Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc.

• Decision Date: 30 May 2012
• Docket Number: No. 1D10–2019.,1D10–2019.
• Citation: 88 So.3d 269
• Parties: Kaynan FITCHNER, as Personal Representative of the Estate of Chase Fitchner, Deceased, Appellant, v. LIFESOUTH COMMUNITY BLOOD CENTERS, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

88 So.3d 269

Kaynan FITCHNER, as Personal Representative of the Estate of Chase Fitchner, Deceased, Appellant,

v.LIFESOUTH COMMUNITY BLOOD CENTERS, INC., a Florida corporation, Appellee.

No. 1D10–2019.

District Court of Appeal of Florida, First District.

April 13, 2012.

Rehearing Denied May 30, 2012.

M. Stephen Turner, David K. Miller, and Ramona H. Thomas of Broad and Cassel, Tallahassee; Dean R. LeBoeuf and Rhonda S. Bennett of Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A., Tallahassee, for Appellant.

Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, and Christine Davis Graves of Carlton Fields, P.A., Tallahassee, for Appellee.

PADOVANO, J.

This is a wrongful death case. The jury returned a verdict in favor of the plaintiff, but this court reversed the judgment entered on the verdict in a previous appeal by the defendant. The proceeding on remand was concluded in the trial court by an order dismissing the plaintiff's complaint. The basis for the dismissal was that the plaintiff had failed to serve notice of the suit under the medical malpractice statute. The case is now back before the court on the plaintiff's appeal.

The question in this appeal is whether a statutory amendment including blood banks within the class of health care providers that are protected by the presuit screening requirements can be applied retroactively. We hold that it cannot. The amendment alters the substantive rights of the parties in that it adds a condition that can operate to bar a cause of action entirely. Because the amendment was not lawfully applicable in this case, we reverse the order dismissing the complaint and remand the case for a trial on the merits of the plaintiff's claim of negligence.

On September 22, 2002, while a patient at the Shands Hospital in Gainesville, then seven-year-old Chase Fitchner received blood provided to the hospital by LifeSouth Community Blood Centers. Chase became sick and several weeks later he was diagnosed as having West Nile Virus Encephalitis. The Centers for Disease Control investigated the matter with LifeSouth's cooperation and, as a result of the investigation, the infection was traced to the blood the hospital had acquired from LifeSouth.

Chase's parents, Ross and Kaynan Fitchner, retained a lawyer. On March 2, 2004, the lawyer sent a certified letter informing LifeSouth that he was representing the Fitchners in connection with the injury Chase had sustained when he contracted the virus from the blood LifeSouth had provided. In this letter, the lawyer requested copies of LifeSouth's policies and procedures for screening blood donors, documents supplied to the Centers for Disease Control in the investigation, and documents relating to the infected donor.

LifeSouth provided written acknowledgment of receipt of the letter and furnished copies of its investigation report and its procedures for screening blood donors. However, LifeSouth did not reveal critical information about its donor, whose identity is confidential by law, or about its screening of that donor. LifeSouth did not disclose that the donor did not understand English or that the LifeSouth screener did not speak the donor's language.

The Fitchners filed suit against LifeSouth on April 23, 2004. They sought damages for the injuries Chase had sustained as a result of LifeSouth's negligence in failing to ensure the safety of the blood he had received. LifeSouth moved to dismiss the complaint on the ground that the Fitchners had not sent a presuit notice of intent to initiate litigation for medical negligence. In support of its motion, LifeSouth relied on the 2003 amendment to section 766.202(4) Florida Statutes, which added blood banks to the class of potential defendants who are entitled to the procedural safeguards afforded by the statute.

The Fitchners opposed the motion to dismiss. They argued that LifeSouth had merely provided blood to the hospital and that the act of supplying the blood was not the equivalent of medical care or treatment. Thus, according to the Fitchners, the medical malpractice statute did not apply, and the failure to comply with statutory presuit notice requirements in the statute was not a proper basis for dismissal.

The trial court agreed with the Fitchners. The court ruled that LifeSouth is a health care provider, as defined in section 766.202(4), but it denied LifeSouth's motion to dismiss the complaint, concluding that a blood recipient's claim against a blood bank was not considered a claim for medical malpractice under section 766.102(1) Florida Statutes (2003).

Chase died on July 8, 2004, and his mother, Kaynan, was appointed as the personal representative of his estate. The complaint was amended to reflect that Kaynan was serving as the plaintiff in her representative capacity and to assert a cause of action for wrongful death. The allegations of negligence were the same as those in the original complaint.

The case was tried before a jury in June 2006, and the jury found LifeSouth liable to the estate for its negligence in failing to properly screen the blood. After hearing post-trial motions, the trial court entered a final judgment on the verdict in the amount of $8,029,425.00. LifeSouth then filed the first appeal to this court.

The issue presented in the appeal was whether a blood bank was a health care provider and, if so, whether the act of supplying blood constituted a medical service under the statute as amended in 2003. The court answered these questions in the affirmative and therefore concluded that the trial judge had erred in denying LifeSouth's motion to dismiss the complaint for noncompliance with presuit notice requirements. See LifeSouth Community Blood Centers, Inc. v. Fitchner, 970 So.2d 379, 381–84 (Fla. 1st DCA 2007). The court reversed the judgment for the Fitchners and remanded the case with instructions to grant the motion to dismiss. However, the opinion did not expressly direct the trial court to dismiss the action with prejudice or to enter judgment for LifeSouth. See LifeSouth, 970 So.2d at 384.

The Fitchners moved for clarification as to whether this court's decision intended the dismissal to be with or without prejudice and for certification of a question of great public importance to the Florida Supreme Court. The motion for clarification was denied, but the court certified the question it had decided in the appeal as a question of great public importance. See LifeSouth at 385. The Florida Supreme Court initially accepted jurisdiction but later declined to hear the case. Fitchner v. Lifesouth Community Blood Centers, Inc., 1 So.3d 172 (Fla.2009).

A dispute arose in the trial court regarding the permissible scope of the proceeding on remand. The closing line of the opinion in the prior appeal states that the order was reversed and that the case was remanded “for the trial court to enter an order granting appellant's motion to dismiss.” LifeSouth, 970 So.2d at 384. LifeSouth contended that this direction left nothing for the trial court to do but enter a judgment in its favor. In contrast, the Fitchners maintained that the effect of the reversal was to return the case to the posture it would have assumed had the trial court properly granted the motion to dismiss the complaint. They argued that if the complaint had been dismissed, they would have been afforded an opportunity to amend and that the situation was not different merely because the appellate court ordered the dismissal.

The trial court correctly interpreted the mandate to allow further proceedings on the Fitchners' claim. The Fitchners then attempted to serve a notice that would comply with the statutory requirements, but LifeSouth argued that the notice was untimely. Additionally, the Fitchners argued in the alternative that the notice should be excused, because the confidentiality rules in place at LifeSouth prevented them from obtaining the necessary information about the donor, and that the original letter their lawyer sent to LifeSouth on March 2, 2004, contains enough information to qualify as a notice of suit under the medical malpractice statute.

These arguments were resolved against the Fitchners. The trial court acknowledged that it would have been difficult or impossible for the Fitchners to discover the facts on which liability was based, given the confidentiality of blood donor records. The court recognized the equitable argument they had raised on this point but concluded, nonetheless, that it could find no authority to excuse the presuit notice requirements on a finding of impossibility of performance of a reasonable presuit investigation. Accordingly, the trial court dismissed the complaint with prejudice.

The Fitchners, who had by then obtained new counsel, moved for rehearing. Among other points made in the motion for rehearing, they argued that the 2003 amendment to the medical malpractice statute could not be applied to a cause of action accruing before the effective date of the statute. Because the cause of action in this case arose in the fall of 2002, they argued, the action could proceed as an ordinary negligence claim without the need for a notice under the medical malpractice statute. LifeSouth opposed the motion. The trial court held a hearing and considered oral arguments on the points raised in the motion for rehearing and response. Following the hearing, the court entered an order denying the motion. In the order, the judge stated that the only issue meriting consideration was whether the presuit notice requirement of the medical malpractice statute is unconstitutional as applied to the Fitchners. However, the court explained that this was not a proper basis for rehearing because it had not been raised before, and it was not a matter that the court had “overlooked or misapprehended.” The plaintiff then filed a timely appeal from the final order dismissing the complaint. Several issues have been raised and argued in the appeal, but only one...