Vause v. Bay Medical Center

• Decision Date: 30 December 1996
• Docket Number: No. 94-549,94-549
• Citation: 687 So.2d 258
• Parties: 22 Fla. L. Weekly D94 Harley L. VAUSE, Individually, and as Personal Representative of the Estate of Joyce L. Vause, Deceased, Appellant, v. BAY MEDICAL CENTER, Douglas L. Stringer, M.D., Panama City Neurosurgical Associates, P.A., John Taylor, Individually, and Patrick Bowman, Individually, Appellees.
• Court: Florida District Court of Appeals

Page 258

687 So.2d 258

22 Fla. L. Weekly D94

Harley L. VAUSE, Individually, and as Personal Representative of the Estate of Joyce L. Vause, Deceased, Appellant, v. BAY MEDICAL CENTER, Douglas L. Stringer, M.D., Panama City Neurosurgical Associates, P.A., John Taylor, Individually, and Patrick Bowman, Individually, Appellees.

No. 94-549.

District Court of Appeal of Florida First District.

Dec. 30, 1996.

Rehearing Denied Feb. 17, 1997.

Sidney L. Matthew of Gorman & Matthew, P.A., Tallahassee, for appellant.

G. Bruce Hill and William W. Large of Adams, Hill, Reis, Adams, Hall & Schieffelin, Orlando, for appellees, Bay Medical Center, John Taylor, and Patrick Bowman.

Richard B. Collins and C. Timothy Gray of Collins and Truett, P.A., Tallahassee, for appellees, Douglas L. Stringer, M.D., and Panama City Neurosurgical Associates, P.A.

EN BANC OPINION ON MOTION FOR REHEARING

WOLF, Judge.

We grant appellees' motion for rehearing, withdraw the opinion issued in this case on October 27, 1995, and substitute the following opinion in its place. The appellant/plaintiff challenges the trial court's dismissal with prejudice of his complaint seeking damages for the wrongful death of his wife. We affirm the trial court's decision in part and reverse in part.

The plaintiff filed an 18-count complaint seeking damages for the wrongful death of his wife, 52-year-old Joyce L. Vause. The complaint alleges that on July 21, 1991, Joyce Vause, a nurse employed by Bay Medical Center (BMC), accompanied a patient inside BMC's hyperbaric chamber. According to the complaint, BMC and its administrators had actual knowledge that there was no competent technical staff operating the chamber, and there was no competent director in charge of the department. The complaint alleges that grossly negligent errors were committed both during the simulated dive and after Vause exited the chamber, at which time staff failed to diagnose Vause's obvious signs of decompression sickness. At 11:30 a.m., approximately two hours after exiting the chamber, Joyce Vause died from nitrogen embolization due to decompression sickness.

In addition to BMC itself, the complaint individually names John Taylor, Patrick Bowman, and Dr. Douglas Stringer, as defendants. ¹ The complaint alleges that defendant Dr. Douglas Stringer was codirector of the hyperbaric center, that defendant Patrick Bowman was the operator of the hyperbaric chamber, and that defendant John Taylor was the administrator of the Bay Medical Center. The complaint in pertinent part describes the duties and responsibilities of the parties at the Bay Medical Center (BMC) as follows:

12. At all times material hereto, BAY MEDICAL CENTER'S Hyperbaric Medicine Department was separated from other departments, works, and missions of the Hospital. The activities of the Hyperbaric Medicine Department included the treatment of decompression sickness. Decompression sickness can result from the formation of nitrogen bubbles in the blood or body tissue due to changes of atmospheric pressure. Often the condition is suffered by scuba divers who ascend too quickly at the conclusion of a dive or stay under water too long without properly ascending to the surface.

13. A hyperbaric chamber is an artificial environment which is used to cure decompression sickness. The hyperbaric chamber is a cylindrical metal tank. A scuba diver with decompression sickness (commonly referred to as the "bends") is placed inside the chamber during the treatment process. It is also routine for a registered nurse to also get inside the chamber with the patient during the treatment process to administer medication or provide other necessary assistance to the patient. The chamber operators specially trained in hyperbaric chamber operations remain outside the hyperbaric chamber and have exclusive control over the atmospheric condition inside the chamber. During the treatment process, the chamber operators regulate the atmospheric pressure inside the chamber under a calculated process and also provide specific mixtures of gases to each person inside the chamber during a simulated "dive." It is required after a "dive" to ensure that neither the patient nor nurse (tender) have untreated decompression sickness.

14. The medical director of the hyperbaric chamber establishes the procedures and administers the manner in which the chamber operators regulate the conditions inside the hyperbaric chamber to the patient and the attending nurse. The medical director and the BAY MEDICAL CENTER hospital administrator also has a duty to ensure that only competent properly trained and properly skilled persons participate as chamber operators when the hyperbaric chamber is being used. The medical director of the hyperbaric chamber has a duty to refuse to treat any person with decompression sickness in the hyperbaric chamber if there are not competent, skilled, and properly trained chamber operators available to operate the chamber at any given time.

15. The attending physician has a duty to evaluate any person with decompression sickness (the "bends") and to prescribe the particular procedure and protocol to be followed by the chamber operators in treating a person with the "bends." The particular procedures and protocol followed by the chamber operator are under the exclusive control of the attending physician, and the chamber operators are under a duty to follow the exact procedures and protocol established by the attending physician during any particular treatment of a person.

16. Since 1984, JOYCE L. VAUSE, R.N., was a registered nurse employed by BAY MEDICAL CENTER and assigned primarily to full-time duties in the Hospital's Obstetric Department. The Obstetric Department is unrelated to the Hyperbaric Medicine Department at BAY MEDICAL CENTER. Since 1988, JOYCE L. VAUSE, R.N., worked part-time as an on-call nurse in the BAY MEDICAL CENTER Hyperbaric Department. The representative, agents, and employees of BAY MEDICAL CENTER who committed the acts of gross negligence complained of herein which caused the death of JOYCE L. VAUSE, R.N., were operating in the furtherance of the business of BAY MEDICAL CENTER, but were assigned primarily to unrelated works to that of JOYCE L. VAUSE, R.N.

The defendants filed motions to dismiss the complaint on various grounds, including sovereign immunity and the employer's tort immunity under section 440.11, Florida Statutes, as well as the plaintiff's election of a workers' compensation remedy. The trial court dismissed the complaint with prejudice, without explaining the basis for its ruling.

The dismissal was improper to the extent that it was based upon the plaintiff's having elected a workers' compensation remedy. Election of remedies is an affirmative defense that is not properly raised by means of a motion to dismiss where the affirmative defense does not appear on the face of the prior pleading. Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla. 2d DCA 1975). See also Harold Silver, P.A. v. Farmers Bank & Trust Co., 498 So.2d 984 (Fla. 1st DCA 1986). If the court is required to consider matters outside the four corners of the complaint, then the cause is not subject to dismissal on the basis of the affirmative defense. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253 (Fla. 2d DCA 1994); Board of County Commissioners of Polk County, Fla. v. Aetna Casualty and Surety Co., 604 So.2d 850 (Fla. 2d DCA 1992), rev. denied, 613 So.2d 2 (Fla.1993); Attias v. Faroy Realty Co., 609 So.2d 105 (Fla. 3d DCA 1992). Even a relatively straightforward affirmative defense, such as one based upon the statute of limitations, is not a basis for dismissal unless the complaint affirmatively and clearly shows the conclusive applicability of the defense. Alexander Hamilton Corp. v. Leeson, 508 So.2d 513 (Fla. 4th DCA 1987); see Hett v. Madison Mut. Ins. Co., 621 So.2d 764 (Fla. 2d DCA 1993); rev. dismissed, 632 So.2d 1026 (Fla.), cert. denied, 511 U.S. 1133, 114 S.Ct. 2147, 128 L.Ed.2d 874 (1994). The plaintiff's complaint does not clearly show the applicability of the defense. Indeed, nowhere in the complaint is it asserted or suggested that the plaintiff pursued a workers' compensation remedy to a determination on the merits or to final settlement so as to give rise to an election of remedies defense. See Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA), rev. denied, 659 So.2d 1087 (Fla.1995). Consequently, the defense could not have been the basis for dismissal of the complaint against any of the defendants.

It is not disputed that BMC is a public hospital vested with sovereign immunity; therefore, BMC is not liable for the willful, wanton, or malicious conduct of its employees. See § 768.28(9)(a), Fla.Stat. (1991); Gonzalez v. Metropolitan Dade County Public Health Trust, 651 So.2d 673, 676 (Fla.1995); Elliott v. Dugger, 579 So.2d 827 (Fla. 1st DCA), rev. denied, 591 So.2d 181 (Fla.1991). Appellant, however, asserts that in accordance with the decision in Holmes County School Bd. v. Duffell, 651 So.2d 1176 (Fla.1995), BMC as a public entity can be sued for the negligent act of its employees, notwithstanding the broad immunity from suit granted to employers and coemployees of workers who are injured on the job and who are entitled to workers' compensation benefits. Although in Holmes, the court recognizes that under section 440.11(1), Florida Statutes, a public employer could be liable if an injury occurred as a result of the negligence of a coemployee "assigned primarily to unrelated works," appellant cites no case nor law which would support his position that an obstetrical nurse who works regularly, albeit on a part-time basis in another department providing health care, is engaged in work unrelated to that of the hospital supervisor, the departmental supervisor, or the operator of the machine which is utilized to provide care for the patient whom the nurse is attending.

Section 440.11(1),...