Doe v. Baptist Primary Care, Inc.
| Citation | 177 So.3d 669 |
| Decision Date | 12 October 2015 |
| Docket Number | No. 1D15–696.,1D15–696. |
| Parties | Jane DOE, Appellant, v. BAPTIST PRIMARY CARE, INC., Appellee. |
| Court | Court of Appeal of Florida (US) |
Theodore S. Pina, Jr., of Nichols & Pina, LLLP, Jacksonville, for Appellant.
Franklin Duke Regan and William Tupper Stone, Jr., of Saalfield, Shad, Stokes, Inclan, Stoudemire & Stone, P.A., Jacksonville, for Appellee.
Appellant, Jane Doe, appeals the two final orders entered by the trial court which, taken together, result in the dismissal with prejudice of counts I and II of her amended complaint. Upon careful consideration of appellant's arguments on appeal, as well as the allegations raised within the four corners of her complaint, we affirm the dismissal of count I, but reverse the dismissal of count II.
According to the Amended Complaint, in June 2006 appellant was diagnosed with "Human Immune–Deficiency Virus" ("HIV"). She was seen by a physician employed by appellee, Baptist Primary Care, Inc., who confirmed the diagnosis and began treatment. Appellant chose to keep the diagnosis private "in light of the social stigma which is associated with HIV." In October 2007 appellant's husband began a new job through which he and appellant obtained coverage under a group health insurance plan. As a consequence, on October 15, 2007, appellant contacted appellee to request a referral to another physician and provided appellee with her new insurance information. Appellee's employee, Melissa Cotton, was assigned the task of making the referral. Cotton was specifically instructed to make this referral as soon as possible in light of appellant's diagnosis, and was provided the new insurance information containing the name of the husband's employer. Sometime after October 15, 2007, however, Cotton disclosed to her boyfriend that appellant was HIV positive. Coincidentally, the boyfriend worked for the same employer as did the husband. Later, Cotton also disclosed appellant's medical condition to other individuals employed by the company. Then, in approximately January 2009, appellant's husband was asked by his employer to drop appellant from the group health insurance plan, but he refused. Several days later, he was terminated from his employment. In approximately April 2009, Cotton's boyfriend contacted appellant's husband and disclosed to him that appellant was HIV positive.
Count I of the Amended Complaint is entitled "Violation of Privacy by Disclosure of Private Information." It alleges that Melissa Cotton, as appellee's employee, had access to confidential and private health information concerning appellant's status as being HIV positive. It further alleges that Cotton "knew, or reasonably should have known, that [appellant] expected this medical information to be kept confidential and private, absent her specific written consent," and at all material times, appellee, acting through its employee, Melissa Cotton, "had a duty pursuant to Baptist Primary Care Policies and Procedures and Florida statutory and common law to refrain from disclosing [appellant's] confidential, private, [h]ealth information without her specific, written consent." Finally, it alleges appellee breached that duty by disclosing the "confidential, private" information to members of the public "without [appellant's] specific, written, consent." The Amended Complaint additionally alleges the information was of no concern to those to whom it was disclosed "or to the public in general," was highly offensive to appellant, and, "[a]s a direct and proximate result of the disclosure, [appellant] suffered damages including mental anguish and emotional distress, embarrassment, and humiliation," which losses are "permanent or continuing[.]"
Count II is entitled "Negligent Training and Supervision," and alleges the following:
In response to appellee's motion to dismiss the Amended Complaint, the trial court entered a non-final order in which it dismissed count I, finding appellant had failed to state a cause of action under Florida's common law right to privacy. Nonetheless, it dismissed count I without prejudice and granted appellant twenty days within which to amend the count. The trial court dismissed count II with prejudice, however, finding the allegations sounded in medical negligence and appellant failed to comply with the statute of limitations in section 95.11(4)(b), Florida Statutes, and the pre-suit notice requirements in chapter 766, Florida Statutes. Following entry of the order of dismissal, appellant allowed the twenty-day window to amend count I to lapse and, instead, filed an appeal in this Court. Because the appeal was premature, we exercised our discretion accorded by Florida Rule of Appellate Procedure 9.110(l ), and relinquished jurisdiction to the trial court in order "to obtain a final appealable order from the lower tribunal." During the period of relinquished jurisdiction, appellee filed a second motion again asking the court to dismiss count I, but adding a second ground urging the trial court to dismiss the count as a sanction for appellant's failure to amend it within the twenty days granted by the court. In response, appellant filed a motion to strike appellee's motion to dismiss, stating: "It is the order granting the previous Motion which needs to be amended." On March 24, 2015, the trial court acquiesced in appellee's request and entered its final Order Dismissing with Prejudice Count I of Plaintiff's Amended Complaint as a sanction, finding appellant "knowingly failed to file an amendment to Count I of the Amended Complaint within the time the court allotted," and "offered no explanation on the record of this matter." In light of these findings, the trial court concluded "the record warrants dismissal with prejudice of Count I of the Amended Complaint, there being no sanction less severe which appears to be a viable alternative." Appellant filed the foregoing order in this Court, jurisdiction was at last properly invoked, and the parties filed their respective briefs. We now turn to resolving the two points raised on appeal by appellant.
Despite the trial court's explicit order dismissing count I with prejudice as a sanction for appellant's failure to amend the count, under Point I of her initial brief, appellant completely ignores the ruling and, instead, addresses the merits of the trial court's initial order dismissing the count without prejudice for failing to state a cause of action for which relief could be granted. Although, in its answer brief, appellee argues at some length its position that the trial court did not abuse its discretion in dismissing the count as a sanction, appellant chose not to file a reply brief addressing that argument.
Our exclusive duty as a court of appeal is "to determine whether the [lower tribunal] made any ruling or conducted the proceedings in a manner contrary to established principles of law to the prejudice of the appellant." Fla. Dep't of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987) (quoting Carolina Lumber Co. v. Daniel, 97 So.2d 156, 158 (Fla. 1st DCA 1957) ). In that respect, the decision of the trial court enjoys a presumption of correctness and the burden falls to the appellant to demonstrate error. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). " ‘An appellant who presents no argument as to why a trial court's ruling is incorrect on an issue has abandoned the issue [.]’ " Davis v. State, 153 So.3d 399, 400 (Fla. 1st DCA 2014). As the Fourth District Court of Appeal observed:
This Court will not depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention. It is the duty of counsel to prepare appellate briefs so as to acquaint the Court with the material facts, the points of law involved, and the legal arguments supporting the positions of the respective parties. See Estate of Barret, 137 So.2d 587 (Fla. 1st DCA 1962) and Clonts v. Spurway, 104 Fla. 340, 139 So. 896 (1932). When points, positions, facts and supporting authorities are omitted from the brief, a court is entitled to believe that such are waived, abandoned, or deemed by counsel to be unworthy. Again, it is not the function of the Court to rebrief an...
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