St. Joseph's Hosp., Inc. v. Doe, Case No. 2D16–2122

• Decision Date: 13 January 2017
• Docket Number: Case No. 2D16–2122
• Citation: 208 So.3d 1200
• Parties: ST. JOSEPH'S HOSPITAL, INC., Petitioner, v. Jane DOE, Respondent.
• Court: Florida District Court of Appeals

208 So.3d 1200

ST. JOSEPH'S HOSPITAL, INC., Petitioner,

v.Jane DOE, Respondent.

Case No. 2D16–2122

District Court of Appeal of Florida, Second District.

Opinion filed January 13, 2017

H. Hamilton Rice, III, and Katherine M. Benson of Bush Graziano Rice & Platter, P.A., Tampa, for Petitioner.

Jennifer Erin Jones and John R. Hightower, Jr., of McIntyre, Thanasides, Bringgold, Elliott, Grimaldi & Guito, P.A., Tampa, for Respondent.

SLEET, Judge.

St. Joseph's Hospital seeks certiorari review of the trial court's order denying its motion for summary judgment in Jane Doe's action against St. Joseph's. Ms. Doe's lawsuit stems from her allegation that she was sexually assaulted by a hospital employee while she was a patient in the hospital's mental health care facility. In its motion for summary judgment, St. Joseph's argued that Ms. Doe's claims sounded in medical negligence and that therefore she was required to adhere to the presuit notice requirements set forth in chapter 766, Florida Statutes (2010), which undisputedly she did not do. Because we conclude that count two of Ms. Doe's complaint was indeed a claim for medical negligence, we grant the petition as to that count only and deny the petition as to count one of the complaint.

In order to be entitled to certiorari relief, "[a] petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal." Parkway Bank v. Fort Myers Armature Works, Inc. , 658 So.2d 646, 648 (Fla. 2d DCA 1995). The latter two jurisdictional prongs of this standard are satisfied as "[t]he statutes requiring presuit notice and screening ‘cannot be meaningfully enforced postjudgment because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance.’ " Fassy v. Crowley , 884 So.2d 359, 363 (Fla. 2d DCA 2004) (quoting Parkway Bank , 658 So.2d at 649 ). Accordingly, "for certiorari relief to be granted, the trial court's order must depart from the essential requirements of the law." GalenCare, Inc. v. Mosley , 59 So.3d 138, 140 (Fla. 2d DCA 2011).

Here, St. Joseph's argued in its petition for writ of certiorari that the trial court departed from the essential requirements of law by determining that the allegations in Ms. Doe's complaint did not amount to medical negligence. Section 766.202(7) defines "medical negligence" as "medical malpractice, whether grounded in tort or in contract," and section 766.106(1)(a) defines a claim for medical malpractice as "a claim, arising out of the rendering of, or the failure to render, medical care or services." Thus, the "key inquiry" in determining if a claim is one for medical malpractice under chapter 766 is "whether the action aris[es] out of any medical, dental, or surgical diagnosis, treatment, or care." Fassy , 884 So.2d at 364 (alteration in original) (quoting J.B. v. Sacred Heart Hosp. of Pensacola , 635 So.2d 945, 947 (Fla. 1994) ).

In her complaint, Ms. Doe alleged that while she was a mental health patient at St. Joseph's, a mental health technician employed by the hospital sexually assaulted her in her room. She further alleged that when she reported the incident to hospital officials, they tried to intimidate her and failed to investigate the allegation. Specifically, count one of the complaint was for negligence and alleged in part as follows:

14. At all times material hereto, St. Joseph's was aware, or should have been aware, of the prevalence of sexual assaults of patients by hospital employees and the high risk of such assaults of patients by hospital employees and the high risk of such assaults occurring, especially in mental health care facilities.

15. St. Joseph's had a duty to exercise reasonable care to protect Ms. Doe from reasonably foreseeable sexual assaults by its employees, and to ensure her safety and well-being while in St. Joseph's custody and care.

16. St. Joseph's breached its duty of care to Ms. Doe by failing to exercise reasonable care to prevent Ms. Doe from being sexually assaulted. Ms. Doe's attacker was able to enter and exit Ms. Doe's room repeatedly on the evening of the assault and engage in highly suspicious activity in the common areas before the assault. Reasonable care required St. Joseph's to adopt and employ procedures to identify suspicious behavior to prevent forthcoming attacks.

It is clear that the allegations in count one do not "aris[e] out of any medical, dental, or surgical diagnosis, treatment, or care." See id. (quoting J.B. , 635 So.2d at 947 ). Ms. Doe alleged that St. Joseph's did not protect her from a sexual assault by its employee, who was able to enter and exit her room several times at night without supervision. Nothing about these allegations concerning negligent supervision and negligent security involved medical care or services. As such, the trial court did not depart from the essential requirements of law by denying St. Joseph's motion for summary judgment as to count one.

But in count two of her complaint, Ms. Doe alleged violations of section 766.110, which is entitled "Liability of healthcare facilities":

20. At all times material hereto, St. Joseph's was a health care facility as defined in [c]hapter 395 of Florida Statutes.

21. In addition to its common law duties, St. Joseph's had separate duties pursuant to Florida Statutes, [section] 766.110 to provide risk management and assure the competence of its personnel, through the adoption of a comprehensive risk management program in compliance with [section] 395.0197, Florida Statutes, and through the diligent administration of the procedures and risk management processes, including the supervision of personnel.

22. Pursuant to Florida Statutes, [section] 395.0197, St. Joseph's is responsible for investigating and reporting any allegation of sexual misconduct by an employee on St. Joseph's grounds. St. Joseph's failed to fulfill this obligation after the sexual assault was reported to hospital authorities.

23. St. Joseph's breached its obligation to diligently administer its procedures, to supervise and monitor its hospital personnel, and to investigate and report Ms. Doe's allegations of sexual abuse.

Section 766.110(1) states that

[

...