Lifesouth Cmty. Blood Centers v. Fitchner

• Citation: 970 So.2d 379
• Decision Date: 30 October 2007
• Docket Number: No. 1D06-4475.,No. 1D06-4597.,1D06-4475.,1D06-4597.
• Parties: LIFESOUTH COMMUNITY BLOOD CENTERS, INC., Appellant, v. Kaynan FITCHNER, as Personal Representative of the Estate of Chase Fitchner, deceased, Appellees. Kaynan Fitchner, as Personal Representative of the Estate of Chase Fitchner, deceased, Appellant, v. Lifesouth Community Blood Centers, Inc., a Florida corporation, Appellee.
• Court: Court of Appeal of Florida (US)

970 So.2d 379

LIFESOUTH COMMUNITY BLOOD CENTERS, INC., Appellant, v. Kaynan FITCHNER, as Personal Representative of the Estate of Chase Fitchner, deceased, Appellees.

Kaynan Fitchner, as Personal Representative of the Estate of Chase Fitchner, deceased, Appellant, v. Lifesouth Community Blood Centers, Inc., a Florida corporation, Appellee.

No. 1D06-4475.

No. 1D06-4597.

District Court of Appeal of Florida, First District.

October 30, 2007.

Order Denying Clarification and Granting Certification December 26, 2007.

Christine R. Davis of Carlton Fields, P.A., Tallahassee, and Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, for Appellant in Case No. 06-4475/Appellee in Case No. 06-4597.

Thomas J. Guilday, Catherine B. Chapman, and J. Celeste Burns of Guilday, Tucker, Schwartz & Simpson, P.A., Tallahassee, for Florida Association of Blood Bank, Amicus Curiae for Appellant in Case No. 06-4475.

Raymond T. Elligett, Jr. and Amy S. Farrior of Buell & Elligett, P.A., Tampa, and Dean R. LeBoeuf and Rhonda S. Bennett of Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A., Tallahassee, for Appellees in Case No. 06-4475/Appellants in Case No. 06-4597.

WOLF, J.

In Case No. 1D06-4475, appellant, LifeSouth Community Blood Centers, Inc. (LifeSouth), raises several issues on appeal from a final judgment in favor of appellee, Kaynan Fitchner. We will address one which we find to be dispositive: Whether the trial court erred in denying appellant's motion to dismiss for appellee's failure to comply with the presuit notice requirements of section 766.106(2), Florida Statutes. We agree with LifeSouth on this point and reverse.

In Case No. 1D06-4597, appellant, Kaynan Fitchner, as Personal Representative of the Estate of Chase Fitchner, deceased, challenges the trial court's denial of the estate's motion for attorney's fees based on a settlement proposal.

We consolidate Case Nos. 1D06-4475 and 1D06-4597 for purposes of this opinion. In light of our disposition in Case No. 06-4475, we affirm the trial court's decision in Case No. 06-4597 without further comment.

On April 23, 2004, plaintiffs, Ross Fitchner and Kaynan Fitchner, individually and as parents and legal guardians of Chase Fitchner, filed a complaint against the defendant, LifeSouth Community Blood Centers, Inc. The complaint alleged that on or about August 15, 2002, Chase, age seven, was admitted into Shands Hospital for treatment related to Faconi's anemia. While at Shands, Chase received numerous transfusions from blood which was collected and disseminated by LifeSouth. Chase was discharged from Shands on October 7, 2002, but was readmitted on October 8, 2002, because he had been contaminated with West Nile Virus (WNV). Chase was discharged from Shands on February 14, 2003, and later died due to complications associated with WNV. The Center for Disease Control (CDC) conducted an investigation and determined that Chase was infected with WNV during one of his transfusions while at Shands.

The appellee filed an action for damages asserting that LifeSouth was negligent in the method by which they screened a donor whose blood contained WNV. Specifically, appellee asserted that the donor was not sufficiently familiar with English and that the LifeSouth screeners could not properly conduct the pre-screening process without an interpreter.

LifeSouth filed several motions to dismiss asserting that the appellee had not complied with the presuit notice requirements of chapter 766, Florida Statutes. The trial court denied these motions finding, while blood banks are health care providers, the appellee's complaint was not one for medical malpractice.

The issue before us is one involving statutory interpretation. That issue is whether the Legislature intended that an action based on the alleged negligent screening of blood donors by a blood bank be subject to the presuit notice requirements of section 766.106(2), Florida Statutes (2003). Our review of the trial court's decision is de novo. Dep't of Children & Families v. P.S., 932 So.2d 1195, 1197 (Fla. 1st DCA 2006).

Section 766.106(2), Florida Statutes, provides that, prior to filing a suit for medical negligence, a claimant shall notify each prospective defendant. Failure to follow these procedures will result in dismissal. See Goldfarb v. Urciuoli, 858 So.2d 397, 399 (Fla. 1st DCA 2003) (stating "if the required presuit notice is not given to a health care provider, the complaint is properly dismissed"). Appellee relies on Silva v. Southwest Florida Blood Bank, Inc., 601 So.2d 1184 (Fla.1992), for the proposition that no such notice was required in this case. In Silva, the supreme court determined that blood banks are not subject to the two-year statute of limitations for medical malpractice under section 95.11(4)(b), Florida Statutes (1991). The supreme court analyzed section 95.11(4)(b) by inquiring whether: 1) the action before the court arose out of a medical diagnosis, treatment, or care; and 2) whether the diagnosis, treatment, or care was rendered by a "provider of health care." Silva, 601 So.2d at 1186. In its analysis, the supreme court decided that the words "diagnosis," "treatment," and "care" were unambiguous and, because the blood bank did not deal with patients, it was merely "the supplier of a product." Id. at 1187. The supreme court referred to section 672.316(5), Florida Statutes (1981), acknowledging that the Legislature, in one context, declared the sale of blood to be a service; however, it further posited: "There is no evidence to suggest that the legislature intended this legal fiction (that selling blood is a "service" rather than a "sale") to apply in any other context." Id. at 1188. However, the court noted that, even if blood banks provided a service, the service could not be read to mean a diagnosis, treatment, or care, as required by the 1991 statute of limitations. Id. Additionally, the supreme court determined that it could find "no indication that the legislature intended for blood banks to be considered `providers of health care' for purposes of the medical malpractice statute of limitations." Id. at 1189. Accordingly, the supreme court held that a blood bank was not a provider of health care that rendered diagnosis, treatment, or care. Id.

Relying on Silva, the Fourth District in Community Blood Centers of South Florida, Inc. v. Damiano, 697 So.2d 948 (Fla. 4th DCA 1997), determined that the presuit notice requirements did not apply to blood banks. We determine neither Silva nor Damiano control the outcome of the instant case. First, the Silva holding was limited to whether blood banks were subject to the two-year statute of limitations for medical malpractice suits in 1991. Id. Second, since Silva and Damiano were decided, the Legislature has made crucial changes to the medical malpractice statute, in particular, broadening its application to blood banks. See Ch.2003-416, Laws of Fla.

In 2003, the Legislature amended section 766.202, Florida Statutes, to define "health care provider" to specifically include blood banks. Ch.2003-416, § 57, Laws of Fla. Thus, the issue of whether a blood bank is a health care provider, which concerned the supreme court in Silva, has been put to rest. The second issue is whether the screening of blood constitutes medical negligence pursuant to chapter 766. To determine this question, we need not only look at the definition of health care provider, but the purpose of chapter 2003-416, as well as other amendments contained within this legislation.

The Legislature changed the scope of chapter 766 from "medical malpractice" to "medical negligence," most notably in the amendments to subsections 766.106(1) and (2), Florida Statutes.

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

(1) Definitions. — As used in this section, the term:

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

(b) "Self-insurer" means any self-insurer authorized under s. 627.357 or any uninsured prospective defendant.

(c) "Insurer" includes the Joint Underwriting Association.

(2) Presuit notice. —

(a) After completion of presuit investigation pursuant to s. 766.203(2) s. 766.203 and prior to filing a complaint claim for medical negligence malpractice, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence malpractice. Notice to each prospective defendant must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the 2-year period prior to the alleged act of negligence who treated or evaluated the claimant, and copies of all of the medical records relied upon by the expert in signing the affidavit. The requirement of providing the list of known health care providers may not serve as grounds for imposing sanctions for failure to provide presuit discovery.

Ch. 2003-416, § 49, Laws of Fla.

It appears that the purpose of the change was to remove the focus of the chapter from traditional medical malpractice to all situations of medical negligence involving diagnosis, treatment, and care. In addition, in section 766.102(1), Florida Statutes (2003), entitled "Medical negligence; standards of recovery; expert witness," the Legislature added a specific reference to section 766.202(4) which, as previously stated, now includes blood banks. Section 766.102(1), Florida Statutes, now provides:

In any action for recovery of damages based on the death ... of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as...