THOMAS v. The Hosp. Bd. of Dir.S of LEE County
| Decision Date | 17 August 2010 |
| Docket Number | No. 2D08-1671.,2D08-1671. |
| Citation | 41 So.3d 246 |
| Parties | Lucy THOMAS, Individually and as Personal Representative of the Estate of Mildred Thomas, Deceased, Appellant, v. The HOSPITAL BOARD OF DIRECTORS OF LEE COUNTY, d/b/a Lee Memorial Health Systems, Inc.; Kenneth W. Backstrand, M.D.; Kenneth W. Backstrand & Associates, M.D., P.A.; Clara Hughes, R.N.; Jeanie Smith, R.N.; Robert Arnall, M.D.; and Robert McCurdy, P.A., Appellees. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
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William deForest Thompson, Jr., of William deForest Thompson, Jr., P.A., Ft. Myers, for Appellant.
Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, and Douglas B. Lumpkin of Lumpkin & Haskins, P.A., Sarasota, for Appellees Hospital Board of Directors of Lee County, Clara Hughes, Jeanie Smith, Robert Arnall, and Robert McCurdy.
Mark Hicks, Dinah Stein, Brett C. Powell, and Irene Porter of Hicks, Porter, Ebenfeld & Stein, P.A., Miami; and Benito H. Diaz of Benito H. Diaz, P.A., Coral Gables, for Appellees Kenneth W. Backstrand, M.D., and Kenneth W. Backstrand & Associates, M.D., P.A.
Lucy Thomas, individually and as personal representative of the estate of Mildred Thomas, appeals a partial final summary judgment entered in favor of the appellees, the Hospital Board of Directors of Lee County d/b/a as Lee Memorial Health Systems; Kenneth W. Backstrand, M.D.; Kenneth W. Backstrand & Associates, M.D., P.A.; Clara Hughes, R.N.; Jeanie Smith, R.N.; Robert Arnall, M.D.; and Robert McCurdy, P.A. She also appeals the dismissal of her claims for outrage (intentional infliction of emotional distress), mishandling of a dead body, and invasion of privacy, which were raised in prior versions of her complaint, as well as the trial court's order denying her motion for leave to amend the sixth amended complaint to add a claim under 42 U.S.C. § 1983 (1996). We conclude that the trial court erred by dismissing the claim for outrage and by entering the partial final summary judgment on the intentional misrepresentation claim. However, we affirm the dismissals of the claims for mishandling a dead body and invasion of privacy, and we dismiss the portion of the appeal dealing with the denial of Thomas's motion for leave to amend.
On March 6, 1997, Mildred Thomas died at Lee Memorial Hospital after having hip surgery and going into cardiac arrest. Purportedly, following the surgery, Mildred Thomas's heartbeat and blood pressure increased, and Dr. Backstrand and Nurse Hughes injected Mildred Thomas with Esmolol which is commonly used to treat those conditions. However, in doing so, they purportedly gave her a lethal overdose that ultimately led to her going into cardiac arrest. Subsequently, Dr. Backstrand, Nurse Hughes, and Nurse Smith purportedly agreed to conceal the real cause of Mildred Thomas's death and to instead notify her family that she died from the "stress of surgery." Dr. Backstrand, Nurse Hughes, and Nurse Smith listed that same cause of death in computer records, in the report to the medical examiner, and in discussions with other physicians. Dr. Arnall, Nurse Jackson, and Mr. McCurdy, the hospital attorney, later learned of Mildred Thomas's real cause of death through the hospital's incident reporting procedure, but they failed to disclose it.
Based on the report listing Mildred Thomas's cause of death as resulting from natural causes, the medical examiner did not conduct a complete autopsy and her body was released to her family for burial in Anniston, Alabama. On March 11, 1997, during Mildred Thomas's funeral, Lucy Thomas received a phone call from Mr. McCurdy and the medical examiner; the medical examiner demanded that Mildred Thomas's body be returned to him immediately for a second autopsy. This demand was made after the medical examiner learned of the real cause of Mildred Thomas's death. After Mildred Thomas's body was returned and the second autopsy conducted, the medical examiner attributed her death to Esmolol toxicity. Mildred Thomas was eventually laid to rest on March 15, 1997.
Thereafter, in 1998, Lucy Thomas filed her complaint alleging: (1) wrongful death by medical malpractice against both Dr. Backstrand and Lee Memorial Hospital; (2) breach of contract of care by Lee Memorial Hospital, Dr. Backstrand, and Nurse Hughes; (3) mishandling of a dead body; (4) outrage (intentional infliction of emotional distress); (5) invasion of privacy; and (6) intentional misrepresentation. In her claims for medical malpractice and breach of contract, Lucy Thomas sought damages for medical expenses, lost earnings or net accumulations, and lost support and services. Additionally, in all of the claims, she prayed for damages for funeral and burial expenses, mental and emotional pain and suffering, physical pain and suffering, lost support and services, and lost companionship, guidance, and advice (nonpecuniary damages).
The complaint was amended several times, but for purposes of this appeal, only the third amended complaint and the amended complaints which followed are relevant. After Lucy Thomas filed the third amended complaint, Lee Memorial Hospital and Dr. Backstrand moved to dismiss and strike various allegations of that third amended complaint for failure to comport with pleading rules and for failure to state a cause of action. In December 2000, the trial court entered an order dismissing the third amended complaint. Specifically, the trial court determined that while Lucy Thomas could amend the claims for medical malpractice and intentional misrepresentation, her claims of breach of contract, mishandling of a dead body, outrage (intentional infliction of emotional distress), and invasion of privacy failed to state a cause of action; those claims were dismissed with prejudice.
Lucy Thomas then filed a fourth amended complaint, this time alleging only three claims: two claims of medical malpractice and one claim of intentional misrepresentation and intentional infliction of emotional distress. Lucy Thomas made the same prayer for damages in the fourth amended complaint as she had in the prior complaints. Dr. Backstrand and Lee Memorial Hospital filed motions to dismiss and to strike various allegations, including the prayers for damages for mental and emotional pain and suffering. They also filed motions for partial summary judgment arguing that Lucy Thomas could not recover damages for mental and emotional pain and suffering or lost companionship, guidance, and advice on the medical malpractice claims because all of Mildred Thomas's surviving children were adults who were precluded under section 768.21(8), Florida Statutes (1997), from seeking such damages in a wrongful death suit. The trial court then entered an order granting the motions to dismiss/strike in part and denying them in part. Specifically, the trial court struck the portions of the intentional misrepresentation claim which alleged intentional infliction of emotional distress on the basis that the court had previously dismissed the outrage claim with prejudice. And while the trial court dismissed the remaining portions of the intentional misrepresentation claim, it did so without prejudice so that Lucy Thomas could more adequately plead that claim. As to all of the claims, the trial court dismissed the prayer for damages relating to mental and emotional pain and suffering and lost companionship, guidance, and advice. In granting the motions for partial summary judgment on the medical malpractice claims, the trial court held that pursuant to section 768.21(8), Lucy Thomas could not recover nonpecuniary damages on behalf of the estate.
A fifth amended complaint soon followed. In that complaint, Lucy Thomas again alleged two counts of medical malpractice and one count of intentional misrepresentation. The intentional misrepresentation claim deleted some, but not all, of the allegations relating to intentional infliction of emotional distress. The fifth amended complaint also included a prayer for the same nonpecuniary damages which had been dismissed in the fourth amended complaint and which had been prohibited by the partial summary judgment. As with the prior amended complaints, Lee Memorial Hospital and Dr. Backstrand filed motions to dismiss or strike various allegations in the fifth amended complaint, arguing that Lucy Thomas was repleading allegations and prayers for damages which had already been dismissed or stricken. Although the trial court ultimately denied the motions to dismiss the claim for intentional misrepresentation, it granted the motions as to the prayer for nonpecuniary damages relating to that claim.
Lucy Thomas then moved to amend the fifth amended complaint to add a prayer for punitive damages and to add a claim for intentional infliction of emotional distress. The trial court granted the motion in part for Lucy Thomas to add a request for punitive damages but denied the motion regarding her request to add a claim for intentional infliction of emotional distress.
Thereafter, Lucy Thomas filed her sixth amended complaint, which asserted two counts of medical malpractice and one count of intentional misrepresentation. As part of her prayer for damages, she again asserted mental and emotional pain and suffering and lost companionship, guidance, and advice. And again, Lee Memorial Hospital and Dr. Backstrand filed motions to dismiss and strike various allegations. The trial court granted the motions in relevant part, dismissing the claims for nonpecuniary damages as they related to the medical malpractice claim against Lee Memorial Hospital only. The trial court denied the motions as they pertained to any of the allegations in the intentional misrepresentation claim.
In December 2004, Lee Memorial Hospital and Dr. Backstrand filed a motion for partial summary judgment, arguing that ...
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