Townes v. Nat'l Deaf Acad., LLC
| Decision Date | 19 February 2016 |
| Docket Number | Case No. 5D14-904 |
| Parties | DENISE TOWNES, AS POWER OF ATTORNEY, ET AL., Appellants, v. THE NATIONAL DEAF ACADEMY, LLC, ETC., Appellee. |
| Court | Florida District Court of Appeals |
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
CORRECTED
Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge.
Nicholas A. Shannin and Pamela R. Masters, of Shannin Law Firm, P.A., Orlando, and Michael J. Brevda, of Domnick Law, Palm Beach Gardens, for Appellants.
Mark Hicks, Mary Gniadek, and Shannon Debus-Horn, of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Julie W. Allison, of Julie W. Allison, P.A., Miami, for Appellee.
Denise Townes, individually, and on behalf of her niece, Cinnette Perry ("Perry"), a minor, ("Appellants") appeal the trial court's entry of final summary judgment in favor of the National Deaf Academy, LLC ("NDA"). About one month after her admission to NDA, Perry was throwing rocks at staff members and windows. In an effort to control her behavior, staff members employed a specific physical restraint method. As she was forced to the ground, Perry's leg was injured and ultimately required amputation. For the reasons discussed below, we affirm in part and reverse in part.
On July 17, 2008, Perry was admitted to NDA following an acute psychiatric inpatient admission at another facility. NDA operates as both a school and a residential treatment facility, licensed pursuant to Chapter 394, Florida Statutes (2008), for deaf, hard of hearing, and autistic individuals suffering from psychiatric and behavioral disorders. NDA offers psychiatric, psychological, medical, speech therapy, and educational services to its residents. NDA's staff includes psychiatrists, nurses, teachers, therapists, and sign language interpreters.
Before going to NDA, Perry was diagnosed with bipolar disorder-mixed, intermittent explosive disorder, impulse control disorder not otherwise specified, conduct disorder, and post-traumatic stress disorder. During her admission, an NDA psychiatrist established a plan of care for Perry that included Therapeutic Aggression Control Techniques ("TACT"), which involves staff members physically restraining the resident. Prior to employing a TACT hold, the most senior employee on scene is required to make a determination as to whether the TACT hold is an appropriate method to control the resident.
On August 7, 2008, Danielle Warren, a nurse employed by NDA, received notice that Ms. Perry "eloped off campus." When Perry voluntarily returned to NDA's campus,she began throwing rocks at NDA staff and its buildings, causing several windows to shatter. Perry also pulled on cables, wires, and lightning rods, trying to dislodge them.
After the staff removed the other residents from the area, four NDA staff members attempted to verbally de-escalate the situation. Since Perry was not responding to the verbal de-escalation attempts, Nurse Warren made the decision to perform a TACT protective hold. After Nurse Warren called Dr. Karen Goldberg, NDA's Associate Medical Director, the staff attempted to employ a TACT hold. The attempt was unsuccessful as Perry was agitated. According to Nurse Warren, Perry positioned her toe down into where "the dirt meets the concrete" and then wrapped her leg around Nurse John Barclay, causing both to fall. As she fell, Perry sustained an injury to her leg, which the staff believed to be a dislocated knee. While they were waiting for the paramedics, NDA staff conducted a full physical assessment of Perry and, pursuant to Dr. Goldberg's recommendation, gave Perry her previously prescribed medication. According to Nurse Barclay, Perry had a defined pulse in the affected leg. Approximately twenty minutes later, the ambulance arrived and took Perry to Florida Hospital.
On August 9, 2008, as a result of the injury sustained during the attempted TACT protective hold, Perry underwent a left above-the-knee leg amputation. Her preoperative diagnoses were nonviable left leg after knee injury, popliteal artery disruption, and compartment syndrome.
Appellants' current attorneys, their third legal team, filed the original complaint against NDA on April 23, 2012. Counts I and II of the original complaint alleged thatNDA, through its employees and agents, negligently injured Perry by: failing to properly care for her, failing to recognize that NDA was unable to care for her, failing to send her to a higher level care facility, failing to maintain control over her, failing to implement necessary safety precautions, failing to prevent injuries to her, forcefully throwing her onto the floor, forcefully restraining her on the floor, failing to recognize that she sustained a serious leg injury, failing to obtain proper medical care for her, failing to provide reasonable care to her, and failing to act reasonably under the circumstances.
NDA filed a motion to dismiss the complaint with prejudice, asserting that Appellants failed to comply with the medical malpractice presuit requirements of Chapter 766, Florida Statutes (2008), before the applicable two-year statute of limitations had expired. Appellants were allowed to conduct limited discovery, focused on whether the TACT hold was employed by non-medical as well as medical NDA staff members. After certain depositions were completed, NDA renewed its motion to dismiss the original complaint, and also filed an alternative motion for final summary judgment.
Shortly before the hearing on NDA's motions, Appellants filed an amended complaint adding four new causes of action. As in the original complaint, Counts I and II of the amended complaint asserted general negligence claims. Counts III and IV of the amended complaint asserted "alternative" medical malpractice claims based upon the same factual allegations contained in Counts I and II. Counts V and VI of the amended complaint asserted that NDA was liable based upon its alleged violations of the Florida Mental Health Act, also known as the Baker Act, Chapter 394, Florida Statutes (2008). In Counts V and VI, Appellants claimed that NDA failed to providePerry with the least restrictive appropriate care; failed to provide her with skillful, safe, and humane mental health services; and otherwise failed to comply with the requirements of the Baker Act. The trial court entered its order granting NDA's motion and entered final summary judgment against Appellants on all claims asserted in the amended complaint.
The "standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party." Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) (citing Walsingham v. Dockery, 671 So. 2d 166 (Fla. 1st DCA 1996)). "If the slightest doubt exists, then summary judgment must be reversed." Id. (citing Hancock v. Dep't of Corr., 585 So. 2d 1068 (Fla. 1st DCA 1991)). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) (citing Menendez v. The Palms W. Condo. Ass'n, 736 So. 2d 58 (Fla. 1st DCA 1999)). "If the evidence raises any issue of material fact, if it is conflicting, if it will permit reasonable inferences, or if tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it." Schneider v. City of Jacksonville, 933 So. 2d 601, 602 (Fla. 1st DCA 2006) (quoting Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985)).
The trial court agreed with NDA's position that the use of the TACT hold arose out of rendering medical care and services to Perry; therefore, it found that Counts I and II of the amended complaint alleged medical malpractice claims. Summary judgmentwas granted in favor of NDA on those two counts because the trial court found that the statute of limitations had expired and Appellants had not complied with the presuit medical malpractice notification requirements.
Section 766.106, Florida Statutes (2008), "imposes presuit requirements on a claim for medical negligence or malpractice." Joseph v. Univ. Behavioral LLC, 71 So. 3d 913, 917 (Fla. 5th DCA 2011). An "action for medical malpractice is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of [healthcare]." Silva v. Sw. Fla. Blood Bank, Inc., 601 So. 2d 1184, 1186 (Fla. 1992) (quoting § 95.11(4)(b), Fla. Stat. (1992)). "In ordinary, common parlance, the average person would understand 'diagnosis, treatment, or care,' to mean ascertaining a patient's medical condition through examination or testing, prescribing and administering a course of action to effect a cure, and meeting the patient's daily needs during the illness." Id. at 1187; see also Buck v. Columbia Hosp. Corp. of S. Broward, 147 So. 3d 604, 606 (Fla. 4th DCA 2014) (). Appellants argue that they were not required to comply with the Chapter 766 presuit requirements because NDA is not a healthcare provider and the TACT protective hold was not medical care or treatment. While NDA concedes that it is not a healthcare provider, it argues that Chapter 766 applies because NDA would be held vicariously liable since itsemployees who administered the TACT protective hold on Perry are healthcare providers under section 766.202(4), Florida Statutes (2008).
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