. IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA

. IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA S CASE NO. SC12- 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, etc., et al., Respondent. RESPONDENT'S AMENDED BRIEF ON JURISDICTION On appeal from the Fourth District Court of Appeal of the State of Florida Donna M. Krusbe, Esq. BILLING, COCHRAN, LYLES, MAURO & RAMSEY, P.A. Attorneys for Palms West Hospital 1601 Forum Place, Suite 400 West Palm Beach, FL 33401 Telephone: (561) 659-5970 Facsimile: (561) 659-6173 E-mail: dmk@bcimr.com E-mail for service: wpb-pleadings@bclmr.com

TABLE OF CONTENTS PAGE TABLE OF CITATIONS iii, iv SUMMARY OF ARGUMENT 1 ARGUMENT 1 CONCLUSION 10 CERTIFICATE OF SERVICE 11 CERTIFICATE OF TYPE SIZE & STYLE 12

TABLE OF CITATIONS CASES PAGE Corbo v. Garcia, 3, 7 949 So. 2d 366 (Fla. 2d DCA 2007) Goldman v. Halifax Med. Ctr., Inc., 3 662 So. 2d 367 (Fla. 5th DCA 1995) Integrated Health Care Servs., Inc. v. Lang-Redway, 2, 8 840 So. 2d 974 (Fla. 2003) Lifesouth Comty. Blood Ctrs., Inc. v. Fitchner 4 970 So. 2d 379 (Fla. 2d DCA 2007), rev. granted, 982 So. 2d 1178 (Fla. 2008) Lynn v. Mount Sinai Med. Ctr., Inc., 2, 9 692 So. 2d 1002 (Fla. 3d DCA 1997) Nielsen v. City ofsarasota, 7 117 So. 2d 731 (Fla. 1960) Palms West Hosp. Ltd. P'ship. v. Burns, 2, 5 83 So. 3d 785 (Fla. 4th DCA 2011) Paulk v. Nat'l Med. Enters., Inc., 3, 5, 6 679 So. 2d 1289 (Fla. 4th DCA 1996) Reeves v. North Broward Hosp. Dist., 7 821 So.2d 319 (Fla. 4th DCA 2002) South Miami Hosp., Inc. v. Perez, 7 38 So. 3d 809 (Fla. 3d DCA 2010) Tenet S. Fla. Health Sys. v. Jackson, 7 991 So. 2d 396 (Fla. 3d DCA 2008) m

STATUTES Sec. 766.110, Fla. Stat. (2009) 1, 4 Sec. 766.202, Fla. Stat. (2009) 4 Sec. 95.11, Fla. Stat. (2009) Sec. 766.106, Fla. Stat. 4, 5 Sec. 766.203, Fla. Stat. 5 IV

SUMMARY OF THE ARGUMENT This case presents the question of whether an action against a hospital for negligent retention and supervision of a physician, pursuant to section 766.110, Florida Statutes (2009), is one for medical negligence for which a plaintiff must first comply with presuit requirements. The Fourth District Court of Appeal in this case held that the Petitioner's action for wrongful death based on Respondent's failure to provide gastroenterology services to the patient in the emergency department is one for medical negligence, and reversed the trial court's order denying Palms West Hospital's Motion to Dismiss for Failure to Presuit. The district court's holding is in line with Florida Statutes and cases interpreting them. Petitioner has failed to demonstrate any express or direct conflict with any other decision in this state, that would justify exercise of discretionary jurisdiction by this Court. ARGUMENT THE FOURTH DISTRICT COURT OF APPEAL'S DECISION DOES NOT EXPRESSLY OR DIRECTLY CONFLICT WITH ANY DECISION FROM THIS COURT OR ANY DISTRICT COURT OF APPEAL; THEREFORE, THERE IS NO BASIS FOR THIS COURT TO EXERCISE DISCRETIONARY JURISDICTION. There is no basis for this Court to exercise discretionary jurisdiction based on inter-district conflict. The Fourth District Court's decision in Palms West 1

Höspital Ltd. Partnership v. Burns, 83 So. 3d 785 (Fla. 4th DCA 2011), does not conflict with either this Court's decision in Integrated Health Care Services, Inc. v. Lang-Redway, 840 So. 2d 974 (Fla. 2003) or the Third District Court of Appeal's decision in Lynn v. Mount Sinai Medical Center, Inc., 692 So. 2d 1002 (Fla. 3d DCA 1997). Petitioner has not demonstrated any case in which, on similar facts, a court has reached a different conclusion, resulting in inter-district conflict warranting review. Rather, this action is simply an attempt to seek a second review and revive a claim that was properly dismissed because Petitioner did not comply with statutory presuit requirements. Petitioner incorrectly claims that the Fourth District Court's decision ensures that claims such as his will never be addressed in the court system. Although the decision certainly results in his claim not being addressed because of his own failure to comply with presuit requirements, the decision does not preclude others who are similarly situated from seeking redress after complying with the statute. As the Fourth District Court of Appeal properly concluded, Petitioner's characterization of his claim as one for "administrative" negligence does not automatically remove it from the purview of medical negligence. In fact, in its Petition for Writ of Certiorari, Palms West cited several cases which demonstrate that even when a health care provider's act initially involves an administrative or economic decision, if an injury results in the context of providing or failing to 2

pròvide medical care, the lawsuit is one for medical malpractice requiring compliance with statutory presuit. See, e.g. Corbo v. Garcia, 949 So. 2d 366 (Fla. 2d DCA 2007)(holding that where patient was burned during the use of physical therapy equipment that had been negligently maintained, the claim was one for medical negligence because the injury occurred as a direct result of receiving treatment and the wrongful act was directly related to the improper application of medical services and use of professional judgment or skill.); Paulk v. Nat'l. Med. Enters., Inc., 679 So. 2d 1289 (Fla. 4th DCA 1996)(scheme to defraud patients by extending hospital stays to exhaust insurance coverage was suit for medical negligence); Goldman v. Hahfax Med. Ctr., Inc., 662 So. 2d 367 (Fla. 5th DCA 1995)(holding that plaintiff's claim arose out of the rendering of medical services where she was injured when her silicone breast implants ruptured after excessive pressure was applied because the mammographic equipment had not been properly calibrated.) Thus, these cases make it clear that, even though business and administrative decisions may initially be involved, when the consequence of those decisions is injury to a person during the provision of medical services, the ensuing claim is one for medical negligence. These decisions, as well as the Fourth District's decision in this case, comport with the medical malpractice statutes. Indeed, the Legislature broadly defines "medical negligence" as "medical malpractice, whether grounded in tort or 3

in 'contract." 766.202(7), Fla. Stat. (2009)(emphasis added); see also 95.11(4)(b), Fla. Stat. (2009)(defining an "action for medical malpractice" as "a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care.")(emphasis added); Lifesouth Comty. Blood Ctrs., Inc. v. Fitchner, 970 So. 2d 379 (Fla. 2d DCA 2007), rev. granted, 982 So. 2d 1178 (Fla. 2008)(noting that in 2003, the legislature amended section 766.106 "to remove the focus of the chapter from traditional medical malpractice to all situations of medical negligence involving diagnosis, treatment, and care.") Thus, the Legislature has provided that the medical malpractice statutes apply to negligence in making business decisions, such as maintenance of medical equipment and even insurance fraud, when injury from that negligence results in the course of delivering medical services. The analogy extends to actions for negligent retention and supervision of physicians under section 766.110, Florida Statutes, especially where, as here, the patient is alleged to have died as a result of not having received proper care. The hospital's business decision to contract with certain physicians becomes actionable as medical malpractice when injury is alleged to have resulted from the delivery or failure to deliver medical services. As 4

the'fourth District Court of Appeal recognized, the medical malpractice umbrella is very wide. See Burns, 83 So. 3d at 790. The concept of a business decision resulting in a medical negligence action was also explored in Paulk, where the personal representatives of a patient sued hospitals alleging a criminal enterprise to defraud patients by extending hospitalization without medical necessity in order to exhaust insurance coverage. This court affirmed the dismissal of the lawsuit for failure to comply with Chapter 766 presuit requirements and held that "the fraudulent rendering of unnecessary medical care and services is encompassed by the term 'arising out of the rendering of... medical care or services.'" Id. at 1289-1290. The court undertook an analysis of sections 766.106 and 766.203, both of which address the types of cases to which the medical malpractice statute applies, and concluded that, even though the case did not involve personal injury or death, the claims nevertheless arose from the provision of medical services and could not be proven "without adducing evidence as to the medical necessity for the hospitalization periods." Id. at 1290. In Paulk, the plaintiffs argued that their claims were "not predicated on a breach of the professional standard of care appropriate for the patient's condition." Paulk, 679 So. 2d at 1290. But the court rejected that argument noting that the allegations of the plaintiffs' own complaint belied that argument. Id. The court considered it telling that the plaintiffs had alleged that the decedent "'was in need 5

of 'psychiatric treatment'; that the providers... 'failed to provide [decedent] with any meaningful treatment'; and that the treatment provided was 'without proper regard for [decedent's] medical needs.'" Id. at 1290-1291. The rationale in Paulk applies with even more force in the present case where the alleged wrongful act is directly related to the provision of medical services to Mr. Casasnovas. Plaintiff's claims are clearly based in medical negligence because in order to prove that Palms West's alleged failure to timely obtain a gastroenterology consultation for Mr. Casasnovas caused his death, the plaintiff must adduce evidence that such a consultation was medically necessary and the failure to provide the consultation was a breach of the medical standard of care. Moreover, as in Paulk, the allegations of Petitioner's Third Amended Complaint support this conclusion. Here, the Petitioner alleged that Mr. Casasnovas was admitted to Palms West and received medical treatment. In the course of delivering said treatment, it was determined that Mr. Casasnovas needed a gastroenterology consultation, but the hospital allegedly failed to provide those services and, as a result, Mr. Casasnovas died. Petitioner's claim is decidedly one for medical malpractice. In proving his allegations that the hospital's alleged negligent retention of the physicians who did not respond to treat Mr. Casasnovas caused his death, Petitioner must introduce evidence of the prevailing standard of care in the 6

community for health care providers, see, e.g. Tenet S. Fla. Health Sys. v. Jackson, 991 So. 2d 396, 399 (Fla. 3d DCA 2008); South Miami Hosp., Inc. v. Perez, 38 So. 3d 809 (Fla. 3d DCA 2010), as well as evidence that the failure to render treatment caused Mr. Casasnovas' death. See, e.g. Corbo, 949 So. 2d at 366; Reeves v. North Broward Hosp. Dist., 821 So. 2d 319 (Fla. 4th DCA 2002). The Fourth District Court of Appeal concluded, correctly, that Petitioner's claims of negligent retention arose out of the rendering of, or failure to render, medical care and treatment and are, therefore, medical negligence claims. This decision comports with the law and does not conflict with any other decisions. A conflict that warrants exercise of this Court's jurisdiction arises when two courts have reached different results based on substantially similar facts. See Nielsen v. City ofsarasota, 117 So. 2d 731 (Fla. 1960). Jurisdiction does not arise simply because this Court might have reached a different result. Id. Factual similarity between the allegedly conflicting decisions is critical. Id. Based on this standard, this Court should not assert jurisdiction. The district court applied the correct legal standard in determining that Petitioner's claim is a medical negligence claim that was subject to Chapter 766 statutory presuit requirements. Petitioner has not referenced a single case in which a different result was reached on facts similar to those this case. There simply is no direct conflict which would justify the exercise of discretionary jurisdiction. 7

^ Contrary to Petitioner's argument, the dstrict court's decision does not directly conflict with Lang-Redway. First, there is absolutely no similarity between the facts in this case and those in Lang-Redway, which was a suit to enforce rights enumerated under Chapter 400, Florida Statutes, the nursing home statutes. Id. at 975. The issue in Lang-Redway was whether the plaintiff was required to comply with Chapter 766 medical malpractice presuit requirements when his claim was brought under Chapter 400. Id. This Court ultimately held that Chapter 766 does not apply to actions under Chapter 400, that the nursing home was not a "health care provider" for purposes of the medical malpractice statute, and that the claim was not, therefore, one for medical malpractice. Not one factual similarity exists between this case and Lang-Redway. Here, rather than identifying how the Fourth District Court's decision conflicts with Lang-Redway, Petitioner simply re-argues the same case that he presented to the Fourth District, i.e. that his case does not require proof of the medical standard of care because this is an administrative negligence case. It is not enough, however, for Petitioner to simply say that this case is about administrative negligence and that the physicians' failure to appear was not medically related. The fact is, Petitioner has asserted a claim which arose out of the rendering of, or failure to render, medical care and treatment. Like it or not, the Legislature has decided that these types of cases are included in the definition of "medical negligence" and, 8

thei efore, require compliance with presuit procedures. The Fourth District merely followed the Legislature's mandate. Similarly, Petitioner has likewise failed to demonstrate any conflict with the Third District Court of Appeal's decision in Lynn. Petitioner acknowledges that the facts in Lynn are different, but claims there is a "decisional conflict." Lynn is distinguishable from this case on all bases, however, and does not support conflict review. A conflict does not arise simply because two courts reach different conclusions. meaningful. There must also be a similarity in the facts for the differences to be It is disingenuous to assert that there is a decisional conflict merely because the Lynn court held that the medical malpractice statutes did not apply to that set of facts. In Lynn, unlike here, the plaintiff was not a patient and the negligence did not occur during the delivery of healthcare services. The negligence was the mislabeling and mixing up of urine samples for drug testing resulting in an erroneous report that resulted in the plaintiff losing her job. The court correctly concluded that because there was no medical skill or judgment involved, the suit was not one for medical negligence. By contrast, in this case, there was medical skill or judgment involved while Mr. Casasnovas was receiving medical treatment. It is not enough to say that the hospital's decision to contract with certain physicians did not involve medical judgment; therefore, this is not a medical malpractice case. The cases discussed 9

abóve teach that even non-medical, business decisions can eventually be subject to challenge within the medical malpractice scheme under many circumstances. Petitioner's analysis does not go far enough in considering whether this is a medical malpractice claim. One must look beyond the narrow scope of the hospital's business decision to contract with physicians, and consider, instead, whether the hospital deviated from the medical standard of care in failing to provide gastroenterology to this patient, Mr. Casasnovas, as a result of negligently retaining physicians. Absent an alleged injury, Petitioner would otherwise have no standing to challenge a contract between Palms West and the physicians. Clearly, this is a claim for medical malpractice, as that term is broadly defined by the statute. The Fourth District Court of Appeal's decision follows the law and Petitioner has failed to identify any conflict at all, much less a real and direct conflict between cases with similar facts that would justify exercise of discretionary jurisdiction by this Court. CONCLUSION This Court should not exercise discretionary jurisdiction because the Fourth District Court of Appeals' opinion in Burns does not expressly, directly, or otherwise conflict with any other district court or Supreme Court decision. 10

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically mailed on this 21st day of September 2012, to: Andrew A. Harris, Esq., Burlington & Rockenbach, P.A. at aah@flappellatelaw.com and jew@flappellatelaw.com. Respectfully submitted, BILLING, COCHRAN, LYLES, MAURO & RAMSEY, P.A. Attorneys for Defendant, DONNA M. KRUSBE, Esq. Florida Bar No. 975631 1601 Forum Place, Suite 400 West Palm Beach, FL 33401 Phone (561) 659-5970 Fax (561) 659-6173 E-mail: dmk@bclmr.com Service e-mail: wpb-pleadings@bclmr.com 11

CERTIFICATE OF TYPE SIZE & STYLE Respondent hereby certifies that the type size and style of the Brief of Respondent on Jurisdiction is Times New Roman 14 pt. DONNA M. KRUSBE Florida Bar No. 975631 12