Reyes v. Roush

• Decision Date: 17 October 2012
• Docket Number: No. 2D11–4490.,2D11–4490.
• Citation: 99 So.3d 586
• Parties: Athany REYES, by and through his mother and next best friend, Daisy BARCENAS, and Daisy Barcenas, individually, Appellants, v. Catherine Nguyen ROUSH, M.D., and The Woman's Group, Appellees.
• Court: Florida District Court of Appeals

99 So.3d 586

Athany REYES, by and through his mother and next best friend, Daisy BARCENAS, and Daisy Barcenas, individually, Appellants,
v.
Catherine Nguyen ROUSH, M.D., and The Woman's Group, Appellees.

No. 2D11–4490.

District Court of Appeal of Florida,
Second District.

Oct. 17, 2012.

[99 So.3d 587]

Wayne Johnson of DeCiccio & Johnson, Winter Park, for Appellants.

Mindy McLaughlin and Gabrielle S. Osborne of Beytin, McLaughlin, McLaughlin, Bolin & Willers, P.A., Tampa, for Appellees.

CASANUEVA, Judge.

Daisy Barcenas gave birth to Athany Reyes on May 25, 2005. At his birth, Athany appeared to have limited use of one of his arms, possibly a shoulder dystocia which may be caused by an injury to the brachial plexus nerve during birth.

[99 So.3d 588]

Dr. Catherine Nguyen Roush was the attending obstetrician. Athany underwent several years of physical therapy but by February 13, 2009, it appeared that continued therapy would never completely resolve the problem. Ms. Barcenas at that time consulted a specialist who told her that surgery was a possibility to attempt to restore full use of his arm. She was also told at that time that Athany's injury might have been caused by medical negligence. Based on this information, on February 7, 2011, she filed a lawsuit against Dr. Roush and her practice, The Woman's Group (hereinafter Dr. Roush). In response, Dr. Roush contended that the suit was barred by the statute of limitations and filed two motions to dismiss the complaint. The trial court granted the motions and dismissed the suit. Ms. Barcenas timely appealed the dismissal of the complaint. Because of the procedural posture of the case, we must reverse.

Procedural History

A few months after Athany's birth in 2005, Ms. Barcenas contacted a law firm that specialized in representing plaintiffs in medical malpractice actions. This law firm then instituted the statutorily required presuit investigation process. After reviewing the obstetrical records, the law firm advised Ms. Barcenas that it appeared to them that Dr. Roush had not deviated from the prevailing standard of care in delivering Athany. No further legal proceedings were instituted until 2011.

When served with Ms. Barcenas' complaint in 2011, Dr. Roush twice moved to dismiss. In her first motion, she argued that either the complaint or paragraph eleven of the complaint was an improper pleading and subject to dismissal for failure to state a cause of action. Paragraph eleven of the complaint alleged: “Plaintiff did not become aware or discover that a claim for malpractice arose until February 13, 2009.” Dr. Roush contended that this was an improper conclusion, one not supported by any ultimate fact, and, more importantly, an incorrect legal standard regarding the application of the statute of limitations.

Dr. Roush's second motion for dismissal claimed that the complaint was a sham pleading. She attached documents to this second motion seeking to establish that Ms. Barcenas had consulted a medical malpractice firm in 2005 to start a presuit investigatory process. These documents established, she argued, that paragraph eleven's claim that Ms. Barcenas did not discover her cause of action until 2009 did not comport with the fact that Ms. Barcenas had started a presuit investigatory procedure in 2005, which fact showed that she suspected medical negligence shortly after Athany's birth. Thus, Dr. Roush concluded, the complaint was a sham pleading because it sought to revive a medical malpractice claim precluded by the appropriate statute of limitations.

In her affidavit opposing the motion to dismiss, Ms. Barcenas declared that at Athany's birth Dr. Roush told her that Athany's arm injury would be fine and would go away in a few months; that she believed the doctor; that at the time of Athany's birth she did not know what a brachial plexus injury was; that for the first time in February 2009, following an MRI, she learned that the injury to Athany could be caused by medical malpractice; and that at that point she contacted an attorney. At the time of the MRI, Athany was not quite four years old.

Issues on Appeal

Ms. Barcenas presents three issues for our review. First, she claims that the trial court erred in dismissing the complaint because Athany had not yet reached his eighth birthday, citing

[99 So.3d 589]

section 95.11(4)(b), Florida Statutes (2011).¹ We decline to address this issue because it was not the basis for dismissal.² In her second issue, she claims that the dismissal was error because the trial court relied on facts outside the four corners of the complaint.³ Third, she claims the trial court erred in concluding the complaint was a sham pleading without the benefit of an evidentiary hearing. Our discussion of these last two issues can be combined.

Standard of Review

Because whether to dismiss a complaint is a pure question of law, we give no deference to the trial court's findings. “This court reviews an order granting a motion to dismiss de novo.” Swope Rodante, P.A. v. Harmon, 85 So.3d 508, 509 (Fla. 2d DCA 2012).

“A motion to dismiss tests the legal sufficiency of a complaint to state a cause of action and is not intended to determine issues of ultimate fact.” Roberts v. Children's Med. Servs., 751 So.2d 672, 673 (Fla. 2d DCA 2000). And, on a motion to dismiss, “ ‘the trial court is limited to consideration of the allegations contained within the four corners of the complaint.’ ” Swope Rodante, 85 So.3d at 509 (quoting Al–Hakim v. Holder, 787 So.2d 939, 941 (Fla. 2d DCA 2001)).

Discussion

We focus, as did Dr. Roush's motions to dismiss, on paragraph eleven of the complaint. Paragraph eleven stated that the plaintiff did not become aware or discover until February 13, 2009, that she had a claim for medical malpractice. Dr. Roush first contended that paragraph eleven did not plead an ultimate fact as required but was instead an impermissible legal conclusion and thus failed to state a cause of action. And, based on the knowledge that Ms. Barcenas had consulted with a medical malpractice plaintiffs' law firm shortly after Athany's birth in 2005, Dr. Roush next contended that paragraph eleven evidenced that the 2011 complaint was a sham because the statute of limitations had run.

We turn first to the dismissal based on the grant of Dr. Roush's motion to dismiss for failure to state a cause of action. Because the trial court on a motion to dismiss was not allowed to determine the veracity of paragraph eleven, it was restricted to consider whether paragraph eleven was properly pleaded. See Roberts, 751 So.2d at 673. But the trial court's order of dismissal does not contain its reasoning on this point; it merely states that the motion was granted. Had the trial court concluded that paragraph eleven did constitute an improper pleading

[99 So.3d 590]

because of the absence of ultimate facts—and because this was the first complaint filed—the trial court ought to have dismissed the complaint without prejudice or with leave to amend. See Moore v. Liberty Mut. Ins. Co., 988 So.2d 1285 (Fla. 2d DCA 2008); see also Laurencio v. Deutsche Bank Nat'l Trust Co., 65 So.3d 1190 (Fla. 2d DCA 2011). Ultimately, it may be established that amendment will be futile. But at this stage of the proceeding, public policy favors the liberal amendment of pleadings. See Laurencio, 65 So.3d at 1193. However, our reversal is not based solely on the trial court's failure to grant leave to amend the complaint.

We further determine that the trial court erred in finding that the complaint was a sham pleading as Dr. Roush's second motion to dismiss claimed, citing Florida Rule of Civil Procedure...