Maraj v. North Broward Hosp. Dist.

• Decision Date: 30 July 2008
• Docket Number: No. 4D07-1917.,4D07-1917.
• Citation: 989 So.2d 682
• Parties: Badewatte MARAJ and Sabindranath Maraj, Appellants, v. NORTH BROWARD HOSPITAL DISTRICT, Appellee.
• Court: Florida District Court of Appeals

989 So.2d 682 Badewatte MARAJ and Sabindranath Maraj, Appellants,
v.
NORTH BROWARD HOSPITAL DISTRICT, Appellee. No. 4D07-1917. District Court of Appeal of Florida, Fourth District. July 30, 2008. Rehearing Denied September 15, 2008.

[989 So.2d 683]

Richard F. Hussey of Richard F. Hussey, P.A., Fort Lauderdale, for appellants.

Janine Kalagher McGuire of Conrad & Scherer, LLP, Fort Lauderdale, for appellee.

TAYLOR, J.

Plaintiffs, Badewatte Maraj and Sabindranath Maraj, appeal the final summary judgment entered for North Broward Medical District (NBMD) in this medical malpractice action. The trial court concluded that the statute of limitations, section 95.11(4)(b), Florida Statutes (2007), had run with respect to the vicarious liability claim against NBMD. For reasons stated below, we reverse the summary final judgment.

This action stems from a visit by Sabindranath Maraj to the emergency room at North Broward Medical Center, owned and operated by NBMD, on September 12, 2001. Mrs. Maraj, then nine months pregnant and overdue, complained of abdominal pains to Dr. Richard J. Paley, the emergency room physician on duty. Because North Broward had no obstetrical unit, Dr. Paley consulted with the obstetrician on call, Dr. Bliss. Dr. Bliss ordered a biophysical ultrasound, which is used to determine the health of the fetus. When interpreting the ultrasound, a doctor considers the movement of the limbs, breathing, gross body movement, and the level of amniotic fluid. The doctor creates a biophysical profile, awarding a maximum of two points in each category.

In this case, radiologist Edward James, M.D. interpreted Mrs. Maraj's ultrasound and awarded six out of eight points. However, Dr. James did not specify that the two missing points were due to a complete lack of amniotic fluid. Upon receiving Dr. James's biophysical profile, Dr. Lawrence Katt discharged Mrs. Maraj.

Five days later, on September 17, 2001, Mrs. Maraj went to the emergency room at Broward General Medical Center with the same complaints: abdominal pain and overdue birth. Dr. Hood performed an ultrasound and determined that the fetus had died. The Marajs' stillborn baby was delivered by ceasarian section.

Mrs. Maraj remained at Broward General for four days, during which time Dr. Hood obtained her medical records from North Broward Medical Center. The records noted that Dr. James issued the biophysical profile after interpreting Mrs. Maraj's ultrasound. During their depositions, the Marajs stated that Dr. Hood informed them that the records reflected a complete lack of amniotic fluid. Dr. Hood also told them that when the doctors at North Broward Medical Center performed the ultrasound, they should have known there was no amniotic fluid in the sac. He further attributed the lack of amniotic fluid from September 12 through September 16 to the baby's death.

On November 18, 2003,¹ assuming that the statute of limitations began to run on September 17, 2001, the Marajs filed a notice of intent to initiate an action for medical malpractice under Florida Rule of Civil Procedure 1.650(b) against Dr. Paley, Dr. Katt, and NBMD. In their complaint filed April 8, 2004, the Marajs sued Dr. Paley and Dr. Katt for medical negligence

989 So.2d 684

under counts I and II respectively. Under count III, the complaint alleged that NBMD was "vicariously liable for the negligent acts and omissions of" doctors Paley and Katt. The Marajs did not mention Dr. James in the original or amended complaint.

Due to the Marajs' failure to comply with requirements contained in chapter 766, Florida Statutes (2003), Dr. Paley and Dr. Katt each filed a motion to dismiss. Section 766.203(2) requires a medical malpractice claimant to corroborate the assertion that reasonable grounds exist to file the claim with "a verified written medical expert opinion from a medical expert as defined in s. 766.202(6), at the time the notice of intent to initiate litigation is mailed." Section 766.202(6) requires an expert to meet the requirements contained in section 766.102. Because Drs. Paley and Katt are emergency room doctors, the expert must "have had substantial professional experience within the preceding 5 years while assigned to provide emergency medical services in a hospital emergency department." § 766.102(9)(a), Fla. Stat.

The trial court denied both motions to dismiss; however, we reversed that decision in Paley v. Maraj, 910 So.2d 282 (Fla. 4th DCA 2005). We held that the affiant on which the Marajs relied did not constitute a medical expert under § 766.102(9)(a), Fla. Stat., because the affiant was not an emergency room physician. Id. at 283. Subsequently, pursuant to a joint stipulation, the trial court entered a final...