., Esq., William deforest Thompson, Jr., P.A., Counsel for Respondent, 2051 McGregor Boulevard, Ft. Myers, FL 33901; Douglas B. Lumpkin, Esq., Lumpkin & Haskins, P.A., Counsel for Defendants, Hospital Board of Directors of Lee County,Lee Memorial Hospital, Inc., Hughes, Smith, Arnall and McCurdy, 1718 Main Street, Suite 100A, Sarasota, FL 34236; and Richard R. Garland, Esq., Dickinson & Gibbons, P.A., Appellate Counsel for 11

15 Defendants, Hospital Board of Directors of Lee County, Lee Memorial Hospital, Inc., Hughes, Smith, Arnall and McCurdy, 401 N. Cattlemen Rd., Ste. 300, Sarasota, FL BY: s/ Irene Porter IRENE PORTER Florida Bar No.: CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing initial brief complies with the font requirements of Rule 9.210(a)(2). It is typed in Times New Roman 14-point font. BY: s/ Irene Porter IRENE PORTER Florida Bar No.: