Bell v. Indian River Mem. Hosp.

• Decision Date: 07 February 2001
• Docket Number: No. 4D00-1244.,4D00-1244.
• Citation: 778 So.2d 1030
• Parties: Christopher BELL and Shams Bell, Appellants, v. INDIAN RIVER MEMORIAL HOSPITAL, Appellee.
• Court: Florida District Court of Appeals

778 So.2d 1030

Christopher BELL and Shams Bell, Appellants, v. INDIAN RIVER MEMORIAL HOSPITAL, Appellee.

No. 4D00-1244.

District Court of Appeal of Florida, Fourth District.

February 7, 2001.

Allen R. Seaman of Stafford & Seaman, P.A., Lake Worth, for appellants.

Jennifer L. Phillips and Janet W. Adams of Hill, Reis, Adams, Hall & Schieffelin, P.A., Orlando, for appellee.

LABARGA, JORGE, Associate Judge.

Christopher Bell and Shams Bell appeal the trial court's order dismissing their complaint with prejudice because their claims were barred by the statute of limitations. We reverse and remand.

On July 10, 1995, appellant, Shams Bell, entered Indian River Memorial Hospital (Hospital) where she gave birth to a premature stillborn baby. Following the delivery, the deceased child was taken to the pathology department of the hospital for the purpose of performing an autopsy. According to appellant, she made repeated requests to hospital personnel, prior to and after the autopsy, that the child's remains be returned to her after the autopsy for funeral services and a proper burial. When the child was not returned to her, the appellant inquired for several days about the child. Ultimately, appellant learned that subsequent to the performance of the autopsy, the child's remains were disposed of in a manner unknown to the Hospital.

On October 7, 1999, appellants filed their First Amended Complaint alleging negligent mishandling of a dead body and outrageous infliction of emotional distress by reckless misconduct.¹ Appellants alleged that they had a right under Florida law to request and receive their deceased child's remains in order to arrange for burial and verbally made their intentions known that they wanted the remains of their child returned to them following the autopsy. The first amended complaint further alleged that the hospital intentionally, recklessly, and/or with willful and wanton disregard, disposed of the child's remains in total disregard for the parents' wishes and in contravention of section 470.0255, causing emotional pain from being denied the right to perform a funeral and burial.

The hospital moved to dismiss the amended complaint on various grounds, including that appellants' allegations constituted a claim for medical malpractice because the incident arose out of the rendering of, or the failure to render, medical care or services. The hospital argued that "[o]ne cannot separate the disposal of fetal remains from the handling of the fetus during the prior delivery and autopsy. The alleged improper disposal which occurred in this case was only as a result of previous and inextricably intertwined medical care and diagnosis which was provided both to Shams Bell and her fetus." Thus, the Hospital maintained that appellants' claims fell squarely within the definition of a claim for medical malpractice as defined by section 95.11(4)(b), Florida Statutes.

The trial court granted the Hospital's motion to dismiss with prejudice. In so ruling, the trial court offered the following reasoning:

In my view Defendant's performance of an autopsy and subsequent handling of the fetus clearly are actions which arise in conjunction with rendering medical diagnosis and services by a healthcare provider. Since Plaintiffs admit they have not complied with the presuit requirements of Section 766.101, Fla. Stat., and have filed this action beyond the limitations of Section 95.11(4)(b), Fla. Stat., this action must be dismissed with prejudice.

A motion to dismiss tests whether the plaintiff has stated a cause of action. See Rohatynsky v. Kalogiannis, 763 So.2d 1270, 1272 (Fla. 4th DCA 2000)

. Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal by the de novo standard of review. See Sarkis v. Pafford Oil Co., 697 So.2d 524, 526 (Fla. 1st DCA 1997); see also Gortz v. Lytal, Reiter, Clark, Sharpe, Roca, Fountain & Williams, 769 So.2d 484 (Fla. 4th DCA 2000). When determining the merits of a motion to dismiss, the trial court's consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party. See Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999),

cause dismissed, 773 So.2d 55 (Fla.2000); Burtman v. Technical Chems. & Prods., Inc., 724 So.2d 672, 673 (Fla. 4th DCA 1999).

Appellants are the parents of the deceased child whose remains were lost or destroyed. The appellants did not allege in their complaint that the hospital was negligent in the delivery of their child, in the performance of the autopsy on the deceased child, or that the hospital or physicians rendered improper medical diagnosis, treatment or care to the mother or the deceased child.²

Section 95.11(4)(b), Florida Statutes (1995), provides that an "`action for medical malpractice' is defined 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." Similarly, section 766.106(1)(a), Florida Statutes (1995), which pertains to the presuit notice requirements for medical malpractice claims, defines a claim for medical malpractice as "a claim arising out of the rendering of, or the failure to render, medical care or service."

In Silva v. Southwest Florida Blood Bank, Inc., 601 So.2d 1184 (Fla.1992), the Florida Supreme Court considered the issue of when an action may be deemed to arise out of medical diagnosis, treatment or care and whether such diagnosis and treatment was rendered by a healthcare provider so as to fall within the scope of section 96.11(4)(b). In resolving this issue, the court reaffirmed that in construing a statute, words must be given their plain and ordinary meaning. See id. at 1186. The court, in considering the applicability of section 95.11(4)(b), explained:

First, there is no ambiguity to clarify in the words "diagnosis," "treatment," or "care," and we find that these words should be accorded their plain and unambiguous meaning. In ordinary, common parlance, the average person would understand "diagnosis, treatment, or care" to mean ascertaining a patient's medical condition through examination and testing, prescribing and administering a course of action to effect a cure, and meeting the patient's daily needs during the illness. This parallels the dictionary definitions of those terms. According to Webster's Third International Dictionary (1981), "diagnosis" means "the art or act of identifying a disease from its signs and symptoms." Id. at 622. "Treatment" means "the action or manner of treating a patient medically or surgically." Id. at 2435. "Care" means "provide for or attend to needs or perform necessary personal services (as for a patient or child)." Id. at 338. Likewise, in medical terms, "diagnosis" means "[t]he determination of the nature of a disease." Stedman's Medical Dictionary 428 (25th ed.1990). "Treatment" means "[m]edical or surgical management of a patient." Id. at 1626. And "care" means "the application of knowledge to the benefit of ... [an] individual." Id. at 249.

Id. at 1187.

Silva involved a claim against a blood bank arising out of a tainted blood transfusion which resulted in an individual being infected with HIV. The court, in holding that the medical malpractice statute did not apply, concluded that the blood bank rendered no diagnosis, treatment or care to the injured party where neither the blood bank nor its employees had any knowledge or information about the recipients' medical conditions. See also J.B. v. Sacred...