Holmes Reg'l Med. Ctr., Inc. v. Dumigan

• Decision Date: 12 December 2014
• Docket Number: No. 5D14–505.,5D14–505.
• Parties: HOLMES REGIONAL MEDICAL CENTER, INC., Petitioner, v. Robert DUMIGAN and Edith Dumigan, Respondents.
• Court: Florida District Court of Appeals

151 So.3d 1282

HOLMES REGIONAL MEDICAL CENTER, INC., Petitioner

v.Robert DUMIGAN and Edith Dumigan, Respondents.

No. 5D14–505.

District Court of Appeal of Florida, Fifth District.

Dec. 12, 2014.

Gabrielle Osborne and Kenneth A. Beytin, of Beytin, McLaughlin, McLaughlin, O'Hara & Bolin, P.A., Tampa, for Petitioner.

Christopher D. Donovan, John A. Boudet and Robert B. Graziano, of Roetzel & Andress, LPA, Naples, for Respondents.

Opinion

COHEN, J.

In this petition for writ of certiorari, we are called upon to review whether the Florida Medical Malpractice Act's (“FMMA”)¹ presuit notice requirements are applicable to the facts of this case. The petitioner, Holmes Regional Medical Center, Inc. (“HRMC”), seeks certiorari review of a trial court order denying its motion to dismiss Robert and Edith Dumigan's (“the Dumigans”) complaint for negligence. In its petition, HRMC argues that the trial court departed from the essential requirements of the law when it denied its motion to dismiss, because: (1) the allegations of the complaint arise out of the rendering of, or the failure to render, medical care or services; (2) to prevail on their claims, the Dumigans would be required to address the medical negligence standard of care found in section 766.102(7), Florida Statutes (2013) ; and (3) the trial court's finding that the Dumigans' claims against HRMC are for product liability and not medical negligence contradicts well-established Florida law regarding strict liability and healthcare providers. In short, HRMC asserts that, despite being characterized as a cause of action for product liability and negligence, the facts alleged in the complaint set forth a medical malpractice claim subject to the presuit requirements.² We disagree.

To obtain relief via writ of certiorari, a petitioner must establish: (1) a departure from the essential requirements of the law; (2) a consequent material injury for the balance of the trial; and (3) the absence of an adequate remedy on appeal. Allan & Conrad, Inc. v. Univ. of Cent. Fla., 961 So.2d 1083, 1087 (Fla. 5th DCA 2007) (citing Martin–Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987) ). The second and third prongs of this three-part standard are often combined into the concept of “irreparable harm,” and they are jurisdictional. See Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So.3d 344, 351 (Fla.2012) (citing Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999) ). Therefore, an appellate court must find irreparable harm, i.e., a material injury that cannot be remedied on appeal, before it may even consider whether there has been a departure from the essential requirements of the law. See San Perdido Ass'n, 104 So.3d at 351 (citing Williams v. Oken, 62 So.3d 1129, 1132–33 (Fla.2011) ).

Although orders denying motions to dismiss are generally not reviewable by writ of certiorari, Florida courts have created an exception and permit certiorari review when the presuit requirements of the FMMA are at issue. Omni Healthcare, Inc. v. Moser, 106 So.3d 474, 475 (Fla. 5th DCA 2012). This exception is based on the purpose of the FMMA: to facilitate settlement and avoid baseless claims. Id. When a plaintiff files a medical malpractice action but does not satisfy the presuit notice requirements set forth in section 766.203(2), the defendant suffers a material injury that cannot be remedied in a postjudgment appeal. Rell v. McCulla, 101 So.3d 878, 880–81 (Fla. 2d DCA 2012) (citing Corbo v. Garcia, 949 So.2d 366, 368 (Fla. 2d DCA 2007) ). Therefore, irreparable harm occurs when a court improperly denies a motion to dismiss for failure to follow presuit requirements because the defendant loses the cost-saving benefits that the FMMA was intended to create. Palms W. Hosp. Ltd. P'ship v. Burns, 83 So.3d 785, 788 (Fla. 4th DCA 2011) (citing Dr. Navarro's Vein Ctr. of the Palm Beach, Inc. v. Miller, 22 So.3d 776, 778–79 (Fla. 4th DCA 2009) ).

Initially, we must address the Dumigans' claim that HRMC failed to preserve these issues for appeal. HRMC's motion to dismiss cited virtually no case law to assist the trial court in making its determination. HRMC did not provide any real analysis or case law until it filed what it labeled as “Defendant, [HRMC's] Reply to [the Dumigans'] Response to [HRMC's] Motion to Dismiss.” Despite the deficiencies in the initial motion to dismiss, we find that the argument was sufficiently raised to put both the Dumigans and the trial court on notice of what issues were involved.

On the merits of the case, we agree with HRMC that merely labeling a cause of action as either product liability or simple negligence is not dispositive. See Moser, 106 So.3d at 475 (finding that although plaintiff attempted to allege a claim in simple negligence, it was clear that the claim sounded in medical malpractice); S. Miami Hosp., Inc. v. Perez, 38 So.3d 809, 811–12 (Fla. 3d DCA 2010) (finding that plaintiff's premises liability claim was a “[disingenuous attempt] to avoid the [presuit notice] requirements of Chapter 766 by characterizing the [d]ecedent as a mere ‘business invitee’ ” because the claim was essentially a medical malpractice action); Martinez v. Lifemark Hosp. of Fla., Inc., 608 So.2d 855, 856–57 (Fla. 3d DCA 1992) (finding that the case should be handled under the FMMA because plaintiff's asserted claims of negligent hiring and retention, fraud and misrepresentation, and intentional tort were necessarily and inextricably connected to negligent medical treatment).

In determining whether an action sounds in medical malpractice, courts must—on a case-by-case basis—examine the allegations in the complaint and accept them as true. S. Baptist Hosp. of Fla., Inc. v. Ashe, 948 So.2d 889, 890 (Fla. 1st DCA 2007) (citing Foshee v. Health Mgmt. Assocs., 675 So.2d 957, 959 (Fla. 5th DCA 1996) ); see also Stackhouse v. Emerson, 611 So.2d 1365, 1366 (Fla. 5th DCA 1993). And because the presuit requirements of the FMMA limit the constitutional right of access to courts, they must be narrowly construed. See Acosta v. HealthSpring of Fla., Inc., 118 So.3d 246, 248 (Fla. 3d DCA 2013) (citing Pierrot v. Osceola Mental Health, Inc., 106 So.3d 491, 493 (Fla. 5th DCA 2013) ).³

Here, Mr. Dumigan was admitted to HRMC for cardiac bypass surgery; he left a double amputee. During the course of surgery, Mr. Dumigan was administered contaminated heparin

, which caused him to develop a severe bacterial infection that ultimately led to the amputation of his left leg and right foot. The Dumigans' complaint alleges that the heparin supplier had issued a recall of its contaminated product prior to Mr. Dumigan's surgery, but that HRMC failed to have adequate procedures in place to respond to the recall:

Despite the fact that [the manufacturer's] contaminated products had been recalled months earlier, [HRMC] failed to promptly remove and return all of its supplies of recalled ... heparin

products at the time of the recall. Instead, [HRMC] negligently failed to conduct an

adequate review and removal process for the ... recalled heparin

. At the time of Mr. Dumigan's operation, more than four months after [the manufacturer's] recall ... recalled heparin products were still in stock at [HRMC].

Notably, the healthcare workers, including the doctors who participated in the bypass surgery, are not defendants in the lawsuit. The Dumigans do not allege that the administration of heparin

as part of the surgical procedure was below the standard of care. Nor do they allege that the healthcare workers knew or had reason to know that the heparin was tainted. Moreover, the Dumigans' suit against HRMC is not based upon HRMC's vicarious liability for the negligence of its healthcare workers. Rather, it focuses on the administrative policies and actions of HRMC in responding to the recall of the contaminated heparin.

It is axiomatic that the mere fact that a wrongful act occurs in a medical setting does not automatically transform the contested action into one that sounds in medical malpractice; the wrongful act must be “directly related to the improper application of medical services and the use of professional judgment or skill.” Corbo, 949 So.2d at 368 (quoting Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002, 1003 (Fla. 3d DCA 1997) ). This Court has previously held that “[t]he primary test for whether a claim is one for medical malpractice is whether the claim relies on the application of the medical malpractice standard of care.”⁴ Pierrot, 106 So.3d at 493 (citing Weinstock v. Groth, 629 So.2d 835, 838 (Fla.1993) ; Joseph v. Univ. Behavioral LLC., 71 So.3d 913, 917 (Fla. 5th DCA 2011) ; GalenCare, Inc. v. Mosley, 59 So.3d 138, 141–43 (Fla. 2d DCA 2011) ).

Application of this standard is not always easy or consistent. The cases range from the obvious—such as an incorrect diagnosis or an error that occurs during treatment or surgery—to the more difficult—such as the condition of the premises or the use of tainted materials during a medical procedure. As to the latter category of cases, courts have not applied the standard uniformly. Still, some guiding principles can be gleaned from the case law.

Typically, if the negligent act occurs during the course of the medical procedure, courts find that the complaint sounds in medical malpractice. For example, in Corbo, 949 So.2d at 368, a patient was burned by an improperly calibrated machine during the course of physical therapy treatment. The patient filed suit, alleging simple negligence, but the physical therapy provider argued that the claim sounded in medical malpractice. Id. In finding that the case sounded in medical malpractice, the court reasoned that “the injury alleged by [the patient] was directly inflicted by the medical care-that is, physical therapy treatment-provided to her by the petitioner. [The patient's] claim thus arose ‘out of the rendering of ... medical care or services.’ ” Id. (citing § 766.106(1)(a), Fla. Stat.). In other words, the alleged ...