Alterra Healthcare Corp. v. Campbell

• Decision Date: 09 November 2011
• Docket Number: No. 2D10–4444.,2D10–4444.
• Citation: 78 So.3d 595
• Parties: ALTERRA HEALTHCARE CORPORATION, n/k/a Brookdale Senior Living Communities, Inc.; Eric Flock; and Fancie Cales, Appellants, v. Michelle CAMPBELL, Appellee.
• Court: Florida District Court of Appeals

78 So.3d 595

ALTERRA HEALTHCARE CORPORATION, n/k/a Brookdale Senior Living Communities, Inc.; Eric Flock; and Fancie Cales, Appellants,

v.Michelle CAMPBELL, Appellee.

No. 2D10–4444.

District Court of Appeal of Florida, Second District.

Nov. 9, 2011.

J. Robert McCormack of Lewis Brisbois Bisgaard & Smith, LLP, Tampa, for Appellants.

Timothy W. Weber and Joseph P. Kenny of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellee.

MORRIS, Judge.

Alterra Healthcare Corporation, n/k/a Brookdale Senior Living Communities, Inc.; Eric Flock; and Fancie Cales (collectively Alterra) appeal a final judgment entered in favor of Michelle Campbell in her malicious prosecution action. We affirm and write only to address the issues of probable cause and legal cause as elements of a malicious prosecution action.

I. FACTS

In March of 2002, Campbell began working as a floor nurse at Alterra's Clare Bridge assisted living facility. It was there that she met Cales, the health care coordinator and Campbell's direct supervisor. The working relationship between Cales and Campbell was initially pleasant but soon became strained, and Campbell ultimately resigned due to workplace conflict with Cales. Campbell thereafter became employed with Maxim Healthcare, a temporary nursing agency.

In May 2004, Flock, who was residence director of Alterra's Sterling House facility, contacted Maxim to request a temporary nurse for the 3:00 p.m. to 11:00 p.m. shift. Maxim assigned Campbell to work the shift. Upon Campbell's arrival, Cales, who was then a nurse supervisor at Sterling House, approached Flock and asked him to send Campbell home. Cales told Flock that she had worked with Campbell at a prior facility and that she was “bad news.” Cales also told Flock that Campbell had been suspected of stealing narcotics from that facility. Flock responded that Campbell would work the shift unless Cales intended to fill in.

At the start of the shift, Campbell and off-going nurse, Annette Prince, conducted a med count of the medications prescribed for Sterling House patients. Most of the residents' medications were prepackaged in blister packs for ease of dispensation and control. The pharmacists would place each tablet into a blister on a card containing the residents' name and prescription information; the pills would be secured in place with a foil seal on the back of the card. Tablets were dispensed from the card by pushing them through the foil seal. The individual pill compartments were numbered on the blister packs so that the nurse or medical technician (a nonnurse authorized to handle medications) could determine at a glance the number of remaining pills on the card by looking at the printed number next to the last unused pill. The blister packs were stored in a locked, removable box that itself was stored inside a locked medication cart. The medication cart was kept in the nursing station. The door to the nursing station would automatically lock whenever a nurse or medical technician left the room. Sterling House maintained three sets of keys to the nursing station, medicine cart, and medication lock box. One set was carried by the nurse or medical technician on duty, another set was kept in Flock's office, and a third set was maintained by the pharmacist.

To begin the med count, Prince read aloud from a log book the number of pills that each card should contain while Campbell compared the printed number on the blister packs to the number read by Prince. Neither Campbell nor Prince looked at the pills or made any physical examination of the blister packs for evidence of tampering. The parties stipulated that simply counting the medications and not checking the blister packs for tampering was the written procedure which was routinely followed at Sterling House. After the med count was completed, Prince signed the log book, gave Campbell the keys, and left. Shortly thereafter, Campbell signed the log book.

Sometime between 4:30 and 5:00 p.m., Cales asked Campbell for the keys to the nursing station to access some charts. She returned the keys to Campbell about ten minutes later. Campbell also gave her keys to another employee several times during the course of her shift so that the employee could access necessary items from the nursing station and so that the employee could lock the facility. Flock also had his own set of keys to the nurses' station, medication cart, and lock box, and he was in the building until 6:00 p.m.

At the end of her shift, Campbell performed the count procedure again with Maria Collazo, the incoming medical technician. Campbell read aloud from the log book, and Collazo matched the numbers. There is conflicting information in the record about what happened next. According to a Florida Department of Health (DOH) investigator,¹ Collazo reported that she noticed that some of the blister packs appeared to have been opened and then taped back together. The investigator further relayed that Collazo refused to sign the log book but that Campbell signed it, turned her keys over to Collazo, and left.

Campbell, on the other hand, testified that she and Collazo discovered a medication error resulting from one patient's receiving the wrong dosage of medication. Campbell testified she asked Collazo to call a supervisor to discuss incident reporting procedures; Collazo called Prince. Campbell then left a message for Cales on her voicemail. Campbell testified that after starting to complete an incident report, she and Collazo finished the med count “with no further problems.” Campbell then turned her keys over to Collazo, signed the log book, and left. Campbell testified she believed Collazo signed the log book at that time as well, though she acknowledged she did not actually see her do so. Campbell testified she did not learn that any drugs were missing until Maxim notified her two days later.

Prince told the DOH investigator that after Campbell left the facility, Collazo called Prince to inform her that there was a problem with some of the blister packs. Prince arrived at the facility around 11:20 p.m. and observed that two of the blister packs had tape on them. Cales called Flock that same evening to advise him of the problem with the med count. Flock then called Collazo and instructed her to place the blister packs back into the medicine cart so he could inspect them himself the next morning.

The next day, Flock brought the blister packs to the pharmacist, John Gattoline, and told him that the blister packs appeared to be “falling apart.” After studying the blister packs, Gattoline informed Flock that someone had tampered with the blister packs and replaced several of the oxycodone and hydrocodone pills with potassium and cardizem pills. Flock reported this to his supervisor Pam Cutsuries who then contacted their legal department. According to Cutsuries, Sterling House experienced an average of five drug thefts a month. Upon reporting the matter to their legal department, Cutsuries was told to contact law enforcement and to not let Campbell back into the facility. Cutsuries then instructed Flock to call the police and to instruct Maxim House that Campbell would not be permitted to work at Sterling House during the pendency of the investigation.

Flock did not talk with Campbell, request that any employees submit to drug screening, or otherwise conduct any investigation. Flock contacted the Hillsborough County Sheriff's Office on May 7, 2004, to report the incident.

Deputy Stempowski met with Flock and Cales and was told that the theft was discovered at the end of Campbell's shift. Cales advised that the nurses inspected the blister packs for tampering before signing the log book and that by doing so, the nurse was representing that there was nothing suspicious about the medications. Cales also advised that the tampering was obvious and would have been discovered during the medication count if it occurred before Campbell's shift. Flock and Cales further advised that Campbell was the only person with access to the medications during her shift. Flock informed Deputy Stempowski that Cales told him at the beginning of Campbell's shift that she was “bad news” and was suspected of stealing narcotics from her prior facility. ² Cales added that Campbell was “let go for unknown reasons” from the prior facility. Cales also told Deputy Stempowski, in Flock's presence, that Sterling House had never had missing drugs before Campbell worked in the facility. Neither Flock nor Cales told Deputy Stempowski that they both were in the building during Campbell's shift or that another employee was also in the building.

Deputy Stempowski then interviewed Prince who said that the blister packs were in order when she counted them at the end of her shift. Prince said that the blister packs did not have the tape on them and that she did not notice that different pills had been inserted. Although Prince told Deputy Stempowski that the blister packs did not look the same as they had when she ended her shift, she also later admitted to the DOH investigator that the tape on the blister packs was not obvious, could have been on the blister packs for days, and that the pills did not look as though they had been replaced. She acknowledged that “it was possible that the blister packs had been tampered with prior to Campbell's shift.”

Based on the information provided to her, Deputy Stempowski documented that the theft occurred during Campbell's shift and that the theft was therefore attributed to Campbell.

Two days later, Campbell's supervisor at Maxim informed her that Sterling House had discovered that hydrocodone and oxycodone pills had been switched out for other pills in some of the blister packs. In accordance with standard procedure, Campbell voluntarily submitted to a urine drug screen, which was negative.

Campbell was ultimately arrested and charged with repackaging an adulterated or misbranded drug, trafficking in oxycodone,...