ANSWER BRIEF ON JURISDICTION

Transcription

1 Case No. SC IN THE SUPREME COURT OF THE STATE OF FLORIDA HOSPITAL BOARD OF DIRECTORS OF LEE COUNTY; CLARA HUGHES; JEANIE SMITH; ROBERT ARNALL; and ROBERT McCURDY, Petitioners, v LUCY THOMAS, individually and as the Personal Representative of the Estate of Mildred Thomas, deceased, Respondent. A PETITION FOR DISCRETIONARY REVIEW OF THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL IN THOMAS v. HOSPITAL BOARD et al., 41 SO.3D 246 (FLA.2ND DCA 2010) ANSWER BRIEF ON JURISDICTION William deforest Thompson, Jr. Fla. Bar No Co-Counsel for Lucy Thomas WILLIAM deforest THOMPSON, JR, PA 2051 McGregor Boulevard Fort Myers, FL Bill@WdeFTlaw.com (239) facsimile (239) voice

2 Robert L. Donald Fla. Bar No Appellate Counsel for Lucy Thomas LAW OFFICE OF ROBERT L. DONALD 2077 First Street, Suite 201 Post Office Drawer 2424 Fort Myers, FL (239) facsimile (239) voice TABLE OF CONTENTS Page TABLE OF CITATIONS... ii INTRODUCTION...iv STATEMENT OF THE CASE & FACTS... 1 SUMMARY OF ARGUMENT... 4 ARGUMENT... 4 A. Mizrahi has little to do with this case, and certainly is not in express and direct conflict with the Second District s decision... 5 B. The Second District s PCA in another case does not and cannot support discretionary review... 9 CONCLUSION... 10

3 CERTIFICATE OF SERVICE... C-1 CERTIFICATE OF COMPLIANCE... C-2 ii

4 TABLE OF CITATIONS Page CONSTITUTIONS & STATUTES (1), Fla.Stat. (2009) , Fla.Stat. (2009)... 3 CASES Burke v. Snyder, 899 SO.2D 336,341 (Fla. 4 th DCA 2005)... 7 Dept.of Legal Affairs v. Fifth District, 434 SO.2D 310,311 (Fla. 1983)... 9 Garber v. Snetman, 712 SO.2D 481 (Fla.3d DCA 1998)... 5 Gould v. State, 974 SO.2D 441 (Fla.2d DCA 2007)... 9 Hicks v. Baptist Hospital, 676 SO.2D 1019 (Fla.1st DCA 1996)... 7 Mizrahi v. North Miami Medical Center, 761 SO.2D 1040 (Fla. 2000)... 4 Mizrahi v. North Miami, 712 SO.2D 826 (Fla.3d DCA 1998)... 5 Palm Springs Gen. Hosp. v. Perez, 661 SO.2D 1222 (Fla.3d DCA 1995)... 7 Quitanilla v. Coral Gables Hospital, 941 SO.2D 468 (Fla.3d DCA 2006)... 7 Stackhouse v. Emerson, 611 SO.2D 1365 (Fla.5th DCA 1993)... 7 State v. ADH, 429 SO.2D 1316 (Fla.5th DCA 1983)... 9 iii

5 TRW Automotive v. Papandopoles, 949 SO.2D 297 (Fla.4th DCA 2007)... 9 ADMINISTRATIVE & COURT RULES Florida Rule of Appellate Procedure 9.210(a)(2)... C-2 LEGAL ENCYCLOPEDIAS & TREATISES Discretionary Review, 45 Fla.L.Rev. 21,24 (1993)... 4 iv

6 INTRODUCTION The Petitioners seek discretionary review of a decision of the Second District reported at Thomas v. Hospital Board, 41 SO.3D 246 (Fla.2d DCA 2010). This Jurisdictional Answer Brief is submitted by the Respondent, LUCY THO- MAS, individually and as the Personal Representative of her mother s estate. Ms. Thomas was the Plaintiff in the trial court and the Appellant in the Second District, and she will be addressed herein by name or as the Plaintiff. The Petitioners are HOSPITAL BOARD OF DIRECTORS OF LEE COUNTY and several of its employees and administrators, i.e., CLARA HUGHES, JEANIE SMITH, ROBERT ARNALL and ROBERT McCURDY. These Petitioners will be addressed collectively as Lee Memorial and individually by name. There is a second discretionary-review proceeding concerning the same Second District decision, and it is styled Backstrand v. Thomas, Case No. SC Ms. Thomas has moved to consolidate the two proceedings, but the Motion has not yet been ruled upon. This Answer Brief will pertain only to the arguments raised by Lee Memorial in its Initial Brief on Jurisdiction. The Petitioners in the other proceeding are KENNETH W. BACKSTRAND, M.D. and v

7 his professional association, and they will be addressed collectively herein as Dr. Backstrand. The Court should assume that all emphasis in this Answer Brief on Jurisdiction has been supplied by the undersigned, unless otherwise specifically noted. STATEMENT OF THE CASE & FACTS There is a principal fallacy in the background information presented by Lee Memorial in its Initial Brief on Jurisdiction, and to understand this discrepancy goes far in seeing why there is no express and direct conflict between the Second District s decision and that of any other district or this Court. Lee Memorial opens its Initial Brief with the assertion that this is a medical malpractice wrongful death action, implying that there were no other claims but professional medical negligence. The Plaintiff, as Personal Representative, does have a malpractice claim based on Dr. Backstrand s injection of Ms. Thomas mother with a lethal dose of Esmolol. But things happened after the death that constituted additional torts. As Judge Wallace said in the Second District s decision: Subsequently [after death], Dr. Backstrand, Nurse Hughes, and Nurse Smith purportedly 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. Dr. Backstrand, Nurse Hughes, and Nurse Smith listed that same cause of death in vi

8 computer records, and Mr. McCurdy, the hospital s attorney, later learned of Mildred Thomas s real cause of death through the hospital s incident reporting procedure, but they failed to disclose it. 41 SO.3D at 249. Because of this false reporting of the cause of death, the medical examiner did not conduct a complete autopsy and her body was released to her family for burial in Anniston, Alabama. Id. The medical examiner later demanded that Mildred Thomas s body be returned to him immediately for a second autopsy. Id. This demand was related to Ms. Thomas literally at her mother s funeral. The body was returned to Fort Myers, and after the second autopsy the medical examiner attributed her death to Esmolol toxicity, contrary to what Dr. Backstrand and the Lee Memorial personnel had written in the hospital file and told Ms. Thomas. Id. This series of events led Ms. Thomas to immediately understand that something untoward had happened, over-and-above the unexpected death of her mother from hip surgery. Accordingly, when suit was filed six causes of action were asserted, to wit: Thereafter, in 1998, Lucy Thomas filed her complaint alleging: (1) wrongful death by medical malpractice against both Dr. Backstrand and Lee Memorial Hospital; (2) breach of contract of care by Lee Memorial Hospital, Dr. Backstrand, and Nurse Hughes; (3) mishandling of a dead body; (4) outrage (intentional infliction of emotion

9 al distress); (5) invasion of privacy; and (6) intentional misrepresentation. Id. So from the very beginning this was much more than a typical malpractice action as Lee Memorial attempts to portray it. To understand this is to understand all. Ms. Thomas filed her action in 1998, so this lawsuit will soon enter its 13 th year of existence. During that time there has been extensive motion practice by the Defendants. 41 SO.3D at After the action had been pending for two years the trial court dismissed with prejudice Ms. Thomas claims for breach of contract, mishandling of a dead body, outrage, and invasion of privacy. She was allowed to amend as to her misrepresentation claim and malpractice claim. 41 SO.3D at 250. Later another trial judge struck a portion of her claim for intentional misrepresentation on the basis that the court had previously dismissed the outrage claim with prejudice. Id. Ironically, another trial judge later allowed Ms. Thomas to seek punitive damages, necessarily finding that there was a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages , Fla.Stat. (2009). This was the only quasi-evidentiary hearing conducted in this case. It is interesting to note that Lee Memorial did not cross-appeal this punitive-damages finding, and the Second District did not disturb it. 431 SO.2D at

10 On appeal the Second District first held that the impact rule did not bar Ms. Thomas claim for non-pecuniary damages for intentional misrepresentation, hence the trial court had erred in entering summary judgment against her on this basis. 41 SO.3D at Judge Wallace also held that the claim for non-pecuniary damages for the non-malpractice torts was not barred by the provision in the Wrongful Death Act, since these other torts were not medical malpractice. Judge Wallace also held that the trial court erred in dismissing Ms. Thomas claim for outrage (intentional infliction of emotional distress) early in the case, since the allegations were sufficient to support such a claim. 41 SO.2D at Both of the Second District s holdings were based on the de novo standard of review, as Judge Wallace noted, since the rulings concerned a summary judgment and the dismissal of a pleaded claim. So after 12 years of litigation, the Second District has merely put this case back on track in practical effect near its beginning and has not made some momentous holding after the full development of the facts. SUMMARY OF ARGUMENT The Mizrahi case answered a certified question that has no relevance to the instant case, and there are a number of decisions from the other district courts that 32768

11 are similar to the Second District s holding in the decision under review. Lee Memorial s reliance on a PCA from the Second District is patently improper, and in any event, by definition a PCA cannot be in express and direct conflict with a written decision, especially when the PCA is issued by the same court that issued the written decision. Lee Memorial has not carried its burden of showing express and direct conflict, and it is therefore respectfully submitted that discretionary review must be denied. ARGUMENT The Florida Constitution is frugal with this Court s discretionary jurisdiction. As Judge Cope noted in Discretionary Review, 45 Fla.L.Rev. 21,24 (1993), discretionary review in Florida is the narrowest in the country. Lee Memorial has been coy in stating what the supposed conflicting decision(s) are. Its main reliance seems to be on Mizrahi v. North Miami Medical Center, 761 SO.2D 1040 (Fla. 2000), with a secondary reliance upon a PCA issued by the Second District itself. Let s examine each of these authorities to see if they are in express and direct conflict with the decision rendered by the Second District. A. Mizrahi has little to do with this case, and certainly is not in express and direct conflict with the Second District s decision

12 The Court will note that the Second District did not mention Mizrahi in its decision, and this is because Mizrahi has almost nothing to do with this case. Mizrahi is a brief opinion answering a certified question, i.e., whether a provision in the Wrongful Death Act violated equal protection because it prevented adult children from recovering non-pecuniary damages in medical malpractice actions while allowing such children to recover [non-pecuniary damages] where the death was caused by other forms of negligence. 761 SO.2D at The certified question had been posed by two third district cases. This Court held that the medical malpractice crisis was a sufficient predicate for the Legislature to treat medical malpractice differently from other negligence cases. The Court did not deal with the underlying facts of either of the certifying cases in answering the certified question. The underlying third district decisions did not disclose the facts of the respective cases. Mizrahi v. North Miami, 712 SO.2D 826 (Fla.3d DCA 1998); Garber v. Snetman, 712 SO.2D 481 (Fla.3d DCA 1998). However, this Court, in disposing of the certified question, quoted briefly from the trial court s judgments by way of background. In one of the cases (Garber) an adult child of the decedent sought non-pecuniary damages in the medical-malpractice action. Of course to raise the constitutional issue this would have been necessary, so it comes as no 32770

13 surprise. The portion of the trial court s judgment quoted by the Court also stated that recovery had been sought by the survivor for intentional infliction of emotional distress, and it is this single reference that Lee Memorial relies upon for its conflict argument. This fleeting reference is not explained, since it was not relevant to the constitutional question presented; but the claim could have been based on the intentional emotional distress suffered by the decedent prior to her death, or the survivor s emotional distress suffered as a result of the decedent s treatment and subsequent death. Under either circumstance the emotional distress would be part-and-parcel of the malpractice committed upon the decedent. In other words, the intentional emotional distress was based upon something that happened in the course of providing medical care to the decedent while she was alive. It did not involve, as does the instant case, a cover-up after the decedent s death and fraud perpetrated against the daughter of the decedent after the decedent s death. What Lee Memorial is arguing is that any tort committed that is even casually linked to the furnishing of medical care, even if the patient has already died and thus ceased receiving medical care and even though the victim of the tort is not the patient, must be classified under the rubric of medical malpractice and thereby subjected to all of the rules and limitations pertaining to that cause of 32771

14 action. But at the jurisdictional stage of this proceeding the merits are not open for discussion. There is nothing in Mizrahi or any other case that says anything like the argument Lee Memorial is trying to make. So there is plainly no express and direct conflict upon which Lee Memorial can advance its position. Lee Memorial s argument that everything must be encompassed within medical malpractice is itself in express and direct conflict with existing Florida law. There are a substantial number of decisions recognizing that just because a tort is committed in a hospital or in the course of medical treatment does not make it medical malpractice. For instance, in Quitanilla v. Coral Gables Hospital, 941 SO.2D 468 (Fla.3d DCA 2006) a nurse spilled hot tea on a patient in the hospital, and the trial court held that the claim was barred by the patient s failure to comply with the pre-suit requirements. The third district reversed because [t]he injury is not a direct result of receiving medical care from the provider. In Burke v. Snyder, 899 SO.2D 336,341 (Fla. 4 th DCA 2005) the court held that improper sexual conduct of a doctor in the course of a medical examination is not a claim arising out of negligent medical treatment (malpractice). In Hicks v. Baptist Hospital, 676 SO.2D 1019 (Fla.1st DCA 1996) the patient was injured by smoke inhalation in the hospital. The first district held that the plaintiff did not have to comply with the pre-suit requirements, since the claim was essentially for 32772

15 premises liability and not medical malpractice. See also Palm Springs Gen. Hosp. v. Perez, 661 SO.2D 1222 (Fla.3d DCA 1995)(suit against hospital for assault was not malpractice). In Stackhouse v. Emerson, 611 SO.2D 1365 (Fla.5th DCA 1993) a patient sued the hospital and doctor for fraud, intentional infliction of emotional distress, false imprisonment, etc. The trial court dismissed the case as being barred by the medical malpractice statute of limitations, but the fifth district reversed: Succinctly stated, what we have here are claims for intentional torts independent of any medical diagnosis, treatment or care, which, at best, originate rather remotely from a health care provider/patient relationship. To accept appellees contention that their acts, as set forth in the complaint, are barred by the statute of limitations for medical malpractice would lead to the absurd result that every wrongful act committed by a health care provider amounts to medical malpractice. (Citations omitted.) 611 SO.2D at So in Stackhouse the plaintiff sought recovery on the same bases as Ms. Thomas does here, and the fifth district flatly held that these were not malpractice claims and it would be absurd to construe them as such. The instant case is even further afield from malpractice than was Stackhouse. Here the fraud and intentional infliction of emotional distress were not inflicted upon the decedent, but rather upon her daughter after the decedent passed away. The Malpractice Act itself says that a claimant within its meaning is the 32773

16 person who is claiming injury arising from medical negligence (1), Fla.Stat. (2009). This does not encompass Ms. Thomas. How could an expert be found to satisfy the pre-suit requirements concerning the prevailing professional standards of a medical provider in relation to the fraud and intentional emotional distress inflicted upon someone who was not even the patient? Finally, some of the Defendants are not even medical providers. How could they be encompassed within the Malpractice Act? At this jurisdictional stage it is Lee Memorial s burden to show that the Second District s decision is in express and direct conflict with some other decision, before the substantive merits of that decision can be considered. Lee Memorial has made no such showing, and Mizrahi does not help its jurisdictional argument in any way. B. The Second District s PCA in another case does not and cannot support discretionary review. " \l 2 The only other case relied upon by Lee Memorial is, surprisingly, a PCA from the Second District itself. The express and direct conflict must arise from a decision of this Court or a district court of appeal other than the Second District itself. So citing a decision of the Second District gets Lee Memorial nowhere in its quest for conflict jurisdiction

17 More fundamentally, a PCA has no precedential authority in other cases. So by definition the PCA could not be the basis of express and direct conflict. TRW Automotive v. Papandopoles, 949 SO.2D 297,301 (Fla.4th DCA 2007)(PCA has no precedential value ); Gould v. State, 974 SO.2D 441 (Fla.2d DCA 2007)(ditto). In State v. A.D.H., 429 SO.2D 1316 (Fla.5th DCA 1983) the fifth district struck a brief where counsel cited a PCA. In later review, this Court agreed in Department of Legal Affairs v. Fifth District Court of Appeal, 434 SO.2D 310,311 (Fla. 1983) that citing a PCA in any court other than the one that rendered it is improper and is properly excluded from a brief or oral argument. So Lee Memorial acted improperly in even citing the PCA to this Court, and it is self-evident that there can be no express and direct conflict between the instant decision and the silence of a PCA that was issued by the same court. CONCLUSION It is respectfully submitted that there is no express and direct conflict upon which this Court can exercise its discretionary jurisdiction, and accordingly the Petitioners request for discretionary jurisdiction must be denied. Respectfully submitted, /s/ Robert L. Donald Robert L. Donald 32775

18 Fla. Bar No Appellate Counsel for Lucy Thomas LAW OFFICE OF ROBERT L. DONALD 2077 First Street, Suite 201 Post Office Drawer 2424 Fort Myers, FL (239) facsimile (239) voice William deforest Thompson, Jr. Fla. Bar No Co-Counsel for Lucy Thomas WILLIAM deforest THOMPSON, JR, PA 2051 McGregor Boulevard Fort Myers, FL (239) facsimile (239) voice 32776

19 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Answer Brief on Jurisdiction has been furnished by regular United States Mail to Mark Hicks, Irene Porter & Dinah Stein, appellate counsel for Dr. Backstrand, of HICKS, PORTER, EBENFELD & STEIN, P.A., 799 Brickell Plaza, 9 th Floor, Miami, FL 33131; to Benito H. Diaz, trial counsel for Dr. Backstrand, of BENITO H. DIAZ, P.A., 2655 South LeJeune Road, Suite 1107, Coral Gables, FL 33134; to Richard Garland, appellate counsel for Lee Memorial, of DICKINSON & GIB- BONS, P.A., 401 North Cattlemen Road, Suite 300, Sarasota, FL 34232; and to Douglas Lumpkin, trial counsel for Lee Memorial, of LUMPKIN & HASKINS, P.A., 1718 Main Street, Suite 100A, Sarasota, FL 34236; this 22nd day of October, /s/ Robert L. Donald Robert L. Donald Fla. Bar No

20 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Answer Brief on Jurisdiction complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). /s/ Robert L. Donald Robert L. Donald Fla. Bar No

21 32779

22 LAW OFFICE OF ROBERT L. DONALD Post Office Drawer 2424 Fort Myers, FL