IN THE SUPREME COURT STATE OF FLORIDA. Case No. SC

Transcription

1 IN THE SUPREME COURT STATE OF FLORIDA Case No. SC NOVA SOUTHEASTERN UNIVERSITY, INC., d/b/a/ NOVA SOUTHEASTERN UNIVERSITY OSTEOPATHIC TREATMENT CENTER, v. Petitioner/Defendant, SUSAN R. BURKE Respondent/Plaintiff, / On Discretionary Conflict Review of a Decision of the Fourth District Court of Appeal RESPONDENT S BRIEF ON JURISDICTION Susan R. Burke 700 Lindell Blvd., #B-315 Delray Beach, FL Petitioner (561)

2 TABLE OF CONTENTS Page Table of Contents...i Table of Authorities...ii Preface...1 Statement of the Case and Facts Jurisdictional Statement...4 Question Presented...5 THE FOURTH DISTRICT HELD THAT A CLAIM OF SEXUAL BATTERY DOES NOT ARISE OUT OF NEGLIGENT MEDICAL TREATMENT AND THAT PRESUIT REQUIREMENTS AND THE TWO-YEAR STATUTE OF LIMITATIONS DO NOT APPLY TO A CLAIM AGAINST THE UNIVERSITY EMPLOYER FOR NEGLIGENT RETENTION. DOES THIS DECISION EXPRESSLY AND DIRECTLY CONFLICT WITH DECISIONS OF OTHER DISTRICT COURTS? Summary of the Argument...5 Argument Conclusion...9 Certificate of Service...10 Certificate of Font Compliance...10 i

3 TABLE OF CITATIONS AND AUTHORITIES CASES PAGE Burke v. Snyder, 899 So.2d 336 (Fla. 4 th DCA 2005) ,9 Department of Health & Rehabilitative Services v. National Adoption Counseling Service, 498 So.2d 888 (Fla. 1986) Doe v. HCA Health Services of Florida, Inc., 640 So.2d 1177 (Fla. 2 nd DCA 1994) Doe v. Young, 656 So.2d 569 (Fla. 5 th DCA 1995) Florida Steel Corporation v. Adaptable Developments, Inc., 503 So.2d 1232 (Fla. 1986) Jackson v. Biscayne Medical Center., Inc., 347 So.2d 721 (Fla. 3 rd DCA 1977) Martinez v. Lifemark Hospital of Florida, Inc., 608 So. 2d 855 (Fla. 3rd DCA 1992) O Shea v. Phillips, 746 So.2d 105 (Fla. 4 th DCA 1999) ,8 St. Anthony's Hospital, Inc. v. Lewis, 652 So.2d 386 (Fla. 2nd DCA 1995 ) OTHER AUTHORITIES Art. V, Section 3(b)(d) Fla. Const Chapter 395 Fla. Stat Chapter 766 Fla. Stat ,7 Fla.R.App.P (a)(2)(A)(iv) Restatement (second) of Torts, s Restatement (second) of Torts, s Section (1)(a) Fla. Stat Section Fla. Stat ii

4 PREFACE The petitioner, Nova Southeastern University, was appellee/ defendant in the lower courts, and respondent, Susan R. Burke, was appellant/plaintiff. The parties are referred to as Nova, the university, or petitioner and Burke or respondent. All emphasis is added unless otherwise specified. The following symbols may be used throughout the brief: PB Petitioner s Brief A - Appendix STATEMENT OF THE CASE AND FACTS Respondent disagrees with and adds to the petitioner s statement as follows: This case arises from the university s alleged administrative, managerial negligence in regard to its decisions and actions involved in retaining professor/osteopath Snyder and for setting an appointment for Burke with him on May 15, 1997 in his campus professor s office during work hours upon referral to Nova for temporomandibular joint symptoms thereby bringing the contact resulting in an alleged violent sexual battery attack by Snyder on Burke injuring her most private sexual and excretory body parts and her emotions which were not under consent for exam or treatment. 1

5 Burke filed her suit against Nova and Snyder on May 10, 2002 for negligence under the ordinary standard of care, not the medical standard of care, for its administrative, managerial decisions and actions in retaining professor/osteopath Snyder as set forth in Restatement (second) of Torts, s and for bringing her into contact with him by virtue of the special relationship of employer/employee set forth in Restatement of Torts, s Burke alleged Nova owed a reasonable duty of care to protect her from the foreseeable, intentionally harmful conduct of employee Snyder while she was an invitee legally on its premises during business hours. 1 A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control. Restatement (second) of Torts, s. 315 (1964). 2 There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection. Restatement (second) of Torts, s. 315 (1964). 2

6 There were no claims for medical negligence on the face of the third amended complaint. The complaint was framed as an attack and ordinary negligence and was filed under the appropriate 4-year statute of limitations for the acts as alleged. (Fla. Stat (3)(a)(o)(p)). Nova had moved to dismiss the third amended complaint based on the affirmative defense of expiration of the 2-yr. statute of limitations, failure to submit the claims to pre-suit under s Fla. Stat. and the precedent of O Shea v. Phillips, 746 So.2d 105 (Fla. 4 th DCA 1999), rev.den. 767 So.2d 459 (Fla. 2002) which held: [P]re-suit notice and screening requirements under Florida's medical malpractice statute apply to a claim against a health care facility for negligent supervision or retention of a doctor accused of sexual misconduct during a medical examination. O Shea, supra., The motion was argued in a non-evidentiary hearing on June 13, 2002 during which the judge granted dismissal based on the precedent of O Shea, Id., but expressed a conflicting statement: I don t think that [the] professional standard of care is ever being used in a rape or a sexual assault....it clearly is not. That s the whole nature of the sexual assault and what the fourth district is saying is sexual assault is included in 766. That is sexual assault is absolutely an intentional tort. 3

7 Burke appealed to the fourth district whom, sitting en banc, reversed and receded from O Shea, supra., holding:...[t]he claim of sexual misconduct in this case is not a claim arising out of negligent medical treatment (malpractice). Therefore, the presuit requirements and twoyear statute of limitations of the medical malpractice statute do not apply to appellant's claim against Nova for negligently hiring, supervising, or retaining Dr. Snyder. Burke, supra. at 338. Nova moved for rehearing which was denied on May 5, Petitioner Nova seeks to invoke the discretionary jurisdiction of this court based on express and direct conflict between the fourth district s decision in Burke v. Snyder, 899 So.2d 336 (Fla. 4 th DCA 2005) and the decisions of other district courts of appeal. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the supreme court or another district court of appeal on the same point of law. Art. V, Section 3(b)(d) Fla. Const. (1980); Fla.R.App.P (a)(2)(A)(iv). 4

8 QUESTION PRESENTED THE FOURTH DISTRICT HELD THAT A CLAIM OF SEXUAL BATTERY DOES NOT ARISE OUT OF NEGLIGENT MEDICAL TREATMENT AND THAT PRESUIT REQUIREMENTS AND THE TWO-YEAR STATUTE OF LIMITATIONS DO NOT APPLY TO A CLAIM AGAINST THE UNIVERSITY EMPLOYER FOR NEGLIGENT RETENTION. DOES THIS DECISION EXPRESSLY AND DIRECTLY CONFLICT WITH DECISIONS OF OTHER DISTRICT COURTS? SUMMARY OF THE ARGUMENT The fourth district s decision that sexual battery does not arise out of negligent medical treatment and that presuit requirements and two-year statute of limitations do not apply to a claim against the university employer for negligent retention does not conflict with any other cases in the state of Florida. ARGUMENT No Direct Conflict Exists This court can only review a district court decision that expressly and directly conflicts with a decision of another district court or this court on the same question of law. [I]nherent or so called "implied" conflict may no longer serve as a basis for this Court's jurisdiction. Department of Health & Rehabilitative Services., v. National Adoption Counseling Service. 498 So.2d 888 (Fla. 1986). The cases cited by Nova do not involve the same question of law. None of the cases involve the question of whether a claim of sexual battery arises out of negligent medical treatment. 5

9 Doe v. Young, 656 So.2d 569 (Fla. 5 th DCA 1995) procedurally, involved a petition for certiorari review. The court found the petitioner attempting to assert argument which had not been made below and thus was not cognizable for the first time on review and denied the writ. The complaint alleged the hospital engaged in negligent security practices which resulted in a sexual battery on a patient, however, that issue was not properly before the court and therefore the Young, Id., decision can not serve as a basis for a direct and express conflict. The decisions Doe v. HCA Health Services of Florida, Inc., 640 So.2d 1177 (Fla. 2 nd DCA 1994) and Jackson v. Biscayne Medical Center., Inc., 347 So.2d 721 (Fla. 3 rd DCA 1977) did not involve claims of sexual battery, but did involve other intentional torts which may provide an implied conflict but fails the direct and express requirement for jurisdictional review. Contrary to Nova s argument (PB,p.4,5,8) that its decisions to select, supervise and retain physicians are protected by pre-suit under Chapter 766 because its decisions in that regard relate to the provisions of patient care, there is no language in Chapter 766 that affords protection to a university who employs some medical personnel. St. Anthony's Hospital, Inc. v. Lewis, 652 So.2d 386 (Fla. 2nd DCA 1995) and 6

10 Martinez v. Lifemark Hospital of Florida, Inc., 608 So. 2d 855 (Fla. 3rd DCA 1992) and any other Florida case involving negligent selection and retention claims against a hospital or ambulatory surgical center (ASC) are distinguished because these entities belong to a statutory class known as licensed health care facilities and as such have duties under s Fla. Stat. for the selection and retention of medical staff in conjunction with statutory obligations for risk management reporting. 3 The university is not a licensed as a hospital or an ASC and therefore is not a member of this class of entities for purposes of inclusion under chapter 766. Statute read in its entirety incorporating relevant portions from Chapter Liability of health care facilities (1) All health care facilities, including hospitals and ambulatory surgical centers, as defined in chapter 395, have a duty to assure comprehensive risk management and the competence of their medical staff and personnel through careful selection and review, and are liable for a failure to exercise due care in fulfilling these duties. These duties shall include, but not be limited to: (a) The adoption of written procedures for the selection of staff members and a periodic review of the medical care and treatment rendered to patients by each member of the medical staff; (b) The adoption of a comprehensive risk management program which fully complies with the substantive requirements of s as appropriate to such hospital's size, location, scope of services, physical configuration, and similar relevant factors. 7

11 makes clear by its repeated emphasis that only hospitals and ASCs have the obligations and benefits afforded thereunder. [A]ny party seeking to receive the benefits of a statute in derogation of the common law must demonstrate strict compliance with the statute's provisions. See Florida Steel Corp. v. Adaptable Developments, Inc., 503 So. 2d 1232, 1234 (Fla. 1986). Nova never raised, defended, or argued in the courts below that its duty to select and review its medical staff arose under chapter 766. It does so for the first time illegally here in its brief petitioning jurisdictional review. Nova did not substantially specifically argue in the lower courts the issue of its direct liability or vicarious liability. It specifically only asked for dismissal based on the ruling in O Shea, supra., as follows: In O Shea v. Phillips, 746 So.2d 1105, 1108 (Fla. 4 th DCA 1999), the Fourth District specifically held that a claim of sexual misconduct by a doctor during a medical examination or procedure is a claim arising out of the rendering of medical care or services, as defined in Fla. Stat. s (1)(a). Accordingly the claims against Nova are subject to the Medical Malpractice Reform Act, and the presuit compliance, as well as the two-year statute of limitations. Nova s Motion to Dismiss Third Amended Complaint, p.2, para.#3 Nova can not now present this issue for the first time in its petition for jurisdictional review to this court. In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is 8

12 to be considered preserved." Tillman v. State, 471 So.2d 32, 35 (Fla. 1985). CONCLUSION This court should decline review. There is no direct or express conflict on the same issue of law between the Burke, supra., decision and those cases cited by Nova to support its petition or any other case in the state of Florida. The fourth district decision is based on the application of sound, wellsettled tenants of law, appropriate rules of statutory construction and logic to the case as it appeared before it for review. Repectfully submitted by, Susan R. Burke Respondent 9

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail to: Paul R. Regensdorf, Stearns Weaver Miller, et al, P.A., 200 East Broward Blvd., Suite 1900, Fort Lauderdale, FL 33301; and Mark A. Hendricks, Esq., Panza, Maurer & Maynard, P.A., 3600 N. Federal Hwy., Fort Lauderdale, FL this 6 th day of October, By: Susan R. Burke 700 Lindell Blvd., #B-315 Delray Beach, FL (561) CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS I HEREBY CERTIFY that this brief complies with the font requirements of Fla.R.App.P (a)(2). By: Susan R. Burke 10