Foshee v. Health Management Associates, 95-941

• Decision Date: 10 May 1996
• Docket Number: No. 95-941,95-941
• Citation: 675 So.2d 957
• Parties: 21 Fla. L. Weekly D1127 Pamela FOSHEE, Appellant, v. HEALTH MANAGEMENT ASSOCIATES, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 957

675 So.2d 957

21 Fla. L. Weekly D1127

Pamela FOSHEE, Appellant, v. HEALTH MANAGEMENT ASSOCIATES, etc., et al., Appellees.

No. 95-941.

District Court of Appeal of Florida,

Fifth District.

May 10, 1996.

Rehearing Denied July 2, 1996.

William W. Sydnor of the Law Offices of Dominick J. Salfi, P.A., Maitland, and Marcia K. Lippincott of Marcia K. Lippincott, P.A., Maitland, for Appellant.

Alan J. Landerman of Parker, Goodwin, McGuire, Burke, Landerman & Parker, P.A., Orlando, for Appellees Health Management Associates, Inc. of Delaware, Orlando HMA, Inc., d/b/a Orlando Health Management Associates, Inc., d/b/a University Behavioral Center and Florence M. Lally, R.N.

Jennings L. Hurt, III, and Michael V. Hammond of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellee Ramon O. Martinez, M.D., d/b/a Central Florida Psychiatric Associates, P.A.

Robert A. Hannah, J. Charles Ingram and Robert J. Egan of Hannah, Marsee & Voght, P.A., for Appellee Edward Cabrera, M.D., d/b/a Orlando Family Medicine Associates, P.A.

DAUKSCH, Judge.

This is an appeal from an order dismissing a complaint alleging false imprisonment and intentional infliction of emotional distress against various persons. Those persons both natural and corporate, are in the health care business and the first question on appeal is whether the allegations of the complaint set up a medical malpractice claim requiring the plaintiff to comply with the pre-suit notice requirements of section 766.106, Florida Statutes (1989). See Tunner v. Foss, 655 So.2d 1151 (Fla. 5th DCA), rev. denied, 663 So.2d 630 (Fla.1995). The second question on appeal is whether the plaintiff can maintain an action against some of the defendants for deprivation of her rights under color of a state statute, the Baker Act, Chapter 394, Florida Statutes. 42 U.S.C. § 1983.

Appellant alleged in her complaint that she went to her treating physician, defendant Cabrera, who worked for a professional association, defendant Orlando Family Medicine Associates, for treatment of her headaches. He recommended hospitalization; she at first refused that but then agreed to admit herself to be monitored while undergoing medical treatment. Cabrera directed her to Florida Hospital so that she could be admitted to have her medications and vital signs monitored while undergoing the treatment. Before she could get to the hospital she was contacted by Cabrera who told her that Florida Hospital had no beds available and that she should go to defendant Health Management Associates, Inc., d/b/a University Behavioral Center. She was told to meet defendant Martinez, who practices under the name of Central Florida Psychiatric Associates, P.A. She was not told that Martinez is a psychiatrist, which he is, or that University Behavioral Center is a psychiatric facility, which it is.

Upon arriving at the Center plaintiff was told by employees there that she could not see Martinez until she was formally admitted into the facility. Defendant Lally, a nurse, told her she had to sign a voluntary admission form or she would be involuntarily detained under the Baker Act. Plaintiff refused to sign herself in and was then physically prevented from leaving. She was coerced and deceived to sign voluntary admission papers. No physician examined or consulted with her at the Center before her admission into the Center and Martinez and the others at the Center refused to allow her to leave. After she was kept there for two days, and only after she refused to sign the forms to have her insurance pay the Center and Martinez, she was allowed to go on her way.

Appellant sued Cabrera, the Center, Martinez and their respective corporations or professional associations. She also sued Florence Lally, the nurse involved.

Whether a plaintiff must give the requisite pre-suit notice required by the statute is fact-dependant. The statute itself defines what is a claim for medical malpractice.

766.106 Notice before filing action for medical malpractice; presuit screening period; offers for admission of liability and for arbitration; informal discovery; review.--

(1) As used in this section:

(a) "Claim for medical malpractice" means a claim arising out of the rendering of, or the failure to render, medical care or services.

The allegations of the complaint, which must be taken as true, are what determine the facts. Stackhouse v. Emerson, 611 So.2d 1365 (Fla. 5th DCA 1993). It is up to the court to decide from the allegations in the complaint whether the claim arises "out of the rendering of, or the failure to render, medical care or services."

We have examined the complaint and have determined, firstly, that no cause of action against any of the defendants has been properly pleaded to support a claim under 42 U.S.C. § 1983. ¹ Merely acting pursuant to a statute does not make one's conduct "under color of state law." Lugar v. Edmondson Oil Co., 457 U.S. 922, 938, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982). The deprivation of rights must be "fairly attributable to the state." Id. And, it must be caused by the exercise of some right or privilege created by the State, and the party charged with the deprivation must be "a person who may fairly be said to be a state actor." Id. Further, "As a matter of substantive constitutional law the state-action requirement reflects judicial recognition of the fact that 'most rights secured by the Constitution are protected only against infringement by governments.' " Id.; Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Lugar teaches that without limits such as...