Michael v. Medical Staffing Network, Inc.

• Decision Date: 10 January 2007
• Docket Number: No. 3D05-2878.,3D05-2878.
• Citation: 947 So.2d 614
• Parties: Esteva E. MICHAEL, as Personal Representative of the Estate of Claude S. Michael, deceased, Appellant, v. MEDICAL STAFFING NETWORK, INC., d/b/a All Better Nursing and Milton McCall, R.N., et al., Appellees.
• Court: Florida District Court of Appeals

947 So.2d 614

Esteva E. MICHAEL, as Personal Representative of the Estate of Claude S. Michael, deceased, Appellant, v. MEDICAL STAFFING NETWORK, INC., d/b/a All Better Nursing and Milton McCall, R.N., et al., Appellees.

No. 3D05-2878.

District Court of Appeal of Florida, Third District.

January 10, 2007.

Gamba & Lombana and Tomas F. Gamba and Hector J. Lombana; Billbrough & Marks and Geoffrey B. Marks and G. Bart Billbrough, Miami, for appellant.

Carlton Fields and Sylvia H. Walbolt, Tampa, and F. Townsend Hawkes, Tallahassee, and Dean A. Morande, West Palm Beach, for appellees.

Before FLETCHER and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.

CORTIÑAS, Judge.

In this appeal, we must review whether the trial court correctly interpreted this court's prior opinion in Largie v. Gregorian, 913 So.2d 635 (Fla. 3d DCA 2005), as well as the Florida Supreme Court's opinion in Kukral v. Mekras, 679 So.2d 278 (Fla.1996), to require a certain level of specificity in naming prospective defendants in corroborating medical expert affidavits served in medical malpractice actions, pursuant to chapter 766, Florida Statutes (2004).

This case arises from the following facts. On February 5, 2002, Claude S. Michael, the decedent, went to Jackson South Community Hospital ("Jackson South") to receive treatment for a laceration on his forehead. He was admitted to the hospital overnight for observation. During his overnight stay, Mr. Michael began complaining of chest pains. A nurse gave him five doses of nitroglycerin during the course of the night without obtaining a doctor's order or otherwise consulting with a doctor. The following morning, Mr. Michael's doctor became aware of his chest pains and diagnosed Mr. Michael with a myocardial infarction. Mr. Michael was transferred to Jackson South's intensive care unit and then to South Miami Hospital. Mr. Michael passed away later that day at South Miami Hospital.

Prior to the expiration of the statute of limitations, Esteva Michael, the wife of Mr. Michael and personal representative of his estate ("the Plaintiff"), served Jackson South and two doctors who treated Mr. Michael with a notice of intent to initiate litigation pursuant to chapter 766, Florida Statutes. This notice named the prospective defendants as "the Public Health Trust d/b/a Jackson South Community Hospital, and its employees and actual and apparent agents." Consistent with Rule 1.650(b) of the Florida Rules of Civil Procedure, the notice also indicated that it "operates as notice to any other prospective defendant who on the above date bore a legal relationship to the Public Health Trust d/b/a Jackson South Community Hospital, including any of its agents and/or employees." See Fla. R. Civ. P. 1.650(b). The notice indicated the prospective defendants' obligation to participate in informal discovery, and specifically requested information on any other person or entity the prospective defendants contend may be responsible for the negligence. Paragraph 5 of the notice stated as follows:

If you contend that someone other than your agents and/or employees were responsible, in whole or in part, for the occurrence of the negligence that is being alleged by Esteva Michael, as the Personal Representative of the Estate of Claude Michael, please state each such person or entity's name, address, job title, along with the facts upon which you base your contention that he, she or the entity was responsible.

In addition to sending this notice, the Plaintiff also sent Jackson South a medical expert affidavit indicating that a reasonable investigation into the claim had been conducted. Paragraph 9 of the medical expert affidavit stated:

Specifically, it is my professional opinion, within a reasonable degree of medical probability, that there was a deviation from the accepted standard of care in the care and treatment of Michael S. Claude by the aforementioned physicians and medical providers[¹] who committed medical negligence which caused and/or substantially contributed to the death of Michael S. Claude, and which included, but was not limited to, the following manner:

a) Failure to timely and appropriately recognize and appreciate Michael S. Claude's myocardial infarction and related symptoms including, but not limited to, at least five (5) episodes of angina b) Failure to timely and appropriately evaluate Michael S. Claude's myocardial infarction and related symptoms including, but not limited to, ordering additional diagnostic studies including EKGs, cardiac enzymes and cardiology consult;

c) Failure to provide timely and appropriate care and treatment and intervention for Michael S. Claude's myocardial infarction and related symptoms; and

d) Failure to transfer Michael S. Claude to another hospital and/or facility in a timely manner.

Despite being served with these documents which specifically outlined the basis of the malpractice claim, and specifically requested information as to any other parties involved in the negligence, and despite having an independent legal obligation to disclose such discoverable information, Jackson South delayed for almost an entire year in providing the Plaintiff with the name of the nurse it contends administered the nitroglycerin doses. Instead of abiding by the two agreed-upon extensions of the pre-suit period and their promise to make available medical personnel for sworn statements, Jackson South abruptly denied the Plaintiff's claim, thereby ending the pre-suit period.² Accordingly, the Plaintiff filed suit against Jackson South and the two doctors whose names were known, and immediately propounded interrogatories seeking to discover the name of the party responsible for administering the nitroglycerin. Interestingly, the doctors asserted Fabre defenses,³ and stated in depositions that they could not discern the initials of the nurse who recorded the nitroglycerin doses in the decedent's medical records nor did they independently recall the identity of that person.

In December 2004, some ten months after first receiving notice of the claim, Jackson South finally advised the Plaintiff that Milton McCall ("McCall") was the nurse they contend administered the nitroglycerin. Jackson South also disclosed that McCall was employed by Medical Staffing Network ("MSN"), with whom Jackson South had contracted. Immediately upon receiving this information, the Plaintiff sought leave to file an amended complaint to include counts against MSN and McCall. MSN and McCall opposed the Plaintiff's attempt to amend the complaint, alleging that the Plaintiff failed to comply with the pre-suit notice requirement. The trial court allowed the Plaintiff to file an amended complaint, and denied MSN and McCall's motion to dismiss the amended complaint on the same ground. Subsequently, MSN and McCall moved for summary judgment, arguing that the pre-suit notice was defective. After a hearing, the trial court granted their motion and entered summary judgment in their favor.

Upon review of the trial court's order and the transcript of the summary judgment hearing, it is evident that the trial court was primarily concerned with the sufficiency of the medical expert affidavit. The trial court found that the issue of service of the notice and affidavit required a determination as to "agency" and the "issue of control." As the trial court did not decide whether there was a legal relationship between Jackson South, the defendant who received the notice of intent, and MSN and McCall, we remand for such a determination. The finding of such a relationship is relevant to determine whether service on Jackson South could be imputed to MSN and McCall, pursuant to Rule 1.650(b) of the Florida Rules of Civil Procedure.

Directly relevant to this appeal is the trial court's finding that both the medical expert affidavit and the notice of intent failed to refer to McCall with sufficient specificity.

The Medical Expert Affidavit

The trial court interpreted this court's decision in Largie to require that the medical expert affidavit and notice of intent list either a name, job title, or job description for each prospective defendant. Because the medical expert affidavit in this case references McCall only as a "health care provider" the trial court found it insufficient as a matter of law.⁴ We review an appeal from an order granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Chapter 766, Florida Statutes, was enacted because the Florida Legislature recognized that large medical malpractice recoveries had caused medical malpractice liability insurance premiums to rise, thereby causing medical care costs to patients to increase and making medical malpractice liability insurance unavailable to some doctors. § 766.201(a)-(b), Fla. Stat. (2004). The Legislature specifically found:

The high cost of medical negligence claims in the state can be substantially alleviated by requiring early determination of the merit of claims, by providing for early arbitration of claims, thereby reducing delay and attorney's fees, and by imposing reasonable limitations on damages, while preserving the right of either party to have its case heard by a jury.

§ 766.201(d), Fla. Stat. (2004). Accordingly, the Legislature set forth a detailed procedure for initiating complaints against medical providers arising out of negligence in medical care. Prior to initiating litigation, a plaintiff must mail to the prospective defendants a notice of intent to initiate litigation and a medical expert affidavit. § 766.203(2), Fla. Stat. (2004). The purpose of the notice of intent is to notify the prospective defendants of a potential claim against them, so that they can begin an investigation into their involvement and timely determine whether settling the claim would be appropriate. See Kukral, 679 So.2d at 282 (quoting Stebilla v. Mussallem, 595 So.2d 136, 139 (Fla. 5th DCA 1992)). The...