Apostolico v. Orlando Regional Health Care System, Inc., 5D03-1505.

Decision Date26 March 2004
Docket NumberNo. 5D03-1505.,5D03-1505.
Citation871 So.2d 283
PartiesAngela APOSTOLICO, etc., Appellant, v. ORLANDO REGIONAL HEALTH CARE SYSTEM, INC., etc., Appellee.
CourtFlorida District Court of Appeals

Gregorio A. Francis of Morgan, Colling & Gilbert, P.A., Orlando, for Appellant.

Bradley P. Blystone of Mateer & Harbert, P. A., Orlando, for Appellee.

ORFINGER, J.

Angela Apostolico, as personal representative of the Estate of Virgil Apostolico, appeals a final order dismissing with prejudice her wrongful death medical malpractice complaint for failure to comply with the presuit screening requirements of Florida's Medical Malpractice Act, sections 766.201-.212, Florida Statutes (2002).1 The dismissal was based on the trial court's ruling that Apostolico's medical expert was not qualified to render the opinion that accompanied her notice of intent to initiate medical malpractice litigation. On appeal, Apostolico argues that the trial court erred in dismissing her action because (1) her notice of intent to initiate litigation and corroborating affidavit sufficiently placed Orlando Regional Health Care System, Inc. ("ORMC") on notice of the allegations of the medical negligence action to allow a reasonable investigation of the matter; (2) the trial court employed the wrong standard in evaluating the presuit affidavit; and (3) there were other, less severe sanctions available for any alleged violations of the presuit requirements. For the reasons that follow, we reverse.

The complaint alleged that Virgil Apostolico, a 73-year-old man, went to ORMC's emergency department, complaining of chest pain. He was admitted to the telemetry unit of the hospital to rule out a myocardial infarction and was advised to have a venous access port, known as a Peripherally Inserted Central Catheter (PICC line), inserted to receive antibiotics he required due to a urinary tract infection. The hospital record for the procedure performed on November 8, 2000, noted the placement of a "4 French PICC line" by Cindy Adams, a registered nurse. A PICC line, such as the one utilized on Virgil, is inserted into a vein in a patient's arm and ends at the superior vena cava. Somehow, in Virgil's case, the PICC line looped in the right subclavian artery and did not fully extend to the intended position in the superior vena cava. The procedure was corrected the next day after an x-ray revealed the loop.2

Following the repositioning of the PICC line, Virgil was transferred emergently to the coronary care unit where he died several days later. The death certificate completed by Virgil's attending physician attributed Virgil's death to congestive heart failure following an acute myocardial infarction stemming from his prolonged history of ischemic cardiomyopathy.

Following Virgil's death, Apostolico served ORMC with a Notice of Intent to Initiate Medical Negligence Litigation in accordance with section 766.106, Florida Statutes. Along with the Notice of Intent, Apostolico provided the affidavit of Miriam Headley, a registered nurse, to corroborate the medical negligence action, as required by section 766.203(2), Florida Statutes (2002). In her affidavit, Nurse Headley opined that ORMC and its staff failed to meet the standard of care in the insertion and care of the PICC line by the registered nurse and that the nurse designated to insert and care for the PICC line failed to measure the length of the catheter prior to repositioning it in its proper place within the superior vena cava. Finally, Nurse Headley concluded that within a reasonable degree of medical probability, Virgil died as a result of the deviations from the prevailing standards of care by ORMC and its staff.

Shortly thereafter, ORMC notified Apostolico that it believed Nurse Headley lacked the requisite qualifications to render an opinion relating to the insertion and care of Virgil's PICC line and its relationship to his death, and, as such, Apostolico had not conducted a "reasonable investigation" to pursue this claim. ORMC inquired during presuit discovery whether Apostolico intended to have this matter reviewed by a cardiologist in order to determine whether there were reasonable grounds to pursue the claim in satisfaction of the investigation requirements of section 766.203(2). Apostolico responded, "Objection, work product."

At the conclusion of the ninety-day investigatory period, ORMC rejected Apostolico's claim. In doing so, ORMC presented a corroborating expert affidavit from a board certified cardiologist, Stephen P. Glasser, M.D. In his affidavit, Dr. Glasser opined:

Based upon my review of the records, it is my opinion that the care and treatment rendered to Virgil Apostolico by the nursing staff and employees of Orlando Regional Healthcare System, Inc. d/b/a Orlando Regional Medical Center met the applicable standard of care throughout his hospitalization. In particular, it is my opinion that the nursing staff and employees met the applicable standard of care in maintaining the PICC line, and nothing involving the positioning of the PICC line caused or contributed to the decedent's death.

Apostolico then filed an action for wrongful death medical malpractice against ORMC. ORMC served its motion to dismiss, arguing that Apostolico failed to conduct a "reasonable investigation" of the claim because Apostolico's nursing expert was not qualified to render an opinion as to proximate cause. ORMC argued that because Apostolico failed to correct this deficiency with a review by a cardiologist within the statute of limitations despite adequate notice as to the deficiency of its nursing affidavit, her action should be dismissed with prejudice.

After a hearing, the trial court concluded that Apostolico failed to comply with the reasonable investigation requirements of section 766.201-.212, Florida Statutes (2002). Specifically, the trial court found that a nurse does not possess the medical training or expertise to determine cause of death, and, therefore, concluded that Apostolico failed to conduct a reasonable presuit investigation since she did not satisfy the causation prong of section 766.203(2). As a result, the trial court dismissed Apostolico's cause of action with prejudice pursuant to section 766.206(2), concluding that the deficiency could not be rectified within the then expired statute of limitations. This appeal followed. We review a trial court's disposition of a motion to dismiss de novo. As a result, we do not defer to the trial court on matters of law. See Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001)

.

Florida courts are required to construe the Medical Malpractice Act "so as not to unduly restrict a Florida citizen's constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses."3 Kukral v. Mekras, 679 So.2d 278, 284 (Fla.1996); see Musculoskeletal Inst. Chartered v. Parham, 745 So.2d 946 (Fla.1999)

; Fort Walton Beach Med. Ctr., Inc. v. Dingler, 697 So.2d 575 (Fla. 1st DCA 1997). Presuit notice and screening requirements are "not intended to deny access to the courts on basis of technicalities." Dingler, 697 So.2d at 579 (citing Archer v. Maddux, 645 So.2d 544, 546 (Fla. 1st DCA 1994)). "Instead, the presuit notice and screening statute should be construed in a manner that favors access to courts." Id. (citing Patry v. Capps, 633 So.2d 9, 13 (Fla.1994)).

ORMC correctly observes that section 766.203(2), Florida Statutes (2002), provides that a claimant must establish both negligence and causation to support a claim for medical negligence. See also § 766.102(1), Fla. Stat. (2002) ("any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider") (emphasis added). Further, both elements of negligence and causation must be corroborated by a qualified expert. § 766.203(2), Fla. Stat. (2002). Specifically, section 766.203(2) provides:

Prior to issuing notification of intent to initiate medical malpractice litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:
(a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and
(b) Such negligence resulted in injury to the claimant.
Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant's submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(5), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.

§ 766.203(2), Fla. Stat. (2002).

ORMC appears to concede that Nurse Headley was qualified to render an opinion on the nursing staff's standard of care. However, ORMC argues that Nurse Headley was not qualified to render an expert opinion as to causation. ORMC argues that while physicians are specifically recognized to have the capability to diagnose and treat any mental or physical human ailments, nurses are limited to observing, assessing and evaluating physical or mental conditions, and then following the treatment plan authorized by physicians. ORMC concludes that because nurses cannot diagnose patients or prescribe treatment plans for their patients, they do not have the ability to determine a patient's cause of death, especially in a patient such as Virgil, who suffered from several serious cardiac and neurological conditions.

While section 766.203(2) directs the claimant to conduct an investigation to ascertain that there are reasonable grounds to believe that the defendant was negligent, it does not require the claimant to establish the defendant's negligence or prove its case during the presuit screening...

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