Integrated Health Care Serv., Inc. v. Lang-Redway

• Decision Date: 12 December 2002
• Docket Number: No. SC01-792.,SC01-792.
• Citation: 840 So.2d 974
• Parties: INTEGRATED HEALTH CARE SERVICES, INC., et al., Petitioners, v. Pauline LANG-REDWAY, etc., Respondent.
• Court: Florida Supreme Court

840 So.2d 974

INTEGRATED HEALTH CARE SERVICES, INC., et al., Petitioners, v. Pauline LANG-REDWAY, etc., Respondent.

No. SC01-792.

Supreme Court of Florida.

December 12, 2002.

Rehearing Denied March 13, 2003.

Scott A. Mager and Gary S. Gaffney of Mager & Associates, P.A., Fort Lauderdale, Florida; and Andrew R. McCumber and Edward Carlos Prieto of Quintairos, McCumber, Prieto & Wood, P.A., Miami, FL, for Petitioners.

Susan B. Morrison of Wilkes & McHugh, P.A., Tampa, FL, for Respondent.

SHAW, J.

We have for review a decision of a district court of appeal on the following question, which the court certified to be of great public importance:

If a plaintiff files a lawsuit seeking to enforce only those rights enumerated in section 400.022, must the plaintiff comply with the presuit conditions in section 766.106?

Integrated Health Care Services, Inc. v. Lang-Redway, 783 So.2d 1108, 1112 (Fla. 2d DCA 2001). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS

From October 1997 to February 1998, Albert Redway was a resident at an Integrated Health Services ("IHS") nursing home. Immediately thereafter, he resided at the Bon Secours Maria Manor ("Bon Secours") until his death in April of 1998. Pauline Lang-Redway, the personal representative for the estate of Albert Redway, sued IHS and Bon Secours, alleging that both nursing homes violated Redway's statutory rights as provided under section 400.022, Florida Statutes (1997). Relative to defendant Bon Secours,¹ the complaint alleged that Bon Secours violated section 400.022 when it failed to (1) assure that Redway received adequate health care and support services, (2) prevent his pressure sores and treat such sores after they occurred, (3) maintain accurate medical or clinical records including its failure to adequately document Redway's injuries, (4) protect him from unexplained injuries and prevent him from falling at the facility, (5) adequately monitor his nutritional intake, (6) adequately monitor significant signs and symptoms of infection, and (7) train, supervise, and retain a proper staff. The complaint specifically stated that it was founded on duties imposed by section 400.022.

The defendants moved to dismiss the complaint on several grounds, including the allegation that despite the fact that the plaintiff had fulfilled the presuit requirements under section 400.023(4), she had failed to fulfill the presuit requirements under chapter 766, Florida Statutes (1997)—a necessary step before bringing a medical negligence action. The trial court denied the motion to dismiss, and Bon Secours appealed. The Second District Court of Appeal affirmed, noting that:

The complaint alleges violations of Mr. Redway's rights as a nursing home resident exclusively under section 400.022. It includes a claim for wrongful death and, in the alternative, a claim for damages if the defendant's negligence did not cause Mr. Redway's death. However, both claims are based upon a violation of a statutory right instead of a common law right. The six-count complaint does not name or identify any physician or other "health care provider" as a defendant. See § 766.102(1), Fla. Stat. (1997) (citing § 768.50(2)(b), Fla. Stat. (1985)). Although the complaint alleges that Mr. Redway did not receive adequate and appropriate health care at the facilities as a statutory claim under section 400.022(1)(l), the plaintiff does not allege any common law theory attempting to make the defendants vicariously liable for a breach of a professional standard of care by a health care provider.

. . . .

In cases involving vicarious liability of nursing homes for the actions of their employees, determining whether the presuit requirements of chapter 766 are invoked has been a difficult task for the judiciary. See Weinstock v. Groth, 629 So.2d 835 (Fla.1993)

; NME Properties, Inc. v. McCullough, 590 So.2d 439 (Fla. 2d DCA 1991); Liles v. P.I.A. Medfield, Inc., 681 So.2d 711 (Fla. 2d DCA 1995). In general, a plaintiff must comply with these conditions if it seeks to make a defendant vicariously liable for the actions of a health care provider under the medical negligence standard of care set forth in section 766.102(1). See Weinstock, 629 So.2d at 838; Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251 (Fla. 1st DCA 2000). This complaint does not seek vicarious liability for the actions of a health care provider under a medical negligence standard.

The defendants' arguments in this case are based, in part, upon a misunderstanding of dicta contained in NME Properties. In that case, we suggested that a nursing home could be liable under a professional standard of care for the actions of a licensed nurse. See NME Properties, 590 So.2d at 441

. Such a nurse is a "health care provider" for the purposes of section 766.102(1), and we continue to believe that a nursing home could be liable, on a common law claim, for the actions of such a licensed nurse. Thus, if a complaint contained both a count alleging a violation of chapter 400 and a separate claim for professional malpractice under the common law, the presuit requirements of chapter 766 would probably apply to the lawsuit.

The defendants misread NME Properties as requiring compliance with the presuit requirements of chapter 766 when a plaintiff alleges only a breach of the statutory "right to receive adequate and appropriate health care and protective and support services" under section 400.022(1)(l).... [W]e reject such a requirement.

Integrated Health Care Services, Inc. v. Lang-Redway, 783 So.2d 1108, 1109-10 (Fla. 2d DCA 2001) (footnote omitted). The district court of appeal then recognized that this issue (i.e., whether the presuit conditions in chapter 766 apply to claims filed under chapter 400) has been a difficult issue of statewide concern and, accordingly, certified the above question as one of great public importance.

DISCUSSION

Stated simply, the issue presented in this case is whether a plaintiff alleging that a nursing home violated its statutory duty to provide adequate and appropriate health care must comply with two separate presuit requirements. Before answering this question, we first examine the relevant statutory provisions of chapter 766 and chapter 400, Florida Statutes (1997). Chapter 766 provides certain statutory prerequisites to the filing of a lawsuit involving a medical malpractice claim while chapter 400 sets forth statutory prerequisites for filing a suit against a nursing home.

CHAPTER 766

In 1988, the Legislature made explicit findings, recognizing that medical malpractice claims resulted in increased medical care costs for most patients and prevented some physicians from being able to obtain malpractice insurance. In an attempt to alleviate these problems, the Legislature structured a statutory scheme that would encourage the early settlement of meritorious claims while screening out frivolous claims. See ch. 88-1, § 48, at 164, Laws of Fla.

Pursuant to section 766.203(1), presuit investigation requirements apply to all medical negligence claims, a term which is defined as "medical malpractice, whether grounded in tort or in contract." § 766.202(6), Fla. Stat. (1997). The claimant bringing such an action must investigate and corroborate that there are reasonable grounds to believe that all named defendants were negligent in the care and treatment and that such negligence resulted in the claimant's injury:

(1) Presuit investigation of medical negligence claims and defenses pursuant to this section and ss. 766.204-766.206 shall apply to all medical negligence, including dental negligence, claims and defenses....

(2) Prior to issuing notification of intent to initiate medical malpractice litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that:

(a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and

(b) Such negligence resulted in injury to the claimant.

Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant's submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(5), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.

§ 766.203(1)-(2), Fla. Stat. (1997). After the claimant completes the presuit investigation, she or he must then notify each "prospective defendant"² of the intent to initiate litigation prior to filing a claim for medical malpractice. See § 766.106(2)(3)(a), Fla. Stat. (1997).³ If the defendant is a licensed physician, osteopath, chiropractor, podiatrist, or dentist, the plaintiff must also notify the Department of Business and Professional Regulation. After the presuit investigation is complete, the parties may elect to enter voluntary binding arbitration pursuant to sections 766.207-766.212.

In reviewing chapter 766, courts have been plagued by a lack of comprehensive definitions,⁴ including a definitive statement as to who are considered "health care providers" covered by chapter 766's presuit requirements. For example, throughout chapter 766, the term "health care provider" has three different definitions, the broadest of which defines "health care provider" as

hospitals licensed under chapter 395; physicians licensed under chapter 458; osteopaths licensed under chapter 459; podiatrists licensed under chapter 461; dentists licensed under chapter 466; chiropractors licensed under chapter 460; naturopaths licensed under chapter 462; nurses licensed under chapter 464; clinical laboratories registered under chapter 483; physicians' assistants certified under chapter 458; physical therapists and physical therapist assistants licensed under chapter 486; health maintenance organizations certificated under part II of chapter 641; ambulatory surgical

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