Community Blood Centers of South Florida, Inc. v. Damiano

• Decision Date: 30 July 1997
• Docket Number: No. 96-3642,96-3642
• Citation: 697 So.2d 948
• Court: Florida District Court of Appeals
• Parties: 22 Fla. L. Weekly D1858 COMMUNITY BLOOD CENTERS OF SOUTH FLORIDA, INC., f/k/a Broward Community Blood Center, Inc., Petitioner, v. Francine DAMIANO, individually and derivatively, Alfred Damiano, her husband, individually and derivatively, Anthony Damiano, Michelle Damiano and Christine Damiano, minors, individually, by and through their parents and next friend, Respondents.

Page 948

697 So.2d 948

22 Fla. L. Weekly D1858

COMMUNITY BLOOD CENTERS OF SOUTH FLORIDA, INC., f/k/a Broward Community Blood Center, Inc., Petitioner, v. Francine DAMIANO, individually and derivatively, Alfred Damiano, her husband, individually and derivatively, Anthony Damiano, Michelle Damiano and Christine Damiano, minors, individually, by and through their parents and next friend, Respondents.

No. 96-3642.

District Court of Appeal of Florida Fourth District.

July 30, 1997.

Rehearing Denied Sept. 16, 1997.

PER CURIAM

Petitioner, Community Blood Centers of South Florida, Inc. (the blood bank), challenges an order denying its motion to dismiss. We find that the blood bank was not a health care provider for the purpose of requiring plaintiffs to comply with the medical malpractice presuit requirements. Thus, we do not find that the trial court departed from the essential requirements of law in denying the blood bank's motion to dismiss. Accordingly, we deny the petition for writ of certiorari.

The background facts are as follows. On June 15, 1986, Francine Damiano received a blood transfusion after giving birth to twins. In 1990, Francine was diagnosed with AIDS. Plaintiffs' complaint, filed on June 26, 1992, named both Francine's obstetrician, Grover McDaniel, M.D. (Dr. McDaniel), and the blood bank as defendants. The complaint alleged that the blood, which was supplied by the blood bank, was contaminated with the HIV/AIDS virus, causing Francine to become infected.

Plaintiffs alleged that Dr. McDaniel was negligent in ordering repeated blood transfusions even though Francine was not in a life-threatening situation. Plaintiffs also alleged that the blood bank had notice within months after the transfusion that recipients like Francine may have been exposed to the AIDS virus, yet this information was never communicated to plaintiffs. Unaware she had been exposed to AIDS, Francine infected and transmitted the AIDS virus to her husband, Alfred Damiano. ¹

Prior to instituting suit, plaintiffs served a notice of intent to sue, including a corroborating expert affidavit, on Dr. McDaniel. No similar notice of intent was served on the blood bank. ²

It was not until June 18, 1996, over four years after plaintiffs had filed their lawsuit, that the blood bank filed a motion to dismiss the complaint based on plaintiffs' noncompliance with section 766.106, the medical malpractice presuit requirements. The trial court denied the motion to dismiss.

To support the denial of the motion to dismiss, plaintiffs rely primarily on Silva v. Southwest Florida Blood Bank, Inc., 601 So.2d 1184 (Fla.1992), which held that an action against a blood bank as a supplier of blood was not a medical malpractice action for statute of limitation purposes. In Silva, our supreme court examined whether, under subsection 95.11(4)(b), Florida Statutes (1991): (1) the action arose out of "medical ... diagnosis, treatment, or care," and (2) whether such diagnosis, treatment, or care was rendered by a "provider of health care." Subsection 95.11(4)(b), provides in pertinent part:

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. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care.

(Emphasis supplied).

With respect to the first prong, our supreme court found no ambiguity in the terms "diagnosis, treatment, or care," defining these terms

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.

Silva, 601 So.2d at 1187.

Our supreme court determined, based on the allegations in the complaint, that the blood bank sold the blood product to the treating hospital, which in turn sold it to the plaintiffs:

The blood bank and its employees never saw the recipients of the blood product or had any contact whatsoever. Neither the blood bank nor any of its employees had any knowledge or information about the recipients' medical conditions. Southwest played no role in determining the nature of the plaintiff patients' illnesses, did not treat those patients, and did not attend to the personal needs of those patients.

Id.

As to those cases where a blood bank was sued for having provided diagnosis, treatment, or care, our supreme court then addressed whether the blood bank met the second requirement of subsection 95.11(4)(b): that the diagnosis, treatment, or care be rendered by a "provider of health care." It rejected utilizing the definition provided in subsection 768.50(2)(b), ³ which addressed collateral sources of indemnity and which was repealed in 1986:

We can find no indication that the legislature intended for blood banks to be considered "providers of health care" for purposes of the medical malpractice statute of limitations. Nor do we find it permissible generally to construe that term broadly. In the absence of clear legislative intent to the contrary, we are not at liberty to construe that term [providers of health care] so as to deprive plaintiffs of their causes of action.

Id. at 1189 (emphasis supplied) (citation omitted).

The blood bank argues that although the medical malpractice statute of limitations does not apply to actions against blood banks, plaintiffs nevertheless were bound to comply with the presuit requirements of chapter 766, including subsection 766.106(2). This subsection requires notice to the defendant in a medical malpractice action after completion of presuit screening, "prior to filing a claim for medical malpractice."

The blood bank insists that based on the supreme court's reasoning in Weinstock v. Groth, 629 So.2d 835 (Fla.1993), the blood bank should be considered a health care provider entitled to presuit notice and screening. In Weinstock, our supreme court held that licensed clinical psychologists are not health care providers entitled to presuit notice and screening under the Comprehensive Medical Malpractice Reform Act of 1985 because they are not so defined under any of the chapter 766 definitions.

To decide this question, our supreme court considered the definition of "health care providers." Although subsection 766.106(1)(a) defines a claim for medical malpractice, section 766.106 does not define a "health care provider." In fact, in NME Properties, Inc. v. McCullough, 590 So.2d 439, 440 n. 1 (Fla. 2d DCA 1991), the court lamented the difficulty of interpreting chapter 766 because of the lack of comprehensive definitions.

In Weinstock, our supreme court determined that psychologists were not included in any of the chapter 766 definitions of "health care provider." See § 766.102; § 768.50(2), Fla.Stat. (1985); ⁴ § 766.101(1)(b); ⁵ § 766.105(1)(b). ⁶ Our supreme court therefore held that the exclusion of psychologists from the various definitions of this term indicated a legislative intent that psychologists not be classified as health care providers. 629 So.2d at 837. Here, defendant points out that blood banks are defined as a health care provider under subsection 768.502(b). While that is true, blood banks are listed nowhere else within the statutory definition of chapter 766; e.g., subsections 766.101(1)(b) and 766.105(1)(b).

To reach the result in Weinstock, our supreme court reasoned that a narrow construction of the presuit notice requirements is in accord with the rule that restrictions on access to the courts must be strictly construed in a manner that favors access. Id. at 838; Patino v. Einhorn, 670 So.2d 1179 (Fla. 3d DCA 1996). Thus, the court in Weinstock intended to limit the classifications of defendants entitled to presuit notice to minimize its effect on the constitutionally-protected right to access to the courts. See Art. I, § 21, Fla. Const.

Construing the Medical Malpractice Reform Act as requiring that presuit notice be given to a blood bank, as a condition precedent to maintaining an action arising from supplying contaminated blood, would be to engraft a requirement of presuit notice through section 766.106, with its extensive provisions for informal discovery and a 90-day investigatory procedure for both plaintiffs and blood banks, even though the action does not involve treatment and care by the blood bank.

The presuit notice can be sent only after plaintiff complies with the "reasonable investigation requirements of ss. 766.201-766.212." § 766.206(2); see also § 766.106(2). Failure to comply with the reasonable investigation requirements is grounds for dismissal of the complaint. § 766.206(2). However, many of these requirements would be inapplicable to a blood bank being sued as a supplier of blood. For example, subsection 766.203(2)(a) provides that a plaintiff "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 and treatment of the claimant...