IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO: SC

Transcription

1 Electronically Filed 09/19/ :26:36 PM ET RECEIVED, 9/19/ :28:39, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF THE STATE OF FLORIDA CASE NO: SC CHARLES H. BURNS, as Personal Representative of the ESTATE OF ENRIQUE CASASNOVAS, deceased, for the benefit of the ESTATE OF ENRIQUE CASASNOVAS, Petitioner, vs. PALMS WEST HOSPITAL LIMITED PARTNERSHIP, a Foreign Limited Partnership, d/b/a PALMS WEST HOSPITAL f/k/a COLUMBIA PALMS WEST HOSPITAL LIMITED PARTNERSHIP, a Foreign Limited Partnership, d/b/a PALMS WEST HOSPITAL, Respondent. On appeal from the District Court of Appeal of the State of Florida, Fourth District, Case No. 4D ; Lower Case No CA XXXX MB AB, in the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida. RESPONDENT'S ANSWER BRIEF ON THE MERITS BILLING, COCHRAN, LYLES, MAURO & RAMSEY, P.A Forum Place, Suite 400 West Palm Beach, FL Telephone: (561) Facsimile: (561) dmk@bclmr.com wpb pleadings@bclmr.com Counsel for Respondent HICKS, PORTER, EBENFELD & STEIN, P.A. 799 Brickell Plaza, 9th Floor Miami, FL Telephone: (305) Facsimile: (305) mhicks@mhickslaw.com jvanderklok@mhickslaw.com eclerk@mhickslaw.com Additional Appellate Counsel for Respondent

2 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES...iii vii PREFACE... viii INTRODUCTION...1 STATEMENT OF THE CASE AND THE FACTS...2 A. Palms West's treatment of Mr. Casasnovas....2 B. Petitioner's lawsuit arising out of the care and treatment received by Mr. Casasnovas at Palms West...3 C. Allegations in Petitioner's Third Amended Complaint...5 D. Common law certiorari proceedings in the Fourth District....7 SUMMARY OF ARGUMENT...8 STANDARD OF REVIEW...10 ARGUMENT...11 I. THE FOURTH DISTRICT CORRECTLY RULED THAT PETITIONER'S CLAIMS AROSE FROM MEDICAL CARE OR SERVICES RENDERED OR FAILED TO HAVE BEEN RENDERED TO MR. CASASNOVAS...11 A. Petitioner's Claims Arise Out of the Failure to Render Medical Care or Services Because They Are Derivative of the Alleged Medical Negligence of the Defendant Physicians...13 B. The Pre suit Notice and Investigation Procedures in the Medical Malpractice Act are Not Limited to Negligence Claims...26 i

3 C. Even if Petitioner's Test Were Correct, Palms West's Retention and Review of the Defendant Physicians is Subject to a Professional Standard of Care...29 D. Petitioner Was Not Denied Access to the Courts II. THE FOURTH DISTRICT DID NOT ABUSE ITS DISCRETION IN EXERCISING ITS CERTIORARI JURISDICTION AND HOLDING THAT THE TRIAL COURT DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF THE LAW IN DENYING PALMS WEST'S MOTION TO DISMISS FOR FAILURE TO PRE SUIT...38 CONCLUSION...43 CERTIFICATE OF SERVICE...45 CERTIFICATE OF COMPLIANCE...45 ii

4 TABLE OF AUTHORITIES Cases PAGE Acosta v. HealthSpring of Fla., Inc., 118 So. 3d 246 (Fla. 3d DCA)... 23, 24 Adams v. Griffis, 620 S.E.2d 575 (Ga. Ct. App. 2005) Baptist Med. Ctr. of Beaches, Inc. v. Rhodin, 40 So. 3d 112 (Fla. 1st DCA 2010)...39 Blom v. Adventist Health Sys./Sunbelt, Inc., 911 So. 2d 211 (Fla. 5th DCA 2005) , 40 Burke v. Snyder, 899 So. 2d 336 (Fla. 4th DCA 2005)... 14, 17, 30, 31, 38 Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028 (Fla. 1st DCA 2002)...16 Cedars Med. Ctr., Inc. v. Ravelo, 738 So. 2d 362 (Fla. 3d DCA 1999)...16 Cen. Fla. Reg'l Hosp. v. Hill, 721 So. 2d 404 (Fla. 5th DCA 1998)...39 Citizens Property Ins. Corp. v. San Perdido Ass'n, Inc., 104 So. 3d 344 (Fla. 2012)...42 Columbia/JFK Med. Ctr. Ltd. v. Sangounchitte, 977 So. 2d 639 (Fla. 4th DCA 2008) , 36 Combs v. State, 436 So. 2d 93 (Fla. 1983)... 10, 11 Corbo v. Garcia, 949 So. 2d 366 (Fla. 2d DCA 2007)...27 Dr. Navarro's Vein Ctr. of Palm Beach, Inc. v. Miller, 22 So. 3d 776 (Fla. 4th DCA 2009)... 34, 35 Footstar Corp. v. Doe, 932 So. 2d 1272 (Fla. 2d DCA 2006)...16 iii

5 Gamez v. Brevard County, Florida, No. 606CV 716ORL 22DAB, 2006 WL (M.D. Fla. Sept. 6, 2006), report and recommendation adopted, 2006 WL (M.D. Fla. Sept. 26, 2006)...22 Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541 (Tex. 2004)... 17, 33 Goldman v. Halifax Med. Ctr., Inc., 662 So. 2d 367 (Fla. 5th DCA 1995)...37 Gouveia v. Phillips, 823 So. 2d 215 (Fla. 4th DCA 2002) Grobman v. Posey, 863 So. 2d 1230 (Fla. 4th DCA 2003)...14 Gutman v. Quest Diagnostics Clinical Laboratories, Inc., 707 F. Supp. 2d 1327 (S.D. Fla. 2010)...17 Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995)...10 Horowitz v. Plantation General Hosp. Ltd. Partnership, 959 So. 2d 176 (Fla. 2007)... 15, 16 Howard Reg'l Health Sys. v. Gordon, 952 N.E.2d 182 (Ind. 2011)... 17, 33 Indian River Mem'l Hosp. v. Browne, 44 So. 3d 237 (Fla. 4th DCA 2010)...34 Ingersoll v. Hoffman, 589 So. 2d 223 (Fla. 1991)...37 Insinga v. LaBella, 543 So. 2d 209 (Fla. 1989)... 15, 16, 30 Integrated Health Care Services, Inc. v. Lang Redway, 840 So. 2d 974 (Fla. 2002)... 19, 20, 31 Jensen v. Leonard, No. A , 2009 WL (Minn. Ct. App. Oct. 20, 2009)...33 Lane v. Health Options, Inc., 796 So. 2d 1234 (Fla. 4th DCA 2001)...24 iv

6 Lifesouth Cmty. Blood Centers, Inc. v. Fitchner, 970 So. 2d 379 (Fla. 1st DCA 2007)...36 Maksad v. Kaskel, 832 So. 2d 788 (Fla. 4th DCA 2002)...15 Martinez v. Lifemark Hosp. of Fla., Inc., 608 So. 2d 855 (Fla. 3d DCA 1992)... 17, 31, 35, 38 McVay v. Rich, 874 P.2d 641 (Kan. 1994)...19 Neff v. Johnson Mem'l Hosp., 889 A.2d 921 (Conn. Ct. App. 2006)...33 NME Properties, Inc. v. McCullough, 590 So. 2d 439 (Fla. 2d DCA 1991)... 19, 20 Ohannesian v. Butterworth Hosp., No , 2004 WL (Mich. Ct. App. Nov. 16, 2004)...33 O'Shea v. Phillips, 746 So. 2d 1105 (Fla. 4th DCA 1999)...30 Palm Springs Gen. Hosp., Inc. v. Valdes, 784 So. 2d 1151 (Fla. 3d DCA 2001)...33 Pate v. Threlkel, 661 So. 2d 278 (Fla. 1995)...34 Paulk v. Nat'l Med. Enterprises Inc., 679 So. 2d 1289 (Fla. 4th DCA 1996)... 27, 28, 38 Puentes v. Tenet Hialeah Healthsystem, 843 So. 2d 356 (Fla. 3d DCA 2003)... 21, 27 Rell v. McCulla, 101 So. 3d 878 (Fla. 2d DCA 2012)...39 Rodriguez v. Miami Dade County, 117 So. 3d 400 (Fla. 2013)...42 Scelta v. Delicatessen Support Services, Inc., 57 F. Supp. 2d 1327 (M.D. Fla. 1999)...16 Scherer v. Rigsby, 24 So. 3d 561 (Fla. 4th DCA 2009)...40 v

7 Sistrunk v. Hoshall, 530 So. 2d 935 (Fla. 1st DCA 1988)...26 Solomon v. Well Care HMO, Inc., 822 So. 2d 543 (Fla. 4th DCA 2002)...24 S. Baptist Hosp. of Fla., Inc. v. Ashe, 948 So. 2d 889 (Fla. 1st DCA 2007)...28 S. Miami Hosp., Inc. v. Perez, 38 So. 3d 809 (Fla. 3d DCA 2010)... 35, 39 St. Anthony's Hosp., Inc. v. Lewis, 652 So. 2d 386 (Fla. 2d DCA 1995)... 17, 34 35, 38 Strubhart v. Perry Mem'l Hosp. Trust Auth., 903 P.2d 263 (Okla. 1995)...17 Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528 (Fla. 2005)...12 Tenet S. Florida Health Sys. v. Jackson, 991 So. 2d 396 (Fla. 3d DCA 2008) Tunner v. Foss, 655 So. 2d 1151 (Fla. 5th DCA 1995)... 22, 24, 25, 26 Weinstock v. Groth, 629 So. 2d 835 (Fla. 1993)... 18, 19, 20, 28, 42 W. Florida Reg'l Med. Ctr., Inc. v. See, 79 So. 3d 1 (Fla. 2012)...10 Williams v. Oken, 62 So. 3d 1129 (Fla. 2011)... 10, 40, 41 Winona Mem'l Hosp., Ltd. Partnership v. Kuester, 737 N.E.2d 824 (Ind. Ct. App. 2000) , 33 Wright v. AmSouth Bancorporation, 320 F.3d 1198 (11th Cir. 2003)...14 Yun Hee So v. Sook Ja Shin, 151 Cal. Rptr. 3d 257 (Cal. Ct. App. 2013)...33 vi

8 Statutes (2), Fla. Stat. (2008) (3), Fla. Stat. (2008) (1)(l), Fla. Stat. (1997) (1), Fla. Stat. (2008)... 31, (7), Fla. Stat. (2008) , Fla. Stat. (2008)... passim , Fla. Stat. (2008)... passim (4), Fla. Stat. (2008)... 24, 30, (7), Fla. Stat. (2008)... 11, (1), Fla. Stat. (2008) (2)(b), Fla. Stat. (1985) , Fla. Stat. (1985)...15 Other Authorities Lisa J. Nijm, Pitfalls of Peer Review, The Limited Protections of State and Federal Peer Review for Physicians, 24 J. LEGAL MED. 541 (2003)...32 Benjamin J. Vernia, Annotation, Tort Claim for Negligent Credentialing of Physician, 98 A.L.R. 5th 533 (2002)...34 vii

9 PREFACE Record citations in the form (RXX) refer to documents included in Volume 1 of the Supreme Court Record, with the "XX" referring to specific page numbers. Citations in the form (A XX) refer to documents included in Palms West's Appendix in Support of Petition for Writ of Common Law Certiorari, included as Volume 2 of the Supreme Court Record, with the "XX" referring to specific documents included in this appendix. Pincites are included when necessary. Citations in the form (AA XX) refer to documents included in Appendix to the Response to Petition for Writ of Common Law Certiorari, included as Volume 3 of the Supreme Court Record, with the "XX" referring to specific page numbers of the appendix. References to the Initial Brief of Petitioner on the Merits are in the form (I.B. at XX), with the "XX" referring to page numbers of the Initial Brief. viii

10 INTRODUCTION Petitioner, Charles H. Burns, as Personal Representative of the Estate of Enrique Casasnovas, deceased ("Petitioner"), alleged in the Third Amended Complaint that Mr. Casasnovas' death was proximately caused by a failure to receive a needed gastroenterology consultation while being treated in Respondent Palms West Hospital Limited Partnership's ("Palms West's") emergency room. Petitioner made no attempt to comply with the pre suit notice and investigation requirements of Chapter 766, Florida Statutes, which are applicable to all claims "arising out of the rendering of, or the failure to render, medical care or services." Because it determined that Petitioner's claims arising out of the failure to provide a gastroenterology consult alleged "medical negligence," the Fourth District granted Palms West's Petition for Writ of Certiorari and quashed the trial court's order denying Palms West's Motion to Dismiss the Third Amended Complaint for failure to comply with pre suit. Respectfully, the Fourth District correctly ruled that Chapter 766 could not be circumvented by asserting "administrative" negligence in claims arising out of the rendering of or failure to render medical care or services, and this ruling should be upheld by this Court. 1

11 STATEMENT OF THE CASE AND OF THE FACTS A. Palms West's treatment of Mr. Casasnovas. On December 23, 2006, Enrique Casasnovas presented to Palms West's emergency room with complaints of abdominal pain, nausea, and vomiting blood. 1 (A 8, 91). Mr. Casasnovas was examined and treated, and was found to be in diabetic ketoacidosis, with extremely elevated blood sugar levels. (A 8, 93, 95). Palms West determined that Mr. Casasnovas was suffering from an emergency medical condition and was in need of a gastroenterologist. (A 8, 96 97). At some point prior to Mr. Casasnovas' treatment in the emergency room, Palms West had entered into contracts or other arrangements with Jesse H. Eisenman, M.D., Richard Eric Eisenman, M.D., Matthew J. Smith, D.O., Steven R. Sacks, D.O., Todd Simon, D.O., and other unknown physicians (collectively, the "Defendant Physicians") to provide emergency services and care at Palms West Hospital. (A 8, ). The Defendant Physicians were licensed by the State of Florida and held themselves out to the public to provide medical care, treatment and services in the field of gastroenterology, and were on the medical staff at Palms West. (A 8, 13 14, 16 17, 20, ). Upon making the medical determination that Mr. Casasnovas was in need of a gastroenterologist, Palms West contacted or attempted to contact the Defendant 1 The facts discussed herein are as alleged by Petitioner in the Third Amended Complaint, which Palms West accepts as true for purposes of the instant matter. 2

12 Physicians to request a consultation. (A 8, 98). The Defendant Physicians failed and/or refused to treat Mr. Casasnovas. Id. Palms West contacted other hospitals, and eventually Mr. Casasnovas was transferred to North Broward Medical Center. (A 8, ). Mr. Casasnovas died at North Broward Medical Center approximately four weeks later. (A 8, ). B. Petitioner's lawsuit arising out of the care and treatment received by Mr. Casasnovas at Palms West. Petitioner, as the personal representative of Mr. Casasnovas' estate, filed suit against Palms West in late Also named in the suit were multiple other hospitals and their chief executive officers, as well as numerous physicians and related professional associations, partnerships, or corporations. The complaint (which had been amended once before any answer was filed) asserted claims under Section , Florida Statutes (which requires every general hospital that has an emergency department to provide emergency services and care for any emergency medical condition), and sought damages for the alleged wrongful death of Mr. Casasnovas. (A 1). Petitioner did not comply with the pre suit notice and investigation procedures of Chapter 766 prior to filing the complaint. Palms West moved to dismiss, arguing that Petitioner had no cause of action under Section against the hospital, and that Petitioner's claim arose out of the failure to render medical care or services (i.e., a gastroenterology consult), but Petitioner had not complied with the pre suit requirements of Section (2), 3

13 Florida Statutes. (A 2). The trial court granted a motion to dismiss filed by other defendants, and Petitioner filed a Second Amended Complaint before the trial court ruled on Palms West's motion. (A 3, A 4). In the Second Amended Complaint, Petitioner asserted four claims against Palms West: violation of Section , negligence in failing to provide gastroenterology services, negligent retention of the Defendant Physicians, and vicarious liability for alleged violations of Section by the Defendant Physicians and the Chief Executive Officer of Palms West. (A 4). Palms West moved to dismiss this complaint for the same reasons it moved to dismiss the prior version, including the failure to comply with the pre suit notice and investigation requirements of Section (A 5, A 6). The trial court granted Palms West's motion to dismiss with respect to the direct and vicarious liability claims under Section , with prejudice, and this ruling is not being reviewed in the present appeal. (A 7). The court dismissed the remaining claims without prejudice, affording Petitioner another attempt to state valid causes of action. (A 7). The court presumed that the common law negligence claims "are married to and have their genesis in (b) [sic] that they are therefore simply offshoots to the core claims within the statute." (AA 166). Consequently, the court found that "none of the [Petitioner's] causes of action as pled in the Second Amended Complaint are claims brought in either 4

14 medical malpractice or medical negligence." (A 7). C. Allegations in Petitioner's Third Amended Complaint. Petitioner subsequently filed a Third Amended Complaint, revising the allegations against Palms West. (A 8). In this complaint, Petitioner asserted claims for breach of a non delegable duty to provide emergency care based on R 59A , Florida Administrative Code, negligent retention of the Defendant Physicians, violation of Section , Florida Statutes, based on an alleged failure to assure the competence of the Defendant Physicians through careful selection and review, and vicarious liability for the negligence of the Defendant Physicians. Relevant to this appeal, with respect to the negligent retention claim, the Third Amended Complaint alleged the following duty and breach: As a patient who was presented to PALMS WEST, [Mr. Casasnovas] was within the zone of foreseeable risks created by PALMS WEST's continued relationship, retention, and employment arrangement with [the Defendant Physicians], who might refuse to treat patients who presented to PALMS WEST in need of emergency services and care in the field of gastroenterology At all times material hereto PALMS WEST by and through its agents, employees, and servants, knew or should have known that one or more physician [sic] might refuse to treat [Mr. Casasnovas] Prior to December 23, 2006, PALMS WEST continued to rely on, retain, and employ [the Defendant Physicians] to treat patients who presented to PALMS WEST in need of emergency services and care in the field of gastroenterology. (A 8). With respect to the Section claim, the complaint in its relevant 5

15 portions alleged the following duty and breach: PALMS WEST had a duty to assure the competence of their medical staff and personnel through careful selection and review PALMS WEST failed to exercise due care in fulfilling the duty to carefully select and review the competence of [the Defendant Physicians] to treat patients who presented to PALMS WEST in need of emergency services and care in the field of gastroenterology. (A 8). With respect to causation, the complaint alleged the following: [ 1023 and 1426]. As a direct and proximate result of the foregoing acts and omissions of PALMS WEST, [Mr. Casasnovas] was not provided prompt emergency services and care in the field of gastroenterology. [ 1024 and 1427]. As a direct and proximate result of the foregoing acts and omissions of PALMS WEST, [Mr. Casasnovas] died on January 25, 2007, which entitles the Personal Representative to bring this action. (A 8). With respect to the alleged wrongdoing underlying these claims, Petitioner alleged the following duty and breach by the Defendant Physicians: (A 8). [ and ]. At all times material hereto, the [Defendant Physicians] had an arrangement and/or contract with PALMS WEST to provide emergency room services and care to any person presenting themselves therein requesting said emergency services and care and therefore had a duty to do so. 98. While at the hospital, the agents, servants, and employees of PALMS WEST contacted and or attempted to contact gastroenterologists for consultation. However, every physician contacted, including, but not limited to [the Defendant Physicians], failed and or refused to accept [Mr. Casasnovas]. 6

16 Palms West again moved to dismiss the complaint, arguing that Petitioner's claims were still based on an alleged failure to render medical services (the gastroenterology consult), and therefore Petitioner was required to comply with the pre suit requirements of Section (A 9, A 10). The trial court granted Palms West's motion with prejudice with respect to all counts other than the negligent retention claim and the claim based on Section (A 12). The trial court denied Palms West's Motion for Reconsideration. (A 13; A 14). D. Common law certiorari proceedings in the Fourth District. Palms West filed a Petition for Writ of Certiorari asserting that the trial court departed from the essential requirements of the law by failing to dismiss the negligent retention and Section claims for failure to comply with the medical malpractice pre suit requirements, and arguing that this departure, if not corrected by the Fourth District on certiorari, would cause a material and irreparable injury that could not be remedied on final appeal. (R3). Palms West contended that the trial court had departed from the essential requirements of the law because "the allegations in the Third Amended Complaint leave no doubt that [Petitioner's] claims clearly arise out of the rendering of or failure to render gastroenterology services and are, therefore, claims of medical negligence." (R10). The Fourth District agreed with Palms West, finding that the trial court did depart from the essential requirements of the law, and quashed the trial court's 7

17 order. See (R155, 158) (holding that "the hospital's negligent retention of doctors who failed to treat Casasnovas, ultimately causing his death, is a claim arising under the Medical Malpractice Act."). As the court recognized, "the [Petitioner] argued in his complaint that Casasnovas was in need of medical services and was injured because he did not receive them." (R158). Thus, the court held that "Palms West's alleged negligent retention of doctors who failed to treat patients and the hospital's continued staffing of these doctors are claims arising under the Medical Malpractice Act and implicate pre suit requirements." (R155). Petitioner then sought review from this Court, which accepted jurisdiction. SUMMARY OF ARGUMENT Petitioner alleges that Palms West provided medical care and treatment to Mr. Casasnovas, but that deficiencies in this treatment resulted in Mr. Casasnovas' death. Specifically, Petitioner alleges that Palms West was responsible for retaining and reviewing competent medical staff members as part of its obligation to provide emergency medical care to Mr. Casasnovas, but that Palms West failed to do so, which resulted in Mr. Casasnovas not receiving needed medical services. These are claims "arising out of the rendering of, or the failure to render, medical care or services," and as such the Fourth District correctly granted certiorari and quashed the trial court's order holding that Petitioner's claims were subject to dismissal due to Petitioner's failure to comply with Florida's medical 8

18 malpractice pre suit notice and investigation requirements. Respectfully, this Court should uphold the Fourth District's ruling. Florida courts have recognized that derivative liability claims such as the negligent retention and Section claims at issue in this case are "claims for medical negligence" when the alleged underlying conduct is medical in nature. Petitioner admits that in this case "the underlying duties were to perform medical treatment"; therefore, these claims were subject to pre suit. Petitioner incorrectly argues that the sole consideration for deciding whether a claim is subject to pre suit is whether the defendant is liable under the medical negligence standard of care. The correct test, however, as demonstrated by many cases finding claims not based on the medical malpractice standard of care to be for "medical negligence," is the plain language of the statute; i.e., whether the claims "aris[e] out of the rendering of, or the failure to render, medical care or services." Moreover, even accepting Petitioner's incorrect standard, Palms West's retention and review of the Defendant Physicians did, in fact, involve medical judgment and skill, and were thus subject to a professional standard of care. Thus, under any standard, Petitioner's claims were subject to the pre suit notice and investigation requirements of Chapter 766. Finally, requiring Petitioner to comply with pre suit does not deny access to 9

19 the courts, as the Fourth District's ruling imposes no more of a restriction than the statute does on any other plaintiff alleging a "claim for medical malpractice." STANDARD OF REVIEW Petitioner raises two points on appeal to this Court: whether the Fourth District correctly concluded that Petitioner's negligent retention and Section causes of action are "claims for medical negligence" (Point I), and whether the Fourth District correctly exercised its certiorari jurisdiction (Point II). Palms West agrees with Petitioner that the issue raised in Point I is subject to de novo review. See, e.g., W. Florida Reg'l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8 9 (Fla. 2012) (reviewing de novo First District's construction of Section , Florida Statutes, on petition for writ of certiorari). However, Palms West disagrees with Petitioner's conclusion that the standard of review for the issue raised in Point II is also de novo. As this Court recently stated, "[a] common law writ of certiorari rests in the sound discretion of the court to which the application was made, and thus, a court's grant of certiorari is subject to an abuse of discretion standard of review." 2 Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011); see also Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 528 (Fla. 1995); Combs v. State, 436 So. 2d 93, (Fla. 1983). As this Court previously explained in Combs: 2 All emphasis herein is supplied unless otherwise noted. 10

20 Since it is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of law, the district courts must be allowed a large degree of discretion so that they may judge each case individually. The district courts should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice. It is this discretion which is the essential distinction between review by appeal and review by common law certiorari. Combs, 436 So. 2d at In addition, Palms West agrees with Petitioner that if this Court determines that the Fourth District abused its discretion in granting certiorari or erred in ruling that the two causes of action at issue in this appeal are "claims for medical negligence" as a matter of law, the case should be remanded to allow the parties to address this issue at summary judgment and on plenary appeal. Cf. (I.B. at 13). ARGUMENT I. THE FOURTH DISTRICT CORRECTLY RULED THAT PETITIONER'S CLAIMS AROSE FROM MEDICAL CARE OR SERVICES RENDERED OR FAILED TO HAVE BEEN RENDERED TO MR. CASASNOVAS. As a condition precedent to bringing a medical malpractice claim, Florida law requires plaintiffs to provide pre suit notice and undertake a pre suit investigation of "all medical negligence claims and defenses." (1), Fla. Stat. (2008). The statute defines "medical negligence" as "medical malpractice, whether grounded in tort or in contract," (7), Fla. Stat. (2008), and "claim for medical negligence" as "a claim, arising out of the rendering of, or the failure to 11

21 render, medical care or services." (1)(a), Fla. Stat. (2008). Petitioner's claims, as alleged, fall within these statutory definitions and are subject to medical malpractice pre suit requirements. The negligent retention and Section claims are for "medical negligence" because they "aris[e] out of the failure to render[] medical care or services." 3 Petitioner alleges that Palms West is liable because the Defendant Physicians breached their duty "to provide emergency room services and care" to Mr. Casasnovas; and that Palms West "knew or should have known that one or more physician [sic] might refuse to treat [Mr. Casasnovas]," but "continued to rely on, retain, and employ [the Defendant Physicians] to treat patients"; and/or that Palms West "had a duty to assure the competence of their medical staff" but "failed to exercise due care in fulfilling the duty to carefully select and review the competence of [the Defendant Physicians] to treat patients"; and that as a result Mr. Casasnovas "was not provided prompt emergency services and care." (A 8). These allegations, which form the basis of the claims at issue in this case, demonstrate that Petitioner's claims are for "medical malpractice." Petitioner alleges a duty to render medical care or services, a breach of this duty to render medical care or services through negligent retention or a failure to carefully select 3 As this Court explained in Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528 (Fla. 2005), "[t]he term 'arising out of' is broader in meaning than the term 'caused by' and means 'originating from,' 'having its origin in,' 'growing out of,' 'flowing from,' 'incident to' or 'having a connection with.'" Id. at

22 and review the Defendant Physicians, and that Mr. Casasnovas' death was caused by this failure to render medical care or services. Palms West does not dispute that Petitioner was entitled to carefully plead claims that did not depend on the medical standard of care; however, Petitioner did not accomplish that goal. The inescapable fact underlying all of Petitioner's claims is the assumption that Mr. Casasnovas died as a result of Palms West's alleged failure to obtain a gastroenterology consult for him, i.e., as a result of a failure to render medical care or services. Cf (1)(a), Fla. Stat. (2008). As shown below, because the alleged underlying wrongdoing by the Defendant Physicians arises out of the medical care and services provided to Mr. Casasnovas, Petitioner's negligent retention and Section claims are "claims for medical negligence," and the Fourth District's ruling should be affirmed. 4 A. Petitioner's Claims Arise Out of the Failure to Render Medical Care or Services Because They Are Derivative of the Alleged Medical Negligence of the Defendant Physicians. Petitioner's claims for negligent retention and violation of Section are derivative of alleged underlying actions of the Defendant Physicians. Applying 4 In addition, based upon a careful analysis of the cases cited herein, Palms West continues to maintain that the Fourth District's opinion does not expressly or directly conflict with any decision from this Court or any District Court of Appeal. Palms West, therefore, respectfully requests that this Court discharge jurisdiction over this matter. 13

23 the plain language of the statute, because the alleged underlying wrongdoing is the failure to render medical care or services to Mr. Casasnovas, the claims at issue in this appeal are "claims for medical malpractice." See, e.g., Burke v. Snyder, 899 So. 2d 336 (Fla. 4th DCA 2005) (en banc). These claims are derivative of the alleged negligence of the Defendant Physicians because without underlying wrongdoing, alleged in this case to be a breach of a duty "to provide emergency room services and care," Petitioner's claims would be invalid. As the Fourth District explained: Cases of derivative liability, such as Prudential's negligent credentialing of a health care provider, "involve wrongful conduct both by the person who is derivatively liable and the actor whose wrongful conduct was the direct cause of injury to another." Underwood & Morrison, supra, at 619. "Although the liability is not vicarious (because the derivatively liable person has engaged in tortious conduct), the liability is derivative because it depends upon a subsequent wrongful act or omission by another." Id. at 642. Derivative liability is similar to vicarious liability in that (1) there is no cause of action unless the directly liable tortfeasor commits a tort. Grobman v. Posey, 863 So. 2d 1230, (Fla. 4th DCA 2003); see also Wright v. AmSouth Bancorporation, 320 F.3d 1198, (11th Cir. 2003) ("The district court's grant of summary judgment on the state law fraud claim was proper. Because the district court correctly determined that the negligentsupervision claim was derivative of the fraud claim, the district properly granted summary judgment on that claim as well."). 14

24 With respect to the claims asserted in this case, Section imposes upon hospitals licensed under Chapter 395 the "duty to assure the competence of their medical staff through careful selection and review." (1), Fla. Stat. (2008). Liability under Section , commonly known as a "negligent credentialing" claim, requires a finding of underlying medical negligence on the part of a physician or other medical staff. Absent such a finding, a negligent credentialing claim fails because the hospital's negligent credentialing of that staff member could not have been the proximate cause of the plaintiff's injury. E.g., Maksad v. Kaskel, 832 So. 2d 788, 791 (Fla. 4th DCA 2002) ("Because Dr. Colletta was not negligent, the hospital's credentialing of him could not have proximately caused appellant's injuries."). In Insinga v. LaBella, 543 So. 2d 209 (Fla. 1989), this Court adopted a common law duty for hospitals to select and retain competent physicians, independent of the statute, allowing a plaintiff to assert a claim for "corporate negligence" when this duty was breached. 5 As this Court stated in Insinga and subsequently reaffirmed in Horowitz v. Plantation General Hosp. Ltd. Partnership, 959 So. 2d 176 (Fla. 2007), under the "corporate negligence" doctrine, "the hospital's liability extends only to the physician's conduct while rendering treatment to patients in the hospital and does not extend to his conduct beyond the 5 The Insinga case references Section , Fla. Stat. (1985), which was subsequently renumbered to become the present Section

25 hospital premises." Insinga, 543 So. 2d at 214. Thus, "[t]he common law duty recognized in Insinga was limited to the selection and retention of medically competent physicians for actions occurring in the hospital." Horowitz, 959 So. 2d at 180. Again, the hospital's liability is derivative of the physician's; like a claim under Section , absent underlying medical negligence there is no cause of action. See Cedars Med. Ctr., Inc. v. Ravelo, 738 So. 2d 362, 366 n.1 (Fla. 3d DCA 1999) (noting negligent selection and retention is exception to general rule that a hospital is not liable for negligence of an independent contractor physician). Outside of the "corporate negligence" doctrine, a negligent retention claim must be based on "an injury resulting from a tort which is recognized under common law." Footstar Corp. v. Doe, 932 So. 2d 1272, 1278 (Fla. 2d DCA 2006) (Casanueva, J., concurring specially) (quoting Scelta v. Delicatessen Support Services, Inc., 57 F. Supp. 2d 1327, 1348 (M.D. Fla. 1999)); Castleberry v. Edward M. Chadbourne, Inc., 810 So. 2d 1028, 1030 (Fla. 1st DCA 2002). Without an underlying common law tort, there is no claim for negligent retention. See, e.g., Castleberry, 810 So. 2d at 1030 (because Florida did not recognize common law cause of action for "negligent failure to maintain a workplace free of sexual harassment," summary judgment warranted on negligent retention claim). 6 6 Other states similarly recognize that negligent retention claims against hospitals require proof of underlying wrongdoing by the physician. E.g., Winona Mem'l Hosp., Ltd. Partnership v. Kuester, 737 N.E.2d 824, 828 (Ind. Ct. App. 2000), 16

26 Because Petitioner's negligent retention and Section claims against the hospital are derivative of and would not exist absent underlying wrongdoing on the part of the Defendant Physicians, "the nature of the [Defendant Physicians'] underlying conduct determines whether the health care facility's liability under Fla. Stat [or for negligent retention] should be considered medical negligence liability." Burke, 899 So. 2d at 340; see also St. Anthony's Hosp., Inc. v. Lewis, 652 So. 2d 386 (Fla. 2d DCA 1995) (negligent selection and retention claim subject to pre suit when underlying conduct was medical in nature); Martinez v. Lifemark Hosp. of Fla., Inc., 608 So. 2d 855 (Fla. 3d DCA 1992) (negligent hiring and retention claims subject to pre suit because underlying negligent medical treatment "is both necessary to the claims against the hospital and inextricably connected to them."); Gutman v. Quest Diagnostics Clinical Laboratories, Inc., 707 F. Supp. 2d 1327, 1331 (S.D. Fla. 2010) (negligent supervision claim was for "medical negligence" when underlying wrongdoing involved medical services). approved, Howard Reg'l Health Sys. v. Gordon, 952 N.E.2d 182, 186 (Ind. 2011) ("The credentialing process alleged must have resulted in a definable act of medical malpractice that proximately caused injury to Sharon Kuester or Kuester is without a basis to bring the suit for negligent credentialing."); Strubhart v. Perry Mem'l Hosp. Trust Auth., 903 P.2d 263, 278 (Okla. 1995) ("To show causation, a plaintiff must prove some negligence on the part of the doctor involved to establish a causal relation between the hospital's negligence in granting or continuing staff privileges and a plaintiff's injuries."); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 545 (Tex. 2004) ("Likewise, Rose's negligent credentialing claim derives from Dr. Fowler's alleged negligent treatment. Indeed, without negligent treatment, a negligent credentialing claim could not exist.") (citations omitted). 17

27 Focusing on the nature of the alleged underlying wrongdoing is consistent with this Court's approach to other forms of derivative liability. In Weinstock v. Groth, 629 So. 2d 835 (Fla. 1993), this Court ruled that a vicarious liability claim is for "medical negligence" if the underlying directly liable tortfeasor is alleged to be liable for medical negligence: Section (2) does not define the "prospective defendants" to whom notice must be given. However, it is only logical that the term refers to defendants in a medical malpractice action who are health care providers as defined in chapter 766 or who, although not expressly included within that class, are vicariously liable for the acts of a health care provider. Thus, we agree with the McCullough court that the proper test for determining whether a defendant is entitled to notice under section (2) is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section (1). Weinstock, 629 So. 2d at Thus, as recognized by this Court in the context of vicarious liability, and by the district courts of appeal in the cases cited above for the same types of claims at issue in this appeal, whether a claim against a hospital based on derivative liability for the acts of another is a "claim for medical negligence" within the meaning of Section (1)(a) depends on the nature of the conduct for which the hospital is alleged to be derivatively liable. 7 7 Other states also consider negligent retention claims against hospitals based on the medical malpractice of physicians to be claims for "medical malpractice," for precisely this reason. See Adams v. Griffis, 620 S.E.2d 575, 576 (Ga. Ct. App. 2005) (holding that claims against hospital for negligent retention of physician "ultimately rest upon whether Dr. Griffis's substandard medical care caused Cook's injury, and are therefore considered to be medical malpractice claims for purposes 18

28 The holdings of Burke and Weinstock focusing on the nature of the alleged underlying wrongdoing are consistent with this Court's ruling in Integrated Health Care Services, Inc. v. Lang Redway, 840 So. 2d 974 (Fla. 2002), which stated that "[i]n order to determine whether the presuit requirements of chapter 766 apply, we look to whether the plaintiff must rely upon the medical negligence standard of care." Id. at 980. Lang Redway considered only claims under Chapter 400, Florida Statutes, involving a standard of care specified by statute to apply to nursing homes, which are not included within the definition of "health care provider" in Chapter 766. See (1)(l), Fla. Stat. (1997) (defining standard of care applicable to nursing home); (2)(b), Fla. Stat. (1985) (defining "health care provider"). This Court quoted with approval Weinstock's holding that a defendant is entitled to pre suit if the defendant "is directly or vicariously liable under the medical negligence standard of care." Lang Redway. 840 So. 2d at 978 (quoting Weinstock, 629 So. 2d at 838). Both Lang Redway and Weinstock additionally cited with approval the Second District's opinion in NME Properties, Inc. v. McCullough, 590 So. 2d 439, 441 (Fla. 2d DCA 1991), which stated that "[t]he simplest test to determine whether the notice provisions apply to a claim is whether the professional medical negligence standard of care applies to the of the statute of repose."); McVay v. Rich, 874 P.2d 641, 645 (Kan. 1994) (Finding statutory immunity precluding cause of action, but stating that claim for negligent credentialing of physician would be for medical malpractice, as "[plaintiff] would have no claim against the hospital if [physician] had not negligently treated her."). 19

29 active tortfeasor." Id. at 441; Weinstock, 629 So. 2d at 838. In Lang Redway, because the claims were limited to a statutory cause of action under Chapter 400, and did not assert any direct or derivative liability of a health care provider under Chapter 766, this Court found that the claims were not subject to pre suit. Cf. Lang Redway. 840 So. 2d at 980 n.9 (stating that the holding was limited "to those cases where the plaintiff has limited his or her cause of action to violations of section "). Here, Petitioner's claims allege wrongdoing by "health care providers," as defined in Chapter 766. Because the alleged underlying wrongdoing of the Defendant Physicians is a breach of an alleged duty to provide medical care and treatment to Mr. Casasnovas, Petitioner "must rely upon" the medical negligence standard of care applicable to the Defendant Physicians in proving the claims against Palms West, and the claims thus "aris[e] out of the rendering of, or the failure to render, medical care or services." As reflected in Burke and Weinstock, Petitioner's derivative negligent retention and Section claims based on the underlying medical negligence of the Defendant Physicians are "claims for medical negligence," in the same manner as vicarious liability claims against a hospital for underlying medical negligence of an employee. When a physician is obligated to provide medical services to emergency room patients, but elects not to be in the emergency room to provide these services 20

30 for whatever reason, the physician has breached the medical standard of care. In his Initial Brief on the Merits, Petitioner admits that in this case "the underlying duties were to perform medical treatment." (I.B. at 25). In this case, the only nexus between the alleged negligent retention or violation of Section and Mr. Casasnovas is the Defendant Physicians' alleged failure to render medical care or treatment. Cf. Puentes v. Tenet Hialeah Healthsystem, 843 So. 2d 356, (Fla. 3d DCA 2003) ("Negligence arises here only in the context of Puentes' medical condition."). Indeed, Petitioner specifically alleges that the Defendant Physicians had a duty to provide medical treatment to Mr. Casasnovas. (A 8, , ). 8 Many Florida courts have held that claims based on a failure to render medical care or treatment are "claims for medical negligence." See, e.g., Tenet S. Florida Health Sys. v. Jackson, 991 So. 2d 396, 399 (Fla. 3d DCA 2008) ("This Complaint arises out of the rendering or failure to render medical care or services. Jackson alleges injuries during this hospitalization due 8 Petitioner alleges that this duty was created by an agreement between Palms West and the Defendant Physicians. E.g., (A 8, 998). Palms West does not admit that the Defendant Physicians had any common law duty to treat Mr. Casasnovas, and does not admit that the Defendant Physicians' refusal to accept Mr. Casasnovas is an underlying wrong which may support a claim under Section or the "corporate negligence" doctrine, but expressly reserves its right to assert these and all other defenses to the complaint and to contest the merits of the claims, if necessary. Palms West's position in this proceeding is simply that, regardless of other reasons why Petitioner's causes of action are invalid, the claims are "claims for medical negligence" within the meaning of Section (1)(a), Florida Statutes, and therefore should have been dismissed for failure to comply with the pre suit notice and investigation requirements. 21

31 to the failure to perform an inpatient nursing assessment; failure to implement 'latex precautions'; failure to assess and monitor; failure to appreciate early implication of increasing respiratory rate and sore throat in a patient with recent neck surgery and multiple allergies; and failure to provide appropriate care and treatment. These are all medical care or services which the plaintiff claims were either negligently rendered or not rendered at all resulting in injury."); Tunner v. Foss, 655 So. 2d 1151 (Fla. 5th DCA 1995) (failure to provide necessary consultations was "medical negligence"); Gamez v. Brevard County, Florida, No. 606CV 716ORL 22DAB, 2006 WL , at *8 (M.D. Fla. Sept. 6, 2006) report and recommendation adopted, 2006 WL (M.D. Fla. Sept. 26, 2006) (the failure to provide necessary mental health programs "falls squarely within the above definitions of medical malpractice or negligence."). While Petitioner also claims that "[t]he Estate does not question anyone's medical care," (I.B. at 22) (emphasis by Petitioner), this is demonstrably false. Petitioner's central contention, alleged at myriad points in the complaint, was that Palms West and the Defendant Physicians improperly failed to provide necessary medical care in the field of gastroenterology to Mr. Casasnovas. E.g., (A 8, 98, 543, 549, , ). If Petitioner were not questioning the medical care rendered to Mr. Casasnovas, there would be no lawsuit. Although Petitioner may be alleging that Palms West or the Defendant Physicians breached the professional 22

32 standard of care by omission rather than commission, the statutory definition of medical negligence is equally applicable to claims "arising out of the rendering of medical care or services" and claims "arising out of the failure to render[] medical care or services." See (1)(a), Fla. Stat. (2008). The complaint does not allege that the Defendant Physicians "did nothing"; it alleges that the Defendant Physicians breached a duty to provide medical care by refusing to accept Mr. Casasnovas as a patient. (A 8, 98, , ). The Third District's recent decision in Acosta v. HealthSpring of Fla., Inc., 118 So. 3d 246 (Fla. 3d DCA), relied on by Petitioner, is distinguishable and inapplicable. In Acosta, a patient was injured due to his health maintenance organization's ("HMO's") delay in authorizing transfer to another hospital to prevent a stroke. Id. at 248. The Third District found that this claim was not for "medical negligence," because it characterized the HMO's decisions involving the transfer as "involv[ing] negligence by clerical personnel of HealthSpring, not medical personnel." Id. Here, Petitioner did not allege negligence by Palms West's staff in transferring Mr. Casasnovas. Indeed, Petitioner admits that "the personnel within the facility did a competent job, and indeed likely the best job they could do." (I.B. at 34). Instead, here "the underlying duties were to perform medical treatment." (I.B. at 25). In addition, Palms West respectfully maintains that Acosta was wrongly 23

33 decided. Although the Third District recognized that HMOs were added to the definition of "health care provider" in 2003, see (4), Fla. Stat., it did not explain how an HMO could provide "health care" and be subject to a professional standard of care if not through nominally "administrative" actions. Acosta, 118 So. 3d at 249. Instead, the court relied on pre 2003 cases in holding that claims based on "[a]dministrative delays and refusals in the authorization of medical care" by an HMO are not "claims for medical negligence." Id. (citing Solomon v. Well Care HMO, Inc., 822 So. 2d 543 (Fla. 4th DCA 2002); Lane v. Health Options, Inc., 796 So. 2d 1234 (Fla. 4th DCA 2001)). Instead, the alleged underlying conduct in this case is analogous to Tunner. In that case, after the patient died from symptoms that had been present for a month, his wife filed suit, alleging that the physician had refused to "obtain reasonable and necessary consultations from specialists/and or hospitalize" the decedent. Tunner, 655 So. 2d at The wife alleged that the failure to provide the necessary consultations was motivated by "economic self interest," as due to the physician's arrangement with the decedent's insurer, the physician would suffer economic loss if she obtained the consults. Id. On review, the Fifth District found that the wife's claims were for "medical negligence," because "[i]n essence, the plaintiff is alleging in this case that Dr. Tunner refused to render medical care or service, by failing to refer [decedent] to a specialist or admit him to a hospital." Id. 24

34 Even though the physician was exercising economic judgment, not medical judgment, pre suit was still required, because "the alleged motivation for the treatment or lack of treatment" was irrelevant. Id. As in Tunner, Petitioner alleges in this case that the Defendant Physicians failed to provide a necessary consultation for economic reasons, and that Mr. Casasnovas was injured as a result. As recognized in Tunner, these allegations constitute a "claim for medical negligence," and the "alleged motivation" is irrelevant. In sum, because the underlying conduct supporting Petitioner's claims is medical in nature, the derivative negligent retention and Section claims are "claims for medical negligence" under the statute. Thus, as the Fourth District correctly observed, "[t]he failure of the [Defendant Physicians] to respond, which [Petitioner] alleges resulted in Casasnovas' death, sounds in medical negligence, even if the doctors' motives were purely economic. Palms West's retention of these doctors is a medical negligence claim where the [Petitioner] is claiming that Casasnovas' death resulted from the lack of treatment." (R155). The Fourth District's ruling should be affirmed. 25

35 B. The Pre suit Notice and Investigation Procedures in the Medical Malpractice Act are Not Limited to Negligence Claims. Petitioner's proposed "sole focus" on whether a defendant is directly liable under a medical negligence standard of care would essentially limit the reach of the Medical Malpractice Act to claims for simple negligence. This result is inconsistent with the rulings of a multitude of Florida courts applying the language of Section (1)(a), which have not limited the reach of the Medical Malpractice Act to claims against a physician for simple direct negligence in the treatment of a patient. To the contrary, courts have consistently recognized, as the Fourth District did below, that "the medical negligence umbrella is wide." (R157). In doing so, many courts have held that the pre suit requirements are applicable to claims that do not rely upon the medical standard of care. For example, courts have recognized that intentional torts may be "medical malpractice," even though they do not require proof of a standard of care. E.g., Tunner, 655 So. 2d at 1152 (holding that alleged intentional torts were "medical negligence," stating that "[t]he statute is not limited to negligent acts."); Sistrunk v. Hoshall, 530 So. 2d 935 (Fla. 1st DCA 1988) ("Although failure to obtain informed consent may also constitute a technical battery, labeling the act an intentional tort does not change the action from what it is, a species of medical negligence."). Courts have recognized "medical malpractice" claims that do not require expert testimony for the standard of care. E.g., Gouveia v. Phillips, 823 So. 26