Filed: Jan. 06, 2017
Latest Update: Mar. 03, 2020
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ST. JOSEPH'S HOSPITAL, INC., ) ) Petitioner, ) ) v. ) Case No. 2D16-2122 ) JANE DOE, ) ) Respondent. ) ) Opinion filed January 13, 2017. Petition for Writ of Certiorari to the Circuit Court for Hillsborough County, Mark R. Wolfe, Judge. H. Hamilton Rice, III, and Katherine M. Benson of Bush Graziano Rice & Platter, P.A., Tampa, for Petitioner. Jennifer Erin J
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ST. JOSEPH'S HOSPITAL, INC., ) ) Petitioner, ) ) v. ) Case No. 2D16-2122 ) JANE DOE, ) ) Respondent. ) ) Opinion filed January 13, 2017. Petition for Writ of Certiorari to the Circuit Court for Hillsborough County, Mark R. Wolfe, Judge. H. Hamilton Rice, III, and Katherine M. Benson of Bush Graziano Rice & Platter, P.A., Tampa, for Petitioner. Jennifer Erin Jo..
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ST. JOSEPH'S HOSPITAL, INC., )
)
Petitioner, )
)
v. ) Case No. 2D16-2122
)
JANE DOE, )
)
Respondent. )
)
Opinion filed January 13, 2017.
Petition for Writ of Certiorari to the Circuit
Court for Hillsborough County, Mark R.
Wolfe, Judge.
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
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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
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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
[a]ll health care facilities, including hospitals and ambulatory
surgical centers, as defined in chapter 395, have a duty to
assure comprehensive risk management and the
competence of their medical staff and personnel through
careful selection and review, and are liable for a failure to
exercise due care in fulfilling these duties.
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The statute further requires that all health care facilities (1) adopt "written procedures for
the selection of staff members and a periodic review of the medical care and treatment
rendered to patients by each member of the medical staff," (2) adopt "a comprehensive
risk management program which fully complies with the substantive requirements of s.
395.0197," and (3) initiate and administer these "medical review and risk management
processes . . . including the supervision of the medical staff and hospital personnel to
the extent necessary to ensure that such medical review and risk management
processes are being diligently carried out." § 766.110(1)(a)-(c).
Ms. Doe specifically alleged in count two of her complaint that St. Joseph's
violated the requirement of section 766.110 that it have and comply with a
comprehensive risk management program pursuant to section 395.0197, Florida
Statutes (2010). Chapter 395 is entitled "Hospital Licensing and Regulation," and
section 395.0197 provides in pertinent part as follows:
(1) Every licensed facility shall, as a part of its administrative
functions, establish an internal risk management program
that includes all of the following components:
(a) The investigation and analysis of the frequency and
causes of general categories and specific types of adverse
incidents to patients.
(b) The development of appropriate measures to minimize
the risk of adverse incidents to patients . . . .
....
(c) The analysis of patient grievances that relate to patient
care and the quality of medical services.
(d) A system for informing a patient or an individual identified
pursuant to s. 765.401(1) that the patient was the subject of
an adverse incident, as defined in subsection (5). Such
notice shall be given by an appropriately trained person
designated by the licensed facility as soon as practicable to
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allow the patient an opportunity to minimize damage or
injury.
(e) The development and implementation of an incident
reporting system based upon the affirmative duty of all
health care providers and all agents and employees of the
licensed health care facility to report adverse incidents to the
risk manager, or to his or her designee, within 3 business
days after their occurrence.
(Emphasis added.)
By the statute's plain language, a section 395.0197 internal risk
management program pertains to "adverse incidents" in hospitals and healthcare
facilities. Section 395.0197(5) defines "adverse incident" as "an event over which
health care personnel could exercise control and which is associated in whole or in part
with medical intervention." (Emphasis added.)
Based on this language, any claim pleaded under section 395.0197 is
necessarily a medical negligence claim because that section only requires hospitals and
healthcare facilities to investigate "adverse incidents," which by definition are
"associated in whole or in part with medical intervention," § 395.0197(5), and therefore
necessarily "aris[e] out of . . . medical, dental, or surgical diagnosis, treatment, or care,"
see Fassy, 884 So. 2d at 364 (quoting
J.B., 635 So. 2d at 947). Ms. Doe simply cannot
plead count two under sections 766.110 and 395.0197 and allege a violation of a
statutory duty to institute and maintain a risk management program concerning adverse
incidents associated with medical intervention without complying with the presuit notice
requirements of chapter 766. Furthermore, we note that in this case her specific
allegations of sexual assault do not meet the statutory definition of an "adverse
incident."
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We therefore conclude that the trial court departed from the essential
requirements of law by denying St. Joseph's motion for summary judgment as to count
two only. We thus grant the petition in part, deny it in part, and quash only the portion of
the trial court's order that denied summary judgment as to count two.
Granted in part; denied in part.
WALLACE and SALARIO, JJ, Concur.
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