Fassy v. Crowley

• Decision Date: 10 September 2004
• Docket Number: No. 2D04-1.,2D04-1.
• Citation: 884 So.2d 359
• Parties: Lynn R. FASSY, M.D., and Pain Medicine Associates, P.A., Petitioners, v. Julia P. CROWLEY, as Personal Representative of the Estate of Julia Lea Morgan, deceased, Respondent.
• Court: Florida District Court of Appeals

884 So.2d 359

Lynn R. FASSY, M.D., and Pain Medicine Associates, P.A., Petitioners, v. Julia P. CROWLEY, as Personal Representative of the Estate of Julia Lea Morgan, deceased, Respondent.

No. 2D04-1.

District Court of Appeal of Florida, Second District.

September 10, 2004.

Ross L. Fogleman, III, and Claudia Rosenkoetter of Fogleman & Rosenkoetter, P.A., Sarasota, for Petitioners.

Ronald S. Gilbert of Morgan, Colling & Gilbert, P.A., Orlando, for Respondent.

WALLACE, Judge.

Lynn R. Fassy, M.D. (Dr. Fassy), and Pain Medicine Associates, P.A. (PMA), petition for a writ of certiorari seeking review of a nonfinal order that denied their motion to dismiss a complaint filed against them by Julia Crowley, as personal representative of the estate of Julia Lea Morgan, deceased (the Personal Representative). The complaint alleged that Dr. Fassy and PMA breached their statutory duty to Julia Morgan (the Decedent), a developmentally disabled person, under the Bill of Rights of Persons Who Are Developmentally Disabled, section 393.13, Florida Statutes (2002) (the Bill of Rights). Specifically, the complaint alleged that Dr. Fassy and PMA breached their duty under the Bill of Rights to keep the Decedent free from harm when she was excessively medicated through an implanted pain medication pump, causing her death. Section 393.13(3)(g) provides: "Persons who are developmentally disabled shall have a right to be free from harm, including unnecessary physical, chemical, or mechanical restraint, isolation, excessive medication, abuse, or neglect."

In the circuit court, Dr. Fassy and PMA argued that the Personal Representative's claim was essentially a medical malpractice action and that she had failed to follow the presuit notice and screening requirements of the Medical Malpractice Act, section 766.106, Florida Statutes (2002), and Florida Rule of Civil Procedure 1.650, the Medical Malpractice Presuit Screening Rule. Citing Integrated Health Care Services, Inc. v. Lang-Redway, 840 So.2d 974 (Fla. 2002), the circuit court noted that the test for determining whether the presuit notice requirements of section 766.106 apply is whether the plaintiff must rely on the medical negligence standard of care as set forth in section 766.102(1). Following the analysis set forth in Integrated Health Care Services, the circuit court denied Dr. Fassy and PMA's motion to dismiss, ruling that "since section 393.13(4)(c) sets forth its own standard of care, the presuit requirements of chapter 766 do not apply."

The circuit court departed from the essential requirements of law when it ruled that section 393.13(4)(c) set forth a standard of care applicable to the lawsuit at issue. For the reasons set forth below, we grant the petition for a writ of certiorari.

The Limited Standard of Review on Certiorari

Certiorari generally does not lie to review the denial of a motion to dismiss. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). Nonfinal orders are generally reviewable only on plenary appeal of the final order disposing of the case. Florida Rule of Appellate Procedure 9.130(a)(3) designates those few types of nonfinal orders deemed important enough for immediate review. Certiorari review of nonfinal orders under rule 9.030(b)(2)(A) is "an extraordinary remedy which should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of nonfinal orders." State Farm. Mut. Auto. Ins. Co. v. Peters, 611 So.2d 597, 598 (Fla. 2d DCA 1993) (citing Martin-Johnson, Inc.,509 So.2d 1097). "[I]t is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. It is anticipated that since the most urgent interlocutory orders are appealable under this rule, there will be very few cases where common law certiorari will provide relief." State v. Pettis, 520 So.2d 250, 252 (Fla.1988) (quoting rule 9.130 committee note).

A certiorari petition must satisfy three requirements before a district court can grant relief from an erroneous interlocutory order. "A petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on post-judgment appeal." Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). As the Parkway Bank court explained, the final two prongs of the test are jurisdictional. The district court must conduct the jurisdictional analysis before it is empowered to determine whether to grant relief on the merits, i.e., whether the nonfinal order departs from the essential requirements of the law. Id. at 649.

Certiorari jurisdiction may lie when chapter 766 presuit requirements are at issue. Pearlstein v. Malunney, 500 So.2d 585 (Fla. 2d DCA 1986); St. Mary's Hosp. v. Bell, 785 So.2d 1261, 1262 (Fla. 4th DCA 2001); Okaloosa County v. Custer, 697 So.2d 1297, 1297 (Fla. 1st DCA 1997). The statutes requiring presuit notice and screening "cannot be meaningfully enforced postjudgment because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance." Parkway Bank, 658 So.2d at 649. In addition, interlocutory review may be necessary to promote the Medical Malpractice Reform Act's purpose of encouraging settlement. Cent. Fla. Reg'l Hosp. v. Hill, 721 So.2d 404, 405 (Fla. 5th DCA 1998).

In this case, without this court's intervention by writ of certiorari, the Personal Representative conceivably could obtain a judgment against Dr. Fassy and PMA. If, on appeal, Dr. Fassy and PMA succeed in obtaining a reversal of the judgment because the Personal Representative failed to comply with chapter 766 presuit requirements, then the appellate remedy would be inadequate to correct the error of subjecting Dr. Fassy and PMA to the very trial that presuit procedures were intended to prevent. In that event, the purposes of these cost-saving presuit procedures would be thwarted, and the appellate remedy would serve "no useful purpose." See Pearlstein, 500 So.2d at 587

. Therefore, the nonfinal order under review, if in error, would result in material injury to Dr. Fassy and PMA that cannot be corrected on postjudgment appeal.

Satisfied that the jurisdictional prongs of the certiorari standard have been met, we turn to the remaining prong of the certiorari standard: whether the error of which Dr. Fassy and PMA complain constitutes a departure from the essential requirements of the law.

The Essential Requirements of Law

A departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. There must be a violation of a clearly established principle of law resulting in a miscarriage of justice. Combs v. State, 436 So.2d 93, 95-96 (Fla.1983). The inquiry is not as concerned "with the mere existence of legal error as much as with the seriousness of the error." Id. A failure to observe the essential requirements of the law has been held synonymous with a failure to apply "the correct law." Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995).

Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003), held that "`clearly established law' can derive from a variety of legal sources," and thus "in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review." In Kaklamanos, no appellate case controlled the issue, so our supreme court looked to the intent of the personal injury protection (PIP) statute and read various parts of the statute in pari materia to find "clearly established law" upon which certiorari review could be granted. Id. at 891-92. The order reviewed in Kaklamanos failed to apply the correct law as clearly established, and the error was sufficiently egregious or fundamental to warrant certiorari review. Id. at 890.

Ivey v. Allstate Insurance Co., 774 So.2d 679, 682-83 (Fla.2000), cautioned that a misapplication of the correct law or an erroneous interpretation of a law does not rise to the necessary level. A decision "made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding remedial by certiorari." Id. at 682 (paraphrasing Heggs, 658 So.2d at 525).

Chapter 766 Presuit Requirements in General

Chapter 766 presuit screening is required only where the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1). Integrated Health Care Servs., 840 So.2d at 980; Tenet St. Mary's, Inc. v. Serratore, 869 So.2d 729, 731 n. 1 (Fla. 4th DCA 2004). "The key inquiry under the statute is whether the action `aris[es] out of any medical, dental, or surgical diagnosis, treatment, or care.' If there is doubt as to the applicability of such a statute, the question is generally resolved in favor of the claimant." J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 947 (Fla.1994) (quoting Baskerville-Donovan Eng'rs, Inc. v. Pensacola Executive House Condo. Ass'n, 581 So.2d 1301, 1303 (Fla.1991)); see also Feifer v. Galen of Fla., Inc., 685 So.2d 882, 885 (Fla. 2d DCA 1996)

. "[W]hen possible the presuit notice and screening statute should be construed in a manner that favors access to courts." Integrated Health Care Servs.,

840 So.2d at 980 (quoting Patry v. Capps, 633 So.2d 9, 13 (Fla.1994)).

There are generally two types of cases in which chapter 766 presuit requirements may not apply in a medical care setting. The first is where a plaintiff can successfully allege factual matters constituting ordinary negligence of a health care provider. See, e.g., Tenet St. Mary's,869 So.2d 729 (holding no chapter 766 presuit requirements for suit alleging simple negligence in...