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] lemonically I-ikd 03/l K/20l3 J I:21:46 A51 lit RECEIVED, 3/lWZOI3 11:23:½, l'homas D. Hall, Clerk. Supreme Cuurt IN THE SUPREME COURT OF FLORIDA DONALD MCSER, Supreme ccurt. Case Nc. Plair.tiff/Petit.ior.er F'5fth DCA Case No. 5D OMNT F[EALTHCARE, TNC. De f endar. L /Respondent. / PETITIONER'S BRIEF ON JURISDICTION IN S'JPPORT OF NOTICE TO INVOKE 2:SCRETIONARY s-urisdiction TO REVIEW DECISION OF THE EIFTH DISTRICT COUP.T OF APPEAL OF THE STATE Ob' FLORIDA -.aw Offices of Frank Shaughnessy, P.A. /S/ FRANK J. SHAUGRNESSY, ESQ. Florida Bar No, 0059961 1490 Emerson Dr, NF: Palm Bay, F1 3290 / (321) 725-6344 (321) 725-6411 fà A-.torney for Petitioner/Appellec

TABLE OF CONTENTS TABLE OF CASES STATEMENT OF THE CASE AND FACTS... 1 SUMMARY O F ARGUMENT... 2-3 ARGUMENT S... 3-13 A. The Fifth District' s decision ("Decision") changes the standard of a district court's jurisdictional limitations in direct conflict with other district courts and the Florida Supreme court that recognize Fl. R. App. P. 9.030 (b) (2) (A) as the standard. 3-4 B. The Decision is in conflict with the application of Oken's1 med-mal exception as followed by the Supreme Court and other district courts, ignores both the Oken three-prong test to apply the exception and Oken's caution that certiorari should rarely be utilized. 4-6 C. The Decision is in conflict with other district courts and the Supreme Court by requiring a Plaintiff to comply with Chapter 766 presuit requirements when neither of the two elements that subject a suit to Florida's Medical Malpractice Act are present; (1) a claim of medical Williams v. Oken, 62 So.3d 1129 (Fla., 2011)

negligence and (2) a health care provider defendant, this is of great public importance. 6-7 D. The Decision is in conflict with the standards recognized by the Supreme Court and other district courts for a court reviewing of a complaint for a motion to dismiss. 8-9 E. The Decision conflicts with the Supreme Court and other district courts by denying the Petitioner the opportunity to amend after material facts were discovered while the appeal was pending, this is of great public importance. 9-11 F. The Decision is of great public importance within the Fifth District as it is in conflict with both an earlier and later case, the public should have confidence that similar cases will receive similar outcomes. 11-13 CONCLUSION... 13 CERTIFICATE OF SERVI CE AND COMPLIANCE... 14

TABLE OF CASES Buchanan v. Lieberman, 526 So.2d 969 (Fla. 5th DCA 1988).... 3 J.B. v. Sacred Heart Hosp., 635 So.2d 945, (Fla. 1994).... 12 Lakeland RMC v. Allen, 944 So.2d 541 (Fla. 2"d DCA 2006)... 3 Martin-Johnson v. Savage, 509 So.2d 1097 (Fla., 1987)..... 6 Mobley v. Hirschberg, 915 So.2d 217 (Fla. 4th DCA 2005).... 3 Papa John's v. Consentino, 916 So.2d 977 (Fla. 4th DCA 2005)..9 Palmer v. McCallion, 645 So.2d 131 (Fla. 4th DCA 1994)...9 Parkway Bank v. Ft. Myers, 658 So.2d 646 (Fla. 2"d DCA 1995)..5 Pierrot v. Osceola Mental Health, No. 5D11-2513 (Fla. 5th DCA January 11, 2 0 13 )... 12 Pizzi v. Central Bank Trust, 250 So.2d 895 (Fla. 1971).... 8, 9 Stackhouse v. Emerson, 611 So.2d 1365 (Fla. 5th DCA 1993)... 11 Trotter v. Ford Credit, 868 So.2d 593, 595 (Fla. 2d DCA 2004).10 Wein stoc k V. Groth, 62 9 So. 2 d 8 35, ( F1a. 1993)... 7 Williams v. Oken, 62 So. 3d 112 9 ( Fla., 2 0 11)..... 5, 6

STATEMENT OF THE CASE AND FACTS1 This petition to invoke the discretionary jurisdiction of this court is pursuant to Fl. R. App. P. 9.30(a) (2) (A) (iv) and (V), as well as Article V, section 3(b)of the Florida Constitution. The Fifth District Court of Appeal decision below (the "Decision"), dated December 7, 2012 granted the Respondent's petition for writ of certiorari, quashed the trial court order denying Respondent's motion to dismiss the amended complaint and remanded the case. Petitioner timely filed motions for rehearing, written opinion and clarification, all denied February 8, 2013. The Decision became final February 8, 2013 upon issuance of the Fifth District Court of Appeals' Mandate. The Petitioner timely filed notice to invoke the discretionary jurisdiction of this Court February 20, 2013. The Petitioner filed a complaint alleging simple negligence just before the expiration of the tort statute of limitations. Petitioner amended once by right, the amended complaint alleged that Respondent was a domestic Florida corporation. Respondent was not alleged to be a health care provider. 1 This statement only recites the key facts as necessary for this Court's jurisdictional review. When this Court accepts jurisdiction, Petitioner will provide an expanded statement of facts of the lower court and Fifth District activity related to these issues. 1

Medical negligence was not alleged. Petitioner alleged negligent supervision of an employee and negligent failure to secure medical records. Respondent filed a motion to dismiss with prejudice arguing failure to comply with Chapter 766's presuit requirements. The trial court heard argument and asked for briefs. After review of the briefs, the trial court denied defendant's motion. Respondent petitioned the Fifth District Court for a writ of Certiorari to review the trial court's non-final order. The case was not stayed and discovery continued. Material facts were discovered. Respondent answered interrogatories stating their employee (Ms. Bailey) was employed as office staff and had no medical license. Ms. Bailey allegedly caused Petitioner's damages by accessing his medical records, then misinterpreting a lab report and providing false information. Copies of the Decision and Mandate are included in this Brief's Appendix. SUMMARY OF ARGUMENTS The Decision requires Petitioner to follow Chapter 766 procedural requirements when there is no allegation of a health care provider or medical negligence within the four-corners of 2

the amended complaint. This is in direct conflict with decisions of other district courts and the Supreme Court. Arguably within the Fifth District the Decision will require future plaintiff compliance with Chapter 766 to sue over a sexual assault2, tainted turkey sandwich3 or being struck in the face by a dentist's x-ray machine4, in direct conflict with other district courts and the Supreme Court. The Decision is of great public important as it erodes the public confidence that similar cases will receive similar outcomes. This Court should accept jurisdiction to resolve the conflicts that the Fifth District Decision creates and to ensure that Florida courts continue to offer future plaintiffs justice, fairness, equity and access to the courts. ARGUMENTS A. The Fifth District's decision ("Decision") changes the standard of a district court's jurisdictional limitations in direct conflict with other district courts and the Florida Supreme court that recognize Fl. R. App. P. 9.030 (b) (2) (A) as the standard. 2 Buchanan v. Lieberman, 526 So.2d 969 (Fla. 5th DCA 1988), sexual assault during physical exam was not med mal. 3 Lakeland Reg. Med. Center v. Allen, 944 So.2d 541 (Fla. 2"4 DCA 2006) tainted turkey sandwich not med mal. 4 Mobley v. Hirschberg, 915 So.2d 217 (Fla. 4th DCA 2005) Mobley sued dentist in simple negligence for personal injury. 3

A District Court's review a non-final order is governed by Fla. R. App. P. Rule 9.130(b) (2) (A) that "limits review to those specified in the rule".5 The instant order denying Petitioner's motion to dismiss does not fit the within the limitations of the Rule. The general rule is, "certiorari review is inappropriate to review the denial of a motion to dismiss".' Florida courts do recognize Oken's "exception to the general rule..and permit certiorari review when the presuit requirements of a medical malpractice stature are at issue."7 B. The Decision is in conflict with the application of Oken's' med-mal exception as followed by the Supreme Court and other district courts, ignores both the Oken three-prong test to apply the exception and Oken's caution that certiorari should rarely be utilized. The Fifth District relied on the Oken exception as a basis for certiorari jurisdiction, however misapplied the exception to a complaint that pled simple negligence against a defendant only alleged to be "a domestic Florida corporation". Oken was clearly case of medical negligence, Williams suffered a heart attack and sued Dr. Oken alleging negligent diagnosis, complying with all presuit requirements. At issue in Oken was whether Williams' medical expert was "qualified". The 5 Williams v. Oken, 62 So.3d 1129 (Fla., 2011) 6 Ibid 7 Ibid 8 Ibid 4

facts are completely unlike Petitioner's suit alleging simple negligence against a "domestic corporation". The Supreme Court explained in Oken how a petitioner must establish three prongs before a district court can grant certiorari relief from a denial of a motion to dismiss. Those prongs are: 1. departure from the essential requirements of the law; 2. resulting in material injury for the remainder of the case; 3. that cannot be corrected on postjudgment appeal. Respondent argued a departure and claimed harm but never carried the burden of proving that the harm was material or could not be corrected by postjudgment appeal. The Supreme Court, approving the Second DCA's Parkway Bank9 case, explained that Oken's last two prongs must be analyzed before a court may consider the first element. "If the jurisdictional prongs of the standard threepart test are not fulfilled, then the petition should be dismissed rather than denied."1 The Supreme Court further cautioned that; "In granting writs of..certiorari, district courts..should..be..concerned with the seriousness of the error". 9 Parkway Bank v. Ft. Myers, 658 So.2d 646 (Fla. 2 d DCA 1995) 1 Ibid at 649 5

The Supreme Court advised; "A district court may refuse to grant a petition..certiorari even though there may have been a departure from the essential requirements of law."" The Supreme Court in Martin-Savage" explained that harm might not matter noting; "Even when the order departs from the essential requirements of the law, there are strong reasons militating against certiorari review. For example, the party injured.. may eventually win the case..or the order may appear less.. harmful in light of the development of the case after the order". Recognizing that newly discovered facts revealed during discovery may require amendments to the complaint. The Decision contains no analysis of the three-prongs, no discussion of the three-prong's application to allow the grant of the exception, yet the Fifth District granted certiorari relief only citing to the exception. C. The Decision is in conflict with other district courts and the Supreme Court by requiring a Plaintiff to comply with Chapter 766 presuit requirements when neither of the two elements that subject a suit to Florida's Medical Malpractice Act are present; (1) a claim of medical negligence and (2) a health care provider defendant, this is of great public importance. Williams v. Oken, 62 So.3d 1129, 1133 (Fla. 2011) Martin-Johnson v. Savage, 509 So.2d 1097 (Fla., 1987) 6

Florida plaintiffs are required to comply with the procedural requirements of Chapter 766. However, for those procedural and presuit requirements to apply the complaint must allege medical malpractice within its four-corners and against a defendant(s) that is health care provider. The Supreme Court stated in Weinstock", health care providers are; "defendants in a medical malpractice action who are health care providers as defined in chapter 766 or... are vicariously liable for the acts of a health care provider." In the instant case, the defendant is alleged to be a "domestic Florida corporation" whose employee caused damages to Petitioner. Moreover, as discovery revealed the employee is not a licensed health care provider. The instant case is not a medmal case against a health provider, or a med-mal case against a defendant whose is vicariously liable for the acts of a health care provider. Neither element is present. The Decision is in direct conflict with the Supreme Court's Weinstock" decision and all other district courts that follow Weinstock's two elements for requiring compliance with Chapter 766's procedural requirements. Weinstock v. Groth, 629 So.2d 835, (Fla. 1993) Ibid 7

D. The Decision is in conflict with the standards recognized by the Supreme Court and other district courts for a court reviewing of a complaint for a motion to dismiss. The Decision states "respondent filed a complaint attempting to allege simple negligence against Petitioner...a "physician group practice". The is clear..what is alleged is a Fifth District then states, "it claim for medical malpractice." The Fifth District's characterizing Respondent as a "physician group practice" finds a material fact not appearing on face of the amended complaint. Petitioner alleged Respondent is a "domestic Florida corporation" and never uses the phrase "physician group practice" within the amended complaint. The Fifth District further goes past the four-corners by stating, the complaint "alleged...a claim for medical malpractice". The mistakes of ignoring the four-corners then leads to the misapplication of the Oken med-mal exception for a misplaced basis of jurisdiction and becomes the basis for the affirmative defense of failure to comply with the presuit requirements that the Decision grants. The Decision is in direct conflict the Supreme Court's four corners rule" set out in Pizzi" for courts reviewing complaints for a motion to dismiss under Fla. R. Civ. P. is Pizzi v. Central Bank Trust, 250 So.2d 895 (Fla. S. Ct. 1971) 8

1.110 (d). The Supreme Court's four-corner test is; "a court must confine itself strictly to the allegations within the four corners of the complaint."" The Fourth DCA instructed in Papa John's"; the facts alleged in the complaint must be accepted as true and all reasonable inferences are drawn in favor of the pleader." The Fifth District's Decision is in direct conflict with Palmer v. McCallion" and N.E. at West Palm Beach, Inc. V. Horowitz" where those district courts noted that; "if the face of the complaint contains allegations which demonstrate the existence of an affirmative defense, then such a defense may be considered on a motion to dismiss. Otherwise an affirmative defense may not be considered on a rule 1.140(d) motion to dismiss."papa John's20 In effect by finding undisputed facts (not within the fourcorners) then applying the law (the affirmative defense) the Decision grants summary judgment. Facts are for the jury to find, law is the providence of the courts. E. The Decision conflicts with the Supreme Court and other district courts by denying the Petitioner the opportunity to amend after material facts were Pizzi v. Central Bank Trust, 250 So.2d 895 (Fla. S. Ct. 1971) Papa John's v. Consentino, 916 So.2d 977 (Fla. 4th DCA 2005) is Palmer v. McCallion, 645 So.2d 131 (Fla. 4 DCA 1994) 19 N.E. W. Palm Bch v. Horowitz, 471 So.2d 570 (Fla. 3rd DCA 1985) 20 Papa John's v. Consentino, 916 So.2d 977 (Fla. 4th DCA 2005) 9

discovered while the appeal was pending, this is of great public importance. Petitioner had requested clarification as to whether the Decision allowed amendment, the motion was denied without comment. The Decision simply states, "remand for an entry of an order granting (Respondent's) Motion to Dismiss". Respondent had filed a Motion to Dismiss with Prejudice. The Fla.R.Civ.P. rules allow amending "freely when justice so requires" Rule 1.190(a). A court should grant a party leave to amend the complaint "unless the privilege of amendment has been abused or it is clear that the complaint cannot be amended to state a cause of action.n21 Newly discovered material facts were revealed by Respondent's answers to interrogatories. Respondent's answers stated that Isabel Bailey was it's office staff employee with no medical license. Ms. Bailey is alleged to have improperly accessed Petitioners' medical records and misinterpreted a report. The instant circumstance appears to be envisioned by the Fla.R.Civ.P. Rule 1.190(a) that allows amendment "freely when justice so requires". The Petitioner should be granted this 21 Trotter v. Ford Motor Credit Corp., 868 So.2d 593, 595 (Fla. 2d DCA 2004) 10

right, to file an amended complaint, because dismissal with prejudice would forever end his action. F. The Decision is of great public importance within the Fifth District as it is in conflict with both an earlier and later case; the public should have confidence that similar cases will receive similar outcomes. The Fifth District case of Stackhouse v. Emerson" was the basis of the Petitioner's action against Respondent. Stackhouse successfully sued Dr. Emerson for simple torts committed by a doctor. The defense moved to dismiss the complaint for failure to comply with the two-year statute of limitations and the trial court denied. The Fifth District held "Succinctly stated, what we have here are claims for intentional torts independent of any medical diagnosis, treatment or care... To accept appellees' contention that their acts, as set forth in the complaint, are barred by the statute of limitations... would lead to the absurd result that every wrongful act committed by a amounts to medical malpractice."" The health care provider Fifth District denied the writ and allowed Stackhouse to proceed. Stackhouse v. Emerson, 611 So.2d 1365 (Fla. 5th DCA 1993) 23 Ibid 11

On January 11, 2013, the Fifth District filed it's opinion of Pierrot v. Osceola Mental Health24. Pierrot brought a wrongful death action against the defendant alleging violations of a patient's rights under the Baker Act. Defendant's moved to dismiss with prejudice arguing the claim was one of med-mal and Pierrot's failure to comply with presuit requirements. The trial court granted the motion noting the claim was "inescapably one for medical negligence" and the presuit requirements applied. In Pierrot, the Fifth District cited to J.B. v. Sacred Heart25 for the proposition that "for the requirements to apply, the claim must be for medical malpractice". Further, the Fifth District noted; "the presuit requirements of Florida's Medical Malpractice Act restrict plaintiffs' constitutional right of access to courts, so the requirements' applicability must be construed narrowly in favor of access." The Fifth District also noted, "the defendant must be a health care provider. Neither of these elements was present here."26 24 Pierrot v. Osceola Mental Health, No. 5D11-2513 (Fla. 5th DCA January 11, 2013). 25 J.B. v. Sacred Heart Hosp., 635 So.2d 945 (Fla. 1994) 26 Pierrot v. Osceola Health, No. 5D11-2513 (Fla. 5th DCA January 11, 2013) 12

Neither element is present in Petitioner's simple negligence action and should receive the same treatment as Stackhouse and Pierrot. However, the results greatly differ. The greatly differing results from the same District Court of Appeal, Pierrot within a month of the filing of the instant opinion will erode public confidence in the court system. And encourage the defense bar to bring forth the same attack against future plaintiffs, that their actions against any health care provider or their unlicensed employees for any tort is med-mal and requires strict compliance with all the restrictive Chapter 766 procedures. This will wrongly limit the public's constitutional right of court access. This is of great public importance and great importance to the courts. CONCLUSION This Court may exercise discretionary jurisdiction to review any decision of a district court of appeal that directly conflicts with the decisions of other district courts or of the supreme court on the same question of law or is certified to be of great public importance. Petitioners respectfully request this Court accept jurisdiction in this case based upon the direct conflicts and issues of great public importance created by the Decision of the Fifth District. 13

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Brief on Jurisdiction has been served via United States mail to Thomas E. Dukes, III, Esq., McEwan, Martinez & Dukes, P.A., P.O. Box 753, Orlando, FL 32802-0753, on this 18th day Of MarCh 2013. /S/ FRANK J. SHAUGHNESSY, ESQ. Law Offices of Frank Shaughnessy, 1490 Emerson Dr. NE Palm Bay, Fl 32907 (321) 725-6344 (321) 725-6411 fax Florida Bar No. 0059961 Attorney for Petitioner/Appellee P.A. CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS I HEREBY CERTIFY that this computer generated Brief on Jurisdiction submitted in Courier New 12 point font complies with the requirements of Rule 9.210(a) (2), Florida Rules of Appellate Procedure. /S/ Frank J. Shaughnessy. Esq. Attorney for Petitioner/Appellee 14

APPENDIX 1. Order from Fifth DCA, filed December 7, 2012, 2. Mandate from Fifth DCA, February 8, 2013, 1

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2012 OMNI HEALTHCARE, INC., NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED Petitioner, v. Case No. 5D12-1235 DONALD MOSER, Respondent. / ADWAIT JATHAL, M.D., Petitioner, v. Case No. 5D12-1245 DONALD MOSER, Respondent. Opinion filed December 7, 2012 Petition for Certiorari Review of Order, from the Circuit Court for Brevard County Robert T. Burger, Judge. Wilbert R. Vancol and Thomas E. Dukes, Ill, of McEwan, Martinez & Dukes, P.A., Orlando, for Petitioner, Omni Healthcare, Inc. Michael R. D'Lugo, of Wicker, Smith, O'Hara, McCoy & Ford, P.A., Orlando, for Petitioner Adwait Jathal, M.D. Frank J. Shaughnessy, of Law Offices of Frank Shaughnessy, P.A., Palm Bay, for Respondent.

PER CURIAM. Respondent filed a complaint attempting to allege simple negligence against Petitioners, who are a doctor, Adwait Jathal, and a physician group practice, Omni Healthcare, Inc. It is clear that what is alleged is a claim for medical malpractice. Petitioners filed a Motion to Dismiss in the trial court based on Respondent's failure to comply with the presuit requirements of section 766.106, Florida Statutes. The trial court denied the Motion, and Petitioners each filed a Petition for Writ of Certiorari with this court seeking review of that order 1 We conclude that because Respondent failed to comply with the statutory presuit requirements, the trial court departed from the essential requirements of law in refusing to dismiss Respondent's complaint. We grant the Petitions, quash the order of denial, and remand for entry of an order granting Petitioners' Motion to Dismiss. See Williams v. Oken, 62 So. 3d 1129, 1133-34 (Fla. 2011) ("Florida courts have created an exception to the general rule-that certiorari review is inappropriate to review the denial of a motion to dismiss-and permit certiorari review when the presuit requirements of a medical malpractice statute are at issue. See, e.g., Martin Mem'l Med. Ctr., Inc. v. Herber, 984 So. 2d 661, 662 (Fla. 4th DCA 2008); Lakeland Req'l Med. Ctr. v. Allen, 944 So. 2d 541, 543 (Fla. 2d DCA 2006). The certiorari exception for the chapter 766 presuit requirements is premised on the purpose of the Medical Malpractice Reform Act-to avoid meritless claims and to encourage settlement for meritorious claims.").2 1 Although these cases were not consolidated on appeal, we review them together because they arise from the same facts and present the identical issue. 2 See also Kissimmee Health Care Assocs. v. Garcia, 76 So. 3d 1107, 1108 n.1 (Fla. 5th DCA 2011) ("Although certiorari generally does not lie to review the denial of a 2

PETITIONS GRANTED; ORDER QUASHED; REMANDED. ORFINGER, CJ., SAWAYA, and BERGER, JJ., concur. motion to dismiss, there is a well-established exception for motions to dismiss for failure to comply with presuit conditions precedent." (citation omitted)); Cent. Fla. Req'l Hosp. v. Hill, 721 So. 2d 404 (Fla. 5th DCA 1998). 3

M A N D A T E from DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT THIS CAUSE HAVING BEEN BROUGHT TO THIS COURT BY APPEAL OR BY PETITION, AND AFTER DUE CONSIDERATION THE COURT HAVING ISSUED ITS OPINION OR DECISION; YOU ARE HEREBY COMMANDED THAT FURTHER PROCEEDINGS AS MAY BE REQUIRED BE HAD IN SAID CAUSE IN ACCORDANCE WITH THE RULING OF THIS COURT ATTACHED HERE TO AND INCORPORATED AS PART OF THIS ORDER, AND WITH THE RULES OF PROCEDURE AND LAWS OF THE STATE OF FLORIDA. WITNESS THE HONORABLE RICHARD B. ORFINGER, CHIEF JUDGE OF THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FIFTH DISTRICT, AND THE SEAL OF THE SAID COURT AT DAYTONA BEACH, FLORIDA ON THIS DAY. DATE: February 08, 2013 FIFTH DCA CASE NO.: 5D 12-1235 CASE STYLE: OMNI HEALTHCARE, INC. v. DONALD MOSER COUNTY OF ORIGIN: Brevard TRIAL COURT CASE NO.: 05-2011-CA-45455-X I hereby certify that the foregoing is (a true copy of) the original Court mandate. PAMELA R. MASTERS, CLERK cc: Michael R.D'Lugo Frank J.Shaughnessy Wilbert R.Vancol Clerk Brevard 2