Baptist Med. Ctr. Of The Beaches Inc v. Rhodin

• Decision Date: 16 July 2010
• Docket Number: No. 1D10-859.,1D10-859.
• Parties: BAPTIST MEDICAL CENTER OF the BEACHES, INC., Petitioner,v.Arthur Robert RHODIN and Janice Rhodin, his wife, and David Rhodin and Robert Rhodin, his unmarried dependents, Respondents.
• Court: Florida District Court of Appeals

40 So.3d 112

BAPTIST MEDICAL CENTER OF the BEACHES, INC., Petitioner,v.Arthur Robert RHODIN and Janice Rhodin, his wife, and David Rhodin and Robert Rhodin, his unmarried dependents, Respondents.

No. 1D10-859.

District Court of Appeal of Florida First District.

July 16, 2010.

Earl E. Googe, Jr., and Andrew Henry Sauer, Jacksonville, for Petitioner.

Robert F. Spohrer and Chad S. Roberts, of Spohrer Dodd, Jacksonville; Bryan S. Gowdy, of Mills Creed & Gowdy, P.A., Jacksonville, for Respondents.

KAHN, J.

In respondents' medical negligence suit against Baptist Medical Center of the Beaches, Inc. (Baptist), petitioner moved to dismiss the complaint for failure to comply with the presuit requirements of chapter 766, Florida Statutes (2009). The trial court denied the motion. Petitioner seeks certiorari review of the trial court's order on the ground that respondents' notice of intent to initiate litigation is legally insufficient. Concluding that petitioner has not met its burden to demonstrate entitlement to extraordinary relief, we deny the petition for writ of certiorari.

I. FACTUAL AND PROCEDURAL BACKGROUND

In pertinent part, the complaint alleged that beginning April 17, 2008, respondent Arthur Rhodin was hospitalized at Baptist. Through April 19, 2008, he demonstrated severe and progressively worsening pain in his neck, back, and right side of the chest. The Rhodins alleged that petitioner, through its employees and agents, deviated from the appropriate standards of reasonable medical care, causing injury to Mr. Rhodin 1) by failing to appreciate Mr. Rhodin's worsening clinical condition of extreme pain and the need for diagnostic determination of the pain's source; 2) by failing to communicate in a timely, appropriate manner with the attending physicians that Mr. Rhodin's clinical condition was worsening, he was not responding to strong pain medication, and he needed diagnostic intervention; 3) by failing to adequately train its nursing staff in the above-described skills; 4) by failing to maintain adequate policies and procedures that address the above-described skills; and 5) by negligently training and credentialing the nursing staff member who primarily cared for Mr. Rhodin on the evening of April 19, 2009. Simply stated, the complaint alleged negligent nursing care that caused injury to Mr. Rhodin.

As required by section 766.203(2), Florida Statutes (2009), respondents filed the affidavit of Dr. Michelle M. Byrne, a Ph.D. and registered nurse, in compliance with the statutory presuit investigation mandate. After reviewing Mr. Rhodin's medical records and relying on her own education, training, and experience, Dr. Byrne opined reasonable grounds exist to initiate a claim for medical malpractice on the part of petitioner's nurses, employees, or agents. Specifically, Dr. Byrne found that petitioner, including its nursing staff, deviated from acceptable and appropriate standards of care 1) by failing to accurately, timely assess Mr. Rhodin's worsening clinical condition and 2) by failing to communicate in an appropriate, timely manner with the attending physicians that Mr. Rhodin's clinical condition was worsening. Byrne concluded that these deviations from appropriate care caused or substantially contributed to Mr. Rhodin's permanent injury. Baptist moved to dismiss the complaint based on respondents' failure to satisfy the presuit notice requirements of chapter 766. Specifically, Baptist objected to the affidavit submitted by Dr. Byrne. The trial court denied the motion, and Baptist asks us to quash that denial.

II. ANALYSIS

A. Basis for Certiorari Jurisdiction

As always, we must make a threshold determination of whether to exercise certiorari jurisdiction. A writ of certiorari, which is an extraordinary common-law remedy subject to “strict prerequisites,” is not available as a matter of right and should be used only in very limited circumstances. See Abbey v. Patrick, 16 So.3d 1051, 1054 (Fla. 1st DCA 2009). Certiorari review of a nonfinal order denying a motion to dismiss is generally unavailable. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). Courts do afford such review, however, in the rare and “narrow context” where a medical defendant presents facts demonstrating the plaintiff has not met the presuit notice requirements of chapter 766. See Miami Physical Therapy Assocs. v. Savage, 632 So.2d 114, 116 (Fla. 3d DCA 1994); Oken v. Williams, 23 So.3d 140, 145 (Fla. 1st DCA 2009). The appropriate scope of certiorari review of an order denying a motion to dismiss in the context of chapter 766 presuit compliance actions was described in St. Mary's Hospital v. Bell, 785 So.2d 1261, 1262 (Fla. 4th DCA 2001) (stating “certiorari is available to review whether a trial judge followed chapter 766 and whether a plaintiff complied with presuit notice and investigation requirements; certiorari is not so broad as to encompass review of the evidence regarding the sufficiency of counsel's pre-suit investigation”); see Simeon, Inc. v. Cox, 671 So.2d 158, 160 (Fla.1996). Under a jurisdictional analysis, certiorari review is proper if the trial court's order fails to satisfy the mandatory presuit procedures in chapter 766, which are a condition precedent to a medical malpractice suit. See Kukral v. Mekras, 679 So.2d 278, 283 (Fla.1996); Oken, 23 So.3d at 144; Lakeland Reg'l Med. Ctr., Inc. v. Allen, 944 So.2d 541, 543 (Fla. 2d DCA 2006); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). Baptist asserts that Dr. Byrne's affidavit does not meet the presuit requirements of chapter 766. If this is so, then allowing respondents to fully litigate the suit would cause petitioner material harm that could not be remedied on plenary appeal. See Goldfarb v. Urciuoli, 858 So.2d 397, 398 (Fla. 1st DCA 2003). Accordingly, we have jurisdiction to consider the merits of Baptist's claims. If the order denying petitioner's motion to dismiss is materially wrong, we must quash it; otherwise, we have no basis to exercise extraordinary jurisdiction.

B. Departure From Essential Requirements of Law

Having found a tentative basis for certiorari jurisdiction, we must consider next whether the nonfinal order passes the standard of review on its merits, i.e., whether the trial court departed from the essential requirements of law. The Florida Legislature enacted presuit investigation requirements “to provide a plan for prompt resolution of medical negligence claims.” § 766.201(2), Fla. Stat. (2009); see Cohen v. Dauphinee, 739 So.2d 68, 71 (Fla.1999). Medical malpractice plaintiffs do not have the same common-law rights as do victims of other types of negligence. The presuit requirements, as well as other restrictions, derived from findings made by the Florida Legislature in 1988. See Ch. 88-1, § 48, Laws of Fla. (codified as section 766.201, Florida Statutes (2009)). According to the Legislature, the tightened rules governing recovery in medical malpractice situations are justified because, in 1988, the Legislature determined that a dramatic increase in medical malpractice liability insurance premiums had resulted “in increased medical care costs for most patients and functional unavailability of malpractice insurance for some physicians.” § 766.201(1)(a), Fla. Stat. (2009). Accordingly, chapter 766 requires a potential plaintiff to perform an investigation of the merits of the claim and prepare a notice of intent to litigate before filing suit. Before issuing notice, however, a claimant must “ascertain that there are reasonable grounds to believe that ... [a]ny named defendant in the litigation was negligent in the care or treatment of the claimant; and ... [s]uch negligence resulted in injury to the claimant.” § 766.203(2), Fla. Stat. (2009); see Archer v. Maddux, 645 So.2d 544, 546 (Fla. 1st DCA 1994) (“The statute calls for medical corroboration not only of negligence but also of injury in consequence.”). The dispute here focuses upon whether respondents satisfied the requirements of section 766.203(2):

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(6), 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.

The ultimate question of whether a claimant has satisfied the threshold requirements of the presuit notice investigation, warranting denial of the defendant's motion to dismiss, presents an issue of law. See

Apostolico v. Orlando Reg'l Health Care Sys., Inc., 871 So.2d 283, 286 (Fla. 5th DCA 2004).

Baptist contends the trial court departed from the essential requirements of law in three ways, all of which relate to Dr. Byrne's qualifications under the statutory presuit investigation standards. First, says Baptist, the court permitted an operating room nurse to offer a presuit expert opinion on the medical cause of Mr. Rhodin's central nervous system injury and paralysis. Second, the court refused to strike the opinion of a nurse said by Baptist to have knowingly failed to disclose that at least one of her prior opinions was disqualified. Third, the court allowed the nursing opinion of someone, again, as stated by Baptist, who has not been duly and regularly engaged in the practice of nursing as required by law. Resolution of these intertwined issues requires us to examine various provisions of chapter 766 to determine, in this case, whether respondents' affiant qualifies to give an expert opinion.

1. Byrne's Opinion on Causation

At the hearing on the motion to dismiss, the Rhodins' counsel, by reference to the allegations in this case, described the issue as follows: whether a board-certified peri-operative nurse may, for presuit notice purposes, opine on causation issues regarding another nurse's...