THE SUPREME COURT STATE OF FLORIDA RESPONDENTS JURISDICTIONAL BRIEF

Transcription

1 THE SUPREME COURT STATE OF FLORIDA Case No.: SC POMPANO TREATMENT CENTER, INC. a Florida Corporation, Joseph E. Dorsey, M.D. South Florida Substance Abuse, Inc. vs. Petitioners, THERESA L. CHEEKS, as Personal Representative of the Estate of JEFFREY WILLIAMS, deceased and THERESA L. CHEEKS, as Personal Representative of the Estate of TRAVONDA MONIQUE WILLIAMS, a deceased minor. Respondent. / RESPONDENTS JURISDICTIONAL BRIEF Respectfully submitted, Leeds & Colby 2950 S.W. 27 th Avenue Suite 300 Miami, Florida and- Lauri Waldman Ross, Esq. Theresa L. Girten, Esq. LAURI WALDMAN ROSS, P.A. Counsel for Appellee Two Datran Center, Suite S. Dadeland Boulevard

2 ii Miami, Florida (305)

3 TABLE OF CONTENTS TABLE OF CONTENTS...ii TABLE OF AUTHORITIES... OTHER AUTHORITIES... iii iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 3 THERE IS NO EXPRESS DIRECT CONFLICT BETWEEN THE DISTRICT COURT S HOLDING THAT THERE ARE MATERIAL DISPUTED FACTS PRECLUDING SUMMARY JUDGMENT ON POMPANO S BAD FAITH AND TWO DECISIONS OF THIS COURT DEALING WITH DIFFERENT ISSUES. (ARGUMENT, REPHRASED)... 3 CONCLUSION...10 CERTIFICATE OF SERVICE...11 CERTIFICATE OF TYPE FACE AND STYLE...11 iii

4 TABLE OF AUTHORITIES Cheeks v. Dorsey, 846 So. 2d 1169 (Fla. 4 th DCA 2003)... 1, 8, 9 Florida Power & Light Co. v. Bell, 113 So. 2d 697 (Fla. 1959)... 4 Forlaw v. Fitzer, 456 So. 2d 432 (Fla. 1984)... 3, 5, 7 Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)... 4 Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962)... 4 McCain v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992)... 8 Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960)... 4 Pate v. Threlkel, 661 So. 2d 278 (Fla. 1995)...3, 5-7 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 4 Trustees of Internal Imp. Fund v. Lobean, 127 So. 2d 98 (Fla. 1961)... 4 United States v. Smurthwaite, 590 F. 2d 889 (10 th Cir. 1979)... 6 Werner v. Varner, Stafford & Seaman, P.A., 659 So. 2d 1308 (Fla. 4 th DCA 1995)... 5 OTHER AUTHORITIES 21 Code of Federal Regulations, , 10 Florida Constitution, article v, section 3...3, 5 Rule 9.030, Florida Rule Appellate Procedure... 4 iv

5 , Florida Statutes, (1989)... 7 v

6 STATEMENT OF THE CASE AND FACTS 1 Pompano Treatment Center, Inc. seeks further review of the Fourth District s decision in Cheeks v. Dorsey, 846 So. 2d 1169 (Fla. 4 th DCA 2003) claiming it expressly and directly conflicts with another decision of the same district court and two decisions of this Court. Pompano s recitation of the facts leaves out facts critical to the Fourth District s decision, and glosses over others. Accordingly, this new statement follows. Richard Reutlinger ( Reutlinger ) was a methadone patient of Pompano Treatment Center ( Pompano ). (App. 2). Reutlinger was known to regularly abuse prescription and non-prescription drugs, including cocaine, for many years. (App. 2). Reutlinger abused drugs on the evening of March 10, 1994 and the early morning hours of March 11, He was still impaired on the morning of March 11 th when he left for Pompano s clinic to receive his daily methadone dose. (App. 2). Reutlinger s eyes were red, but he nevertheless received his dose from Pompano on March 11, (App. 2). Gale, a friend of Reutlinger s, specifically discussed this with the nurse at Pompano s clinic. (App. 2). Pompano administered Reutlinger his daily dose of methadone without first testing Reutlinger s blood or urine to determine whether he was already on drugs which might negatively 1 References are to the District Court s decision, appended to this brief (App. 1-4) and to the Petitioner s Jurisdictional Brief (Pet. B. pp. ). 1

7 interact with methadone. (App. 2). Approximately 15 minutes after Reutlinger received his methadone dose, Gale noticed he was disoriented and upset as if he had been doing cocaine or amphetamines. Within 1 hour after receiving his daily methadone dose, Reutlinger caused a car accident, killing Jeffrey Williams, and minor Travonda Williams. (App. 2-3). A state trooper who responded to the accident scene noted that Reutlinger s pupils were dilated even when he looked directly into the sun, and he appeared to be spaced out, or impaired. (App. 2). Toxicology reports revealed that Reutlinger had high levels of cocaine, Valium, codeine and methadone in his system. (App. 3). 2 Theresa Cheeks, the personal representative of Jeffrey s estate and the mother of Travonda, sued Pompano alleging that it breached a duty to decedents by: (a) failing to properly conduct a drug screen urinalysis on Reutlinger; (b) failing to institute and follow policy and procedure for patient management while providing methadone treatment for Reutlinger; and (c) failing to perform proper screening of Reutlinger which would have alerted staff to his impaired condition, so they did not administer methadone. (App. 2). Dr. Dorsey, who owned the methadone clinic, agreed that it would be a deviation from the standard of 2 Reutlinger pled guilty to two counts of DUI manslaughter and was sentenced to 15 years in state prison. (App. 3). 2

8 care to administer methadone to a patient known to be high. (App. 2). Instead, it was Pompano s policy to discharge such patients without medicating them. (App. 2). The trial court granted Pompano s motion for summary judgment, ruling that Pompano owed no duty to the Plaintiff s decedents. On appeal, the Fourth District reversed. In so doing, the Court carefully examined and discussed this Court s decisions in Forlaw v. Fitzer, 456 So. 2d 432 (Fla. 1984) and Pate v. Threlkel, 661 So. 2d 278 (Fla. 1995), and decided this case consistently with the analysis and principles expressed. (App. 4). Pompano now seeks further review. SUMMARY OF THE ARGUMENT This case does not involve a physician s mere prescription of drugs to a known addict. Instead, Plaintiff sued a methadone clinic for administering methadone to a patient who was already noticeably high on other drugs, without conducting proper drug screening, which would have detected that he had already ingested mass quantities of other drugs. Drug screening was not only required by federal regulation, it was entirely within Pompano s control as was the administration of methadone, an opiate. The District Court s decision is entirely consistent with other cases of this Court. The only other case cited is another decision of the same district court, which affords no basis for jurisdiction. 3

9 ARGUMENT THERE IS NO EXPRESS DIRECT CONFLICT BETWEEN THE DISTRICT COURT S HOLDING THAT THERE ARE MATERIAL DISPUTED FACTS PRECLUDING SUMMARY JUDGMENT ON POMPANO S BAD FAITH AND TWO DECISIONS OF THIS COURT DEALING WITH DIFFERENT ISSUES. (ARGUMENT, REPHRASED). Pompano seeks review pursuant to Fla. Const. art. v, section 3(b)(3); Fla. R. App. Proc (a)(2)(A)(iv). These pertinent provisions require a District Court s decision to expressly and directly conflict with a decision of another district court of appeal or Supreme Court on the same question of law. Intradecisional conflict envisions either the announcement of a rule of law which conflicts with a rule previously announced by this Court or of another district court of appeal, or the application of a rule of law to produce a different result in a case which invokes substantially the same controlling facts as a prior case disposed of by this Court or another district court of appeal. Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960). Conflict between decisions must be both express and direct and must be gleaned solely from the facts as stated in the District Court s decision. Reaves v. State, 485 So. 2d 829 (Fla. 1986); Jenkins v. State, 385 So. 2d 1356 (Fla. 1980). Put differently, [i]f the two cases are distinguishable in controlling factual elements... then no conflict can arise. Kyle v. Kyle, 139 So. 2d 885, 887 (Fla. 1962). The primary function of this Court is to stabilize the law 4

10 by a review of decisions which are patently irreconcilable. Florida Power & Light Co. v. Bell, 113 So. 2d 697, 699 (Fla. 1959). In Trustees of Internal Imp. Fund v. Lobean, 127 So. 2d 98, (Fla. 1961), this Court outlined the type of decisional conflict warranting further review as: [a]ntagonistic principles of law [which] must have been announced in a case or cases by the lower court based on practically the same facts. The conflict must be obvious and patently reflected in the decisions relied on. The conflict must result from an application of law to facts which are in essence on all fours, without any issues as to the quantum and character of proof. (Emphasis added). In the instant case, there is no such decisional conflict. Pompano argues that this case conflicts with Werner v. Varner, Stafford & Seaman, P.A., 659 So. 2d 1308 (Fla. 4 th DCA 1995), another decision from the same district court of appeals. Assuming arguendo that such conflict exists, and it patently does not, this still affords no basis for jurisdiction. Fla. Const. art V, 3(b)(3) requires conflict in decisions between two different courts of appeal, not intra-district conflict between two decisions of the same court. The Fourth District s decision is likewise consistent with both Forlaw v. Fitzer, 456 So. 2d 432 (Fla. 1984), and Pate v. Threlkel, 661 So. 2d 278 (Fla. 1985). In Forlaw v. Fitzer, 456 So. 2d 432 (Fla. 1984), Plaintiff sued a doctor and his 5

11 professional association for medical malpractice for prescribing quaaludes to a patient at the patient s request, asserting that the doctor knew or should have known that the patient was addicted to quaaludes. The patient struck and killed a 12 year old bicycler, while under the influence of quaaludes. The case was decided on a motion to dismiss, with this Court emphasizing it was addressing the narrow question of whether prescribing a controlled drug to a known addict is alone enough to render a physician liable. Id. at 434. (emphasis added). In determining it was not, this Court turned to the complaint s allegations. Plaintiff alleged that patient Loomis asked in his first meeting with Dr. Forlaw on December 7, 1978, for a drug to help him sleep. Dr. Forlaw prescribed 36 quaaludes or enough for 36 nights of sleep. Loomis returned to the same doctor 90 days later. In determining the doctor had no liability, this Court examined the length of time between Loomis first and second doctor s visits, and the relatively small number of pills prescribed, which would not indicate to the doctor that Loomis had abused the drug and, if any conclusion could be drawn, might indicate that Loomis was using the drug only when he needed it.... Id. at 435. This Court nevertheless carved out an exception, imposing liability where a doctor acts in bad faith or beyond the scope of his practice.... Id. at 436. It cited federal cases which met this test 6

12 by demonstrating inter alia that the doctor failed to examine patients or obtain a medical history, was told by others that the patient was abusing drugs, but continued to prescribe amphetamines. Id. at 435, n.1, citing United States v. Smurthwaite, 590 F. 2d 889 (10 th Cir. 1979). In Pate v. Threlkel, 661 So. 2d 278 (Fla. 1995), the daughter of a patient with a genetically transferrable disease filed a complaint against her mother s physicians when she learned she was suffering from the same disease and her mother was never warned about genetic transferability. The trial court dismissed the Plaintiff s claim for failure to state a cause of action. The district court affirmed, but certified the following question to this Court: Does a physician owe a duty of care to the children of a patient to warn the patient of the genetically transferrable nature of the condition for which the physician is treating the patient? This Court quashed the decision of the district court deeming dismissal premature, based upon the trial court s conclusion that a lack of privity prevented the Pates from stating a cause of action. Id. at 282. Instead, the proper legal analysis should have focused on , Fla. Stats. (1989) which defined the legal duty owed by a health care provider in a medical malpractice case. Id. at 280. Lack of privity did not necessarily foreclose liability if a duty of 7

13 care was otherwise established. Id. at 281. Indeed, this Court concluded, that when the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties, then the physician s duty runs to those third parties. Id. at 282. Both Forlaw and Pate were decided on motions to dismiss for failure to state a cause of action. In contrast, the instant case was decided on summary judgment, after discovery and a fully developed record. That record shows that (1) Pompano s patient had been doing drugs on the evening of March 10 th and was still impaired when he left for Pompano s clinic the next morning; (2) a friend of the patient s specifically discussed his potential impairment with the clinic s nurse at or around the time Pompano dosed him with methadone; (3) within 15 minutes of his methadone dose, the patient showed visible signs of disorientation and further impairment; (4) the patient s accident with Plaintiff s decedents occurred only 45 minutes later; and (5) an expert toxicologist determined that the patient had other toxic drugs in his system, which could have been determined by drug screening (which was never performed). Dr. Dorsey, the clinic s owner, admitted that administering methadone to a patient known to be high was a departure from the prevailing standard of care. Thus, this case does not involve 8

14 the mere prescription of drugs to a known addict, but the inhouse administration of an opiate to a patient who was already under the influence of other drugs, in circumstances entirely under Pompano s control. As the Fourth District aptly observed: This case is unlike a mere failure to warn case where the doctor prescribes a medication which might have certain effects under certain circumstances at some future time. In those situations, whether the patient takes the medication and then drives is beyond the doctor's control. In fact, whether the patient consumes the medication at all is beyond the doctor's control. Thus, imposition of a duty to unidentifiable third parties under those circumstances would create a zone of risk which would be impossible to define. Cheeks v. Dorsey, 846 So. 2d at The District Court scrupulously followed the duty analysis set down by this Court in McCain v. Fla. Power Corp., 593 So. 2d 500, 501 (Fla. 1992). It determined that Pompano s conduct both foreseeably created a zone of risk based on a general threat of harm to others, and that its conduct foreseeably and substantially caused the Plaintiff s decedents specific injury. Id. at 501. It reasoned that: [T]his case presents a situation in which the variables are, or should be, known to the doctor or health care provider at the time the drug is administered, and the effects are immediate. When one administers a drug which, when combined with other drugs or alcohol, may severely impair the patient, the doctor's failure to take the proper precautions (i.e., verify whether the patient is already under the influence of 9

15 another drug) is an affirmative act which creates the risk that unidentifiable third parties might be injured. Under these circumstances, there is, most certainly, a duty to unidentifiable third parties who may be injured as a result. Cheeks v. Dorsey, 846 So. 2d at 1171 (emphasis added). Pompano, a licensed methadone clinic, urges that this Court accept review because the District Court s decision provides a new expressway for all physicians to be sued.... (I.B. p. 5). In doing so, Pompano ignores the federal regulations it violated, which factor into the bad faith analysis. In this respect, 21 C.F.R (d)(2)(V)(2) mandates that persons responsible for a treatment program ensure certain minimum drug screening tests are performed on each patient, with tests analyzed for opiates, methadone, amphetamines, cocaine and barbiturates. By federal regulation, the clinic assumes responsibility for the amounts of narcotic drugs administered or dispensed C.F.R (d) (2)(D)(v). In determining whether the patient is responsible in handling methadone (and can continue to receive it), the program physician is also required to determine the absence or recent abuse of drugs (narcotic or non-narcotic), including alcohol. 21C.F.R (d)(2)(D)(6)(B) (1). Contrary to suggestion, the District Court decision creates no new law. (Pet. B. p. 5). It simply applies the law, as written, and violated by this particular methadone clinic which 10

16 conducted no testing of its patient, ignored all signs and warnings that its patient was impaired, and added its own dose of opiates to the already high dose of narcotic drugs, that only testing would have revealed. There is simply no conflict between the present case and Forlaw and Pate, based on the case - specific facts presented. The District Court did not agree that this case was one of exceptional importance and did not certify the question. Fla. R. App. Proc (a)(2)(A)(v) (I.B. p.4). It likewise has nothing to do with increased medical malpractice premiums or doctors leaving the state. (Pet. B. p.5). It does have to do with Pompano s violations of law in the treatment of its patient, which led to the foreseeable death of two people. There is simply no express, direct conflict between the District Court s decision and any decision of this Court, warranting further review. CONCLUSION The petition for review should respectfully be denied. Respectfully submitted, Lauri Waldman Ross, Esq. Theresa L. Girten, Esq. LAURI WALDMAN ROSS, P.A. Counsel for Appellee Two Datran Center, Suite S. Dadeland Boulevard Miami, Florida (305)

17 By: Lauri Waldman Ross, Esq. (Fla. Bar No.: ) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. Mail this day of September, 2003 to: Scott Leeds, Esq. LEEDS & COLBY 2950 S.W. 27 th Avenue Suite 300 Miami, Florida Atlee W. Wampler, III, Esq. WAMPLER, BUCHANAN WALKER CHABROW & BANCIELLA, P.A. Sun Trust Intl Center, Suite 1700 One S.E. Third Avenue Miami, Florida (305) By: Lauri Waldman Ross, Esq. CERTIFICATE OF TYPE FACE AND STYLE I hereby certify that the type face and style utilized in this brief is Courier New, 12 point. By: Lauri Waldman Ross, Esq. 12