Southern Baptist Hosp. of Florida v. Ashe

• Decision Date: 08 February 2007
• Docket Number: No. 1D06-3202.,1D06-3202.
• Court: Florida District Court of Appeals
• Parties: SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., Petitioner, v. Ronald E. ASHE, as personal representative for the Estate of Dara Leigh Ashe, Respondent.

948 So.2d 889

SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., Petitioner, v. Ronald E. ASHE, as personal representative for the Estate of Dara Leigh Ashe, Respondent.

No. 1D06-3202.

District Court of Appeal of Florida, First District.

February 8, 2007.

Harvey L. Jay, III, and Travase L. Erickson of Saalfield, Shad, Jay, Lucas & Stokes, P.A., Jacksonville, for Petitioner.

Kenneth B. Wright of Bledsoe, Jacobson, Schmidt & Wright, Jacksonville, for Respondent.

KAHN, J.

By petition for writ of certiorari, Southern Baptist Hospital of Florida argues the trial judge departed from the essential requirements of law when he found respondent's cause of action did not sound in medical malpractice, but instead in ordinary negligence, thus eliminating the necessity that respondent comply with the presuit requirements of chapter 766. See § 766.106(2), Fla. Stat. (2003) (requiring plaintiffs in medical malpractice suits to give notice to all prospective defendants of the intent to pursue litigation). "[Certiorari review] is appropriate when chapter 766 presuit requirements are at issue." Okaloosa County v. Custer, 697 So.2d 1297, 1297 (Fla. 1st DCA 1997). As the trial court did not depart from the essential requirements of law, we deny certiorari.

A court must, on a case-by-case basis, look to the allegations made in the complaint when determining whether a suit raises an issue of ordinary negligence or medical malpractice. See Foshee v. Health Mgmt. Assocs., 675 So.2d 957, 959 (Fla. 5th DCA 1996) ("The allegations of the complaint, which must be taken as true, are what determine the facts. It is up to the court to decide from the allegations in the complaint whether the claim arises `out of the rendering of, or the failure to render, medical care or services.'" (citation omitted)); see also J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 949 (Fla.1994) (looking at the allegations made in complaint and determining it "does not state a medical malpractice claim"); Tenet St. Mary's Inc. v. Serratore, 869 So.2d 729, 731 (Fla. 4th DCA 2004) ("The gravamen of Serratore's complaint for negligence does not arise out of the receiving of medical care nor does it require that Serratore prove [a deviation] from an accepted standard of medical care, which is required under section 766.102(1)."); Garcia v. Psychiatric Insts. of Am., Inc., 693 So.2d 66, 66 (Fla. 5th DCA 1997) ("The requirement of presuit notice is fact dependent, and must be premised upon the allegations of the complaint."); Broadway v. Bay Hosp., Inc., 638 So.2d 176, 177 (Fla. 1st DCA 1994) ("From the face of the complaint, it is apparent that appellants have sued appellee for the failure to warn of a dangerous condition or properly maintain a piece of equipment, rather than for breach of some professional standard of care.").

In the present case, respondent does not challenge any medical diagnosis or decision that required professional skill or judgment. See Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 219 (Fla. 4th DCA 2005) (describing the essence of an action for medical malpractice: "`The alleged wrongful act must be directly related to the improper application of medical services to the patient and the use of professional judgment or skill.'" (quoting Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 322 (Fla. 4th DCA 2002))); see also Jackson v. Biscayne Med. Ctr., Inc., 347 So.2d 721, 722 (Fla. 3d DCA 1977) ("The fact that these acts originate, rather...