Medical Malpractice

_    Torrey v. Leesburg Regional Medical Center, 769 So.2d 1040 (Fla. 2000).

Although the issues in this case arose in the context of a wrongful death claim alleging medical malpractice, such issues are not unique to such cases.

The plaintiff in this wrongful death case was the estate of a deceased patient, who contended that the death was the result of medical malpractice by the defendants.  The presuit notice of intent to initiate a malpractice claim [as required by Section 766.106(2), Florida Statutes] and the complaint filed by the plaintiff were signed by a Michigan attorney who was not licensed to practice law in Florida.  The plaintiff subsequently sought to amend the complaint after a Florida attorney had made an appearance on its behalf, but at that point the defendants argued that the statute of limitations had expired, and that the complaint could not be amended because it was a nullity, not having been signed by a licensed Florida attorney as required by Florida court rules.

The trial court and the lower appellate court both agreed that the pleading signed by the non-Florida attorney was a nullity, and therefore held that the plaintiff’s case should be dismissed.  However, the Florida Supreme Court disagreed.  Although the filing of a complaint or other pleading signed by an attorney not admitted to practice in Florida was contrary to the rules, the court held that the public policy of allowing lawsuits to be determined on their merits rather than on the basis of technicalities required that such pleadings not be totally disregarded, and that the party in whose behalf such a pleading was filed should be allowed a reasonable time in which to procure representation by a Florida-licensed attorney.  The court held that such a right of amendment should be allowed even if the plaintiff would be unable to establish the requirement of “excusable neglect” that is required by the law in order to set aside a default judgment.

 

_  St. Mary’s Hospital, Inc. v. Phillipe, 769 So.2d 961 (Fla. 2000).

This case addressed issues concerning the damages recoverable in a wrongful death action based on allegations of medical malpractice, where the parties have elected to use the voluntary binding-arbitration procedure provided by the Florida statutes.

The Florida statutes governing medical malpractice actions provide a procedure under which the parties may voluntarily agree to submit their dispute to an arbitrator for resolution, and once the parties elect such an option, the decision of the arbitrator is made binding upon the parties, and essentially serves as a substitute for judicial resolution of the dispute.  Such procedure is intended to provide the parties with an alternative that is faster and more economical than a formal trial before a court or jury.  One of the major inducements for medical malpractice defendants to agree to such an alternative is a provision in Section 766.207(7)(b), Florida Statutes, which limits the amount that an arbitrator can award as “non-economic damages” in such proceedings to the sum of $250,000.00 “per incident.”  (Non-economic damages refers to damages a person incurs as a result of an incident which do not involve out-of-pocket expenses such as lost earnings or medical bills incurred.  Common examples of non-economic damages include claims for pain and suffering or loss of enjoyment of life.)

The plaintiffs in this case were the personal representatives of deceased patients whose deaths were allegedly caused by the medical malpractice of the defendants.  Under the Florida wrongful death statute, the personal representative of the estate of a decedent is responsible for bringing a single wrongful death action on behalf of all the beneficiaries of the estate who are permitted to recover under the terms of the Wrongful Death Act.  The plaintiff/personal representatives in this case sued on behalf of all the beneficiaries, elected to employ the optional procedure for binding arbitration, and then obtained arbitration awards that included total “non-economic” damage awards in excess of $250,000.00, including the awards in favor of all the beneficiaries (although none of the beneficiaries was awarded an individual recovery for non-economic damages in excess of $250,000.00).

The defendants argued on appeal that the statutory limit of $250,000.00 “per incident” placed an overall limit of that amount on all non-economic damage awards in favor of any beneficiary entitled to recover for the same decedent’s death.  However, the Supreme Court rejected this argument, holding that each individual beneficiary had a separate claim for wrongful death, although the personal representative was designated by law with the responsibility for prosecuting all such claims.  The court therefore held that each individual claimant was entitled to recover up to $250,000.00 in non-economic damages.  It based this holding on its interpretation of the statutory language, the legislative history of the statute, and the desire to avoid any equal protection challenges that might be brought to the validity of the statute if it were construed to impose an overall cap of $250,000.00 on the amounts that could be awarded to all beneficiaries as non-economic damages.

The court also considered an issue concerning the types of damages that could be recovered as “economic damages” in a wrongful death/medical malpractice action where the parties had elected to use the optional procedure for voluntary binding arbitration.  The Wrongful Death Act restricts the types of economic damages that can be recovered in such cases to certain specified types (primarily medical and funeral bills, and the loss of the decedent’s services), whereas the medical malpractice statute authorizes recovery of a wider range of economic damages (specifically including loss of earnings).  The court held that in cases of wrongful death claims based on alleged medical malpractice, and where the parties opt to employ the voluntary binding arbitration procedure, the broader definition of recoverable economic damages contained in the medical malpractice statute was controlling.

_     Mizrahi v. North Miami Medical Center, Ltd., 761 So.2d 1040 (Fla. 2000).

This case upheld the constitutionality of Section 768.21(8), Florida Statutes, which prohibits recovery of non-economic damages by adult children of the decedent in wrongful death actions based upon allegations of medical malpractice, even though the same class of survivors is entitled to recover the same type of damages in wrongful death claims where the alleged negligence of the defendant did not involve medical malpractice.

The plaintiffs in these wrongful death actions were the personal representatives of the estates of decedents whose deaths were allegedly attributable to acts of medical malpractice committed by the defendants.  The decedents in both cases were unmarried at the time of death, and survived only by adult children.  In defense of the plaintiffs’ claims for non-economic damages (i.e., pain and suffering) sustained by the adult children due to their parents’ deaths, the defendants relied on Section 768.21(8), Florida Statutes.  This statute, while generally authorizing recovery of non-economic damages in favor of adult children of an unmarried decedent who was not survived by any minor children, contained an exception prohibiting such recovery in cases where the wrongful death is alleged to be caused by one or more acts of medical malpractice.  The plaintiffs argued that the statute could not be applied to bar their claims, contending that it violated the constitutional guarantee of equal protection of the laws.

The lower courts rejected this argument, and the Supreme Court approved the lower court rulings upholding the statute as against the equal protection challenge.  The court held that the distinction drawn between the statute (between claims based on medical malpractice and other types of negligence) was rationally related to a legitimate governmental objective of limiting increases in the cost of medical malpractice insurance premiums, which ultimately result in a rise in the price of medical care itself.  The court therefore held that it was reasonable, and constitutional, for the legislature to prohibit the recovery of non-economic damages by adult children in medical malpractice cases, even though such recovery was permitted in other types of wrongful death actions.

 

_  Stewart v. Price, 762 So.2d 475 (Fla. 2000).

The decision in this case is essentially the same as in Mizrahi v. North Miami Medical Center, 761 So.2d 1040 (Fla. 2000).  The court answered the identical question that was presented in Mizrahi in the same manner as was decided in Mizrahi.

 

_  Hankey v. Yarian, 755 So.2d 93 (Fla. 2000).

This case concerned the computation of the statute of limitations applicable to a medical malpractice claim.

Pursuant to Section 95.11(4)(b), Florida Statutes (1997), an action for medical malpractice must be commenced within two years from the time the incident giving rise to the action occurred or within two years from the time the incident is discovered or should have been discovered with the exercise of due diligence.  However, before a claimant can file a medical malpractice suit, chapter 766 prescribes a number of requirements and provisions that seek to enhance the prospect of a settlement, and that affect the running of the limitations period.

First, a claimant must conduct a reasonable investigation to determine if there are grounds for a good-faith belief that there was negligence in his care or treatment.  § 766.104(1), Fla. Stat. (1997).  After the completion of this presuit investigation, and during the two-year period provided for in Section 95.11(4)(b), the claimant must serve upon each prospective defendant a notice of intent to initiate litigation.  § 766.106(2), Fla. Stat. (1997).  No suit may be filed for a period of ninety days after this notice of intent is mailed to any prospective defendant.  See, § 766.106(3)(a), Fla. Stat. (1997).  In this regard, Section 766.106(4) provides that “[D]uring the 90-day period, the statute of limitation is tolled as to all potential defendants.  Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension.  Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.”

In the present case, the plaintiff’s lawsuit was not filed within two years of the alleged act of malpractice, but the plaintiff contended that the 90 days following the filing of the notice of intent to sue should be excluded from the two-year period, and that if the two-year limitations period was deemed to be tolled during such 90-day period, then the action was filed timely.  The defendant, on the other hand, argued that the “tolling” language in Section 766.106(4) merely meant that the plaintiff was prohibited from suing during such 90-day period, but that such fact did not operate to extend the limitations period applicable to the claim.

The court, relying on both the language of Section 766.106(4) and the legislative history of the medical malpractice statute, concluded that Section 766.106(4) did in fact suspend the statute of limitations for the 90-day period following the filing of a notice of intent to sue.  In other words, such period of time is to be excluded from the two-year period within which a malpractice plaintiff is allowed (and required) to sue.

 

_  Merkle v. Robinson, 737 So.2d 540 (Fla. 1999).

This case concerned the timeliness of a medical malpractice action filed in Florida and which would be barred by Florida’s statute of limitations, but which would be timely under the law of some other state where the cause of action arose.

The plaintiff filed suit in Florida, alleging a cause of action for medical malpractice that had occurred in West Virginia while both the plaintiff and the defendant doctor were residents of that state.  The doctor subsequently moved to Florida, and even later still, the plaintiff discovered that the defendant’s acts of malpractice may have been the cause of the plaintiff’s injuries.  The plaintiff filed suit in Florida to recover for the alleged malpractice.

The action would have been barred by Florida’s two-year statute of limitations applicable to claims of medical malpractice.  However, the plaintiff argued that the lawsuit should not be dismissed for untimeliness, as it would be timely under the law of West Virginia (which provided generally that the statute of limitations was tolled during any period of time in which the plaintiff was a minor).  The court agreed with the plaintiff’s argument, holding that the “most significant relationships” test should be applied in order to determine which state’s statute of limitations should be given controlling effect in determining the timeliness of a lawsuit.  Applying that test to the facts of the case before it, the court held that West Virginia had the most significant relationship to the case, and since the action would have been timely under West Virginia law, it should not have been dismissed on the basis that the Florida statute of limitations had expired.

 

_  Cohen v. Dauphinee, 739 So.2d 68 (Fla. 1999).

This case concerned the confidentiality and admissibility in evidence of opinions expressed in an affidavit submitted in the course of a pre-suit investigation under the Florida medical malpractice statute. 

As part of the Florida medical malpractice statute, the legislature has imposed a requirement for a pre-suit screening process.  The purpose of this process is to provide an opportunity for defendants to evaluate malpractice claims so that meritorious claims can be disposed of quickly without the necessity of formal litigation.  As part of the pre-suit process, the legislature has mandated that malpractice claimants obtain, and include as part of the claim, an expert opinion of a health-care provider to the effect that the malpractice claim has merit.  § 766.203(2), Fla. Stat.  Section 766.205(4) provides that "[n]o statement, discussion, written document, report, or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party."

In the present case, the plaintiff obtained and attached to the notice of intent to sue an affidavit of an expert as required by the foregoing statute.  Subsequently, at trial, the plaintiff called this same expert as a witness, and the defendant sought to impeach the expert on the basis of statements contained in the presuit affidavit.  In holding that this could not be done, the court relied on both the literal language of Section 766.205(4), as well as the language and legislative history of the malpractice statute as a whole.  The court ascertained that the legislature’s primary objective in enacting the pre-suit screening process was to encourage the free exchange of information, and held that such policy would be discouraged if statements offered during the pre-suit process could subsequently be used against the parties offering such statements.  Accordingly, the court held that the affidavit could not be admitted in evidence at the malpractice trial, even for the limited purpose of impeaching the trial testimony of the same expert who had made the affidavit. 

 

_        E.C. v. Katz, ___ So.2d ___, 24 Fla. L. Weekly S152 (Fla. April 1, 1999).

Although this case involved a medical malpractice claim, the issue addressed by the court really involved a general issue of procedure that could be applicable to any civil suit.

Under the rule of collateral estoppel (sometimes known as “issue preclusion”) a determination in one lawsuit as to the existence or non-existence of certain facts may be binding in a later lawsuit involving the same parties and the same factual issue.  However, in order for this principle to be applicable, it is generally required that there be complete mutuality, meaning that in order for one of the parties to be bound by the result in an earlier action, the other party to the later action must also be in a situation such that he or she would be bound by the earlier result, if it were not favorable to the position her or she presently wishes to advocate.

The plaintiff in this case alleged that the defendant medical practitioners were negligent in failing to diagnose that the plaintiff’s minor child had been subjected to sexual abuse by the child’s father.  The defendants argued that such a claim was barred by the doctrine of collateral estoppel, in that the issue of whether the father had abused the child had been raised in an earlier action (a divorce proceeding between the plaintiff/mother and her husband/the father), and it had been determined in that action that no such abuse had occurred.

The court held that the defendants could not rely on the doctrine of collateral estoppel under the circumstances of this case, since the required mutuality was lacking.  Even though the plaintiff/mother — against whom the doctrine of collateral estoppel was sought to be used in a defensive manner — had been a party to the earlier case, the defendant health-care practitioners had not been.  Therefore, they would not have been bound by the outcome in the earlier case if it had reached a contrary conclusion (finding that the abuse alleged had in fact occurred).  The principle of mutuality therefore prevented the outcome of the earlier case from being binding on the plaintiff/mother.  The issue of whether the abuse alleged had occurred was an issue of fact to be resolved in the pending case, along with the question of whether the defendants had been negligent in failing to discover such abuse, if any existed.

 

_       Musculoskeletal Institute v. Parham, ___ So.2d ___, 24 Fla. L.Weekly S120 (Fla. March 11, 1999).

This case involves the issue of how and to what extent a medical malpractice plaintiff’s compliance with the required pre-suit procedures affects the timeliness of the plaintiff’s claim.

The medical malpractice statute specifies that before a plaintiff can file suit, certain pre-suit procedures must be followed.  The statute requires that the plaintiff provide notice to the defendant of the plaintiff’s intent to sue, and to furnish along with such notice a verified written opinion of a medical expert indicating the existence of grounds to believe that malpractice occurred.  Suit cannot be filed until at least 90 days have elapsed after the giving of such notice.

In order to be timely filed, a medical malpractice statute must meet two separate deadlines; the failure to satisfy either one will result in the action being dismissed.  The first deadline is the two-year statute of limitations.  This period generally begins to run from the time that the act of malpractice occurred, but in situations where the plaintiff(s) did not know, and could not reasonably have known, that the defendant(s) had committed any wrong at that time, the two-year period does not begin to run until the plaintiff(s) knew or should have known of the existence of a malpractice cause of action.

The other time limitation applicable to a medical malpractice action is what is known as the “statute of repose.”  This statute requires that regardless of when the plaintiff(s) knew or should have known of the existence of a malpractice cause of action, such cause of action must be filed within four years of the date of the conduct giving rise to the cause of action.

The malpractice statute specifically states that where a plaintiff provides the required pre-suit notice within the period of time allowed by the statute of limitations, such action will toll (or cease the running of) the statute of limitations during the 90-day period following the notice, during which the plaintiff is precluded from filing suit.  However, the statute is silent regarding whether the pre-suit notice has a similar effect on the statute of repose.

The issue involved in this case was whether the plaintiff’s giving of the pre-suit notice within the four years allowed by the statute of repose resulted in the cause of action being timely, even though the suit was not actually filed until more than four years after the act of malpractice occurred.  The plaintiff contended that the suit was timely, because the pre-suit notice had tolled the statute of repose as well as the statute of limitations.

The court agreed with the plaintiff and held that the action was filed in a timely manner.  Although the malpractice statute did not expressly provide that the filing of the pre-suit notice should toll the four-year statute of repose (as it did with respect to the two-year statute of limitations), the court held that the overall structure and objectives of the malpractice statute required that the statute of repose be treated as having been tolled during the time that the plaintiff was complying with the mandatory requirements for pre-suit notice and investigation.

The court noted that the purpose of the pre-suit requirements was to promote early investigation of the merits of malpractice claims, and settlement of those which proved to have a substantial basis.  In order to achieve these objectives, the legislature had mandated that plaintiffs comply with the required pre-suit procedures, and had prohibited the filing of suit until these procedures had been followed.  The legislature had further provided that a plaintiff’s compliance with these requirements should not cause the plaintiff’s claim to be untimely under the statute of limitations.  The court held that a similar result was required with respect to the statute of repose, in order to avoid a denial of the constitutional guarantee of access to the courts.

Therefore, the court held that for purposes of the four-year statute of repose, a medical malpractice action is deemed to be commenced when the plaintiff provides pre-suit notice of intent to sue, and that the provisions of the malpractice statute regarding tolling of the statute of limitations should also apply to the statute of repose.

 

_        Galen of Florida, Inc. v. Braniff, 696 So.2d 308 (Fla. 1997).

The court was presented with the following question, which had been certified to be a question of great public importance:

 

Whether Section 766.316, Florida Statutes (1993), requires that health care providers give their obstetrical patients pre-delivery notice of their [the health care provider's] participation in the Florida Birth Related Neurological Injury Compensation Claim [NICA] as a condition precedent to the providers' invoking NICA as the patient's exclusive remedy.

 

The court answered the question presented in the affirmative.

The plaintiffs had sued the obstetrician who had delivered their baby, alleging that he was guilty of negligence that caused serious and permanent brain injuries to the baby.  The defendant argued that a negligence claim was precluded by NICA, which limited the plaintiffs to administrative relief.  The plaintiffs responded that although NICA did provide certain provisions limiting the availability of a negligence claim, the defendant was not entitled to rely on them because he had failed to provide pre-delivery notice to the plaintiffs of his participation in the NICA plan.

The court agreed with the plaintiffs, holding that a health-care provider participating in NICA must give a patient notice of this fact a reasonable time prior to delivery, when it is practicable to do so.  In the absence of such notice, the health-care provider is not entitled to rely on NICA's provisions limiting a patient's right to recover under tort claims.

 

_       University Medical Center, Inc. v. Athey, 699 So.2d 1350 (Fla. 1997).

The decision in this case is essentially the same as in Galen of Florida, Inc. v. Braniff, 696 So.2d 308 (Fla. 1997).  The court answered the identical question that was presented in Galen in the same manner as was decided in Galen.

 

_       Domond v. Mills, 696 So.2d 314 (Fla. 1997).

The decision in this case is essentially the same as in Galen of Florida, Inc. v. Braniff, 696 So.2d 308 (Fla. 1997).  The court answered the identical question that was presented in Galen in the same manner as was decided in Galen.

 

_       Tanner v. Hartog, 696 So.2d 705 (Fla. 1997).

In this case the court considered the right of an expectant mother to sue for negligence by a health-care provider that caused the child to be delivered stillborn.  Earlier cases had held that there was no cause of action under the Florida Wrongful Death Act in such circumstances, based on the rationale that an unborn fetus was not a "person."  Extending this rationale, the court reasoned that if a fetus is not considered a separate person, it must then be considered to be part of the mother's body, so that the mother should have a right of action for negligence of another resulting in injury to the fetus.

The primary obstacle to allowing recovery by the mother, the court noted, is the so-called "impact rule," which generally requires that, before a plaintiff can recover for emotional distress caused by the negligence of another person, the plaintiff must show that the emotional distress flowed from physical injuries the same plaintiff had sustained.  However, the court held that the "impact rule" had no application to a cause of action for "wrongful stillbirth," an action which the court held was recognized in Florida.

 

_       Damiano v. McDaniel, 689 So.2d 1059 (Fla. 1997).

This case involved the constitutionality of the "statute of repose" for medical malpractice claims, which statute requires claims to be brought within four years of the date of the act of malpractice on which the claim is brought, regardless of when the patient becomes aware of the injurious consequences of the malpractice.  The plaintiffs' claim alleged that the plaintiff-wife had been infected with the HIV virus as a result of a tainted blood transfusion in June 1986.  She was diagnosed with AIDS in April 1990.  By that time, she had infected the plaintiff-husband.  The plaintiffs filed suit in 1992, but the court held that the claim was untimely, since it was brought more than four years after the act of malpractice, even though it was filed within two years after the plaintiffs learned of the injury that had been caused by that malpractice.

The court acknowledged that the plaintiffs' cause of action did not accrue until they learned of their injuries resulting from the act of malpractice, and that the result in the instant case appeared somewhat harsh, since the effect of the statute of repose was to bar the cause of action before it ever accrued.  Nevertheless, the court held that the language of the statute of repose required that the claim be brought within four years of the defendant's actionable conduct, regardless of the date of accrual of the plaintiff's claims, and that such a result was justified by the legislature's objective of reducing the exposure of health-care providers to medical malpractice claims.  In fact, the court held that the precise issue presented had already been decided adversely to the plaintiffs, by the court's prior decisions in Carr v. Broward County, 541 So.2d 92 (Fla. 1989) and University of Miami v. Bogorff, 583 So.2d 1000 (Fla. 1991).

 

_        Stoll v. Noel, 694 So.2d 701 (Fla. 1997).

This case involves the extent to which independent health-care providers hired by an agency of the state to provide medical services to the agency's clientele are entitled to immunity from tort liability for negligence.  The plaintiffs sued to recover for injuries sustained by their minor daughter as a result of alleged negligence on the part of independent physicians hired by the Florida Department of Health and Rehabilitative Services (HRS) who provided treatment to the plaintiffs' daughter pursuant to an HRS program.

The defendant physicians argued that they were entitled to immunity under the Florida waiver-of-sovereign-immunity statute.  This statute provides that while a governmental agency may be liable in tort under certain circumstances, the individual agents of the government agency are not personally liable for torts committed in the course of their agency, except in cases where they intended to cause injury.  The plaintiffs asserted that the defendant physicians were not entitled to immunity, even though HRS had acknowledged its own liability as an agency for the physicians' conduct, since the physicians were "independent contractors" rather than employees of HRS.

Although the court agreed that these physicians were independent contractors rather than employees under the tests traditionally used to distinguish these concepts, it nevertheless held that the physicians' status as independent contractors did not necessarily preclude them from enjoying immunity as "agents" of HRS.  To the contrary, the court held that the independent contractor physicians were indeed agents, insofar as HRS retained control over the nature of the services to be provided by the physicians, although not their actual physical conduct in providing such services.  Thus, the court held the plaintiffs had no right of action against the independent physicians, although their right to recover from HRS upon proof of negligence by the physicians was not disputed.

_       Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Division of Administrative Hearings, 686 So.2d 1349 (Fla. 1997).

This case addressed the prerequisites to a right of recovery under the Florida Birth-Related Neurological Injury Compensation Plan (NICA).  NICA is a statutory scheme, similar to the workers' compensation act, under which physicians participating in the scheme are granted immunity from tort liability for negligence in birth-related medical services.  Instead, NICA allows recovery for birth-related injuries, on a no-fault basis, in cases where the birth related injuries result in the child being "permanently and substantially mentally and physically impaired."

The plaintiffs, whose child sustained neurological injuries related to oxygen deprivation during delivery by a NICA-participating physician, filed a claim against the plan.  An administrative hearing officer found that the child suffered permanent and substantial impairments of both a physical and mental nature, and allowed recovery.  However, NICA appealed, arguing that while the child was physically impaired, he had no mental impairment insofar as he tested average or even above average on certain standardized tests.  The appellate court agreed with this contention, but nevertheless held that the plaintiffs were allowed to recover, interpreting NICA to allow recovery upon proof of a "permanent and substantial injury, mental and/or physical."

On further appeal to the supreme court, the court interpreted NICA literally and held that it required both a physical and mental impairment.  At the same time, the court held that the lower court had interpreted the term "mental impairment" in an unduly narrow manner.  Merely because the child tested average or above average on standardized intelligence tests did not mean that he was not mentally impaired.  In fact, the court held that the evidence supported the administrative determination that the child was mentally impaired, because even though he may have had an intelligence level in the normal range, his injuries would permanently prevent him from being able to learn in a normal manner, or to develop socially and vocationally as effectively as he would have been able to in the absence of those injuries.  The court therefore approved a right of recovery against NICA.

 

_       Kukral v. Mekras, 679 So.2d 278 (Fla. 1996).

This case concerned the effect of a plaintiff's failure to strictly comply with the statutory requirements for a pre-suit investigation prior to filing of a medical malpractice action.  The statute requires that a plaintiff provide notice to a defendant of intent to sue, and to furnish along with such notice a verified written opinion of a medical expert indicating the existence of grounds to believe that malpractice occurred.  Suit cannot be filed until at least 90 days have elapsed after the giving of such notice.

In the instant case, the plaintiffs gave notice of intent to sue, but did not accompany the notice with the written expert opinion required by the statute.  They did, however, later provide such a notice, and ultimately filed their action within the applicable statute of limitations.  The defendants sought to dismiss the suit for lack of strict compliance with the pre-suit notice procedure.  The court held that lack of strict compliance was not a jurisdictional defect requiring dismissal.  It held that the purposes of the pre-suit notice requirement ^__ giving the parties notice of the basis of the plaintiff's claim and an opportunity to investigate prior to filing of suit ^__ were satisfied, where the plaintiffs did ultimately provide the verified written expert opinion contemplated by the statute (although not at the time of the initial notice), where the parties all had a fair opportunity to investigate the claim prior to filing of the suit, and where both the filing of the suit and all required notices were accomplished within the applicable statute of limitations.

The court also held that a pre-suit notice directed to one potential defendant was also effective to serve as notice to all other defendants bearing a legal relationship to the defendant receiving the notice.  Therefore, a notice to an individual physician was held to also operate as notice to a professional corporation in which the noticed physician was an officer and agent.

 

_       Central Florida Regional Hospital, Inc. v. Wager, 672 So.2d 34 (Fla. 1996).

The decision in this case is essentially identical to Florida Birth-Related Neurological Injury Compensation Ass'n v. McKaughan, 668 So.2d 974 (Fla. 1996).  The court answered the same certified question as in McKaughan in the same manner.

 

_       Acosta v. Richter, 671 So.2d 149 (Fla. 1996).

This case considered the extent of the evidentiary privilege for patient-physician communications created by Section 455.241(2), Florida Statutes.  This statute generally provides that information disclosed to a physician by a patient for purposes of treatment is privileged and may not be disclosed by the physician, but provides an exception for "medical negligence action[s] when a health-care provider is or reasonably expects to be named as a defendant."

In the instant malpractice case, the defendant physician sought and obtained a court order allowing the defendant's attorneys to interview the plaintiff's current treating physicians regarding plaintiff's treatment and condition.  This order was based upon an interpretation of the exception to the privilege as applying in any action wherein a health-care provider was sued for negligence.  The plaintiff appealed, arguing that the exception only operated to allow a physician who was sued to discuss the plaintiff's treatment, for purposes of assisting in his defense, but did not operate as a waiver of the privilege as to other physicians.  The supreme court agreed with this view of the statute, holding that it created a general privilege of confidentiality, and that although an exception existed with respect to information disclosed to a physician who was later sued, such a physician was not entitled to discover information that the plaintiff may have disclosed to other physicians in the course of treatment.

 

_       Pierre v. North Shore Medical Center, Inc., 671 So.2d 157 (Fla. 1996).

This case involved the same issue presented in Acosta v. Richter, 671 So.2d 157 (Fla. 1996).  The court issued a brief per curiam decision following its decision in Acosta.

 

_       Florida Birth-Related Neurological Injury Compensation Ass'n v. McKaughan, 668 So.2d 974 (Fla. 1996).

This case involved the appropriate method and forum for determining whether or not an injury to a newborn for which compensation is sought constitutes a "birth-related neurological injury" for purposes of the Florida Birth-Related Neurological Injury Plan (NICA).  The plaintiffs filed a tort suit seeking recovery for such injuries, which they contended had not been sustained during or immediately after the delivery process and therefore did not qualify as an injury compensable under NICA.  The defendant, on the other hand, contended that the plaintiffs' sole remedy was under NICA, and requested that the plaintiffs' lawsuit be stayed pending an administrative determination of whether or not the injuries were compensable under NICA.

The court held that the determination of whether or not NICA provided the plaintiffs' exclusive remedy was to be made by the circuit court in the malpractice action rather than in a separate administrative proceeding initiated solely for that purpose.  Although the circuit court might ultimately determine that the injury for which recovery was sought was indeed a "birth-related neurological injury" subject to NICA so that the court lacked authority to grant relief, this did not divest the court of jurisdiction to make such a determination in the first place. Thus, while a defendant sued for a birth-related injury may assert exclusivity as an affirmative defense, it cannot compel plaintiffs to litigate their claims in an administrative forum against their wishes.

 

_        Pate v. Threlkel, 661 So.2d 278 (Fla. 1995).

This case considered a physician's potential liability to children of a patient the physician is treating, for failing to warn of the genetically transferable nature of the patient's condition.  The court held that the existence of a duty to warn of the transferable characteristics of any particular condition (here, medullary thyroid carcinoma) depended upon the nature of the condition in question, and whether a reasonably prudent health-care provider would deem it advisable to provide such notice.

The court further held that, in cases where there was a duty to warn, such duty extended to the children of the patient as well as to the patient himself, so that the physician could potentially be liable for injuries suffered by the patient's children as a result of the failure to warn.  The court found such liability appropriate, despite the absence of any physician-patient relationship, in view of the foreseeable nature of such injuries to the patient's children.  However, the court concluded that it was not necessary for the physician to actually warn the children directly in order to satisfy the duty owed to the children.  Rather, a warning to the patient was deemed sufficient to discharge any duty to warn.

 

_        Wells v. Tallahassee Memorial Regional Medical Center, Inc., 659 So.2d 249 (Fla. 1995).

Although it arose in the context of a medical malpractice suit, this is really more of a standard negligence case.  The issues involved setoff and apportionment of amounts received from settling defendants, and there is nothing about case that is uniquely applicable to malpractice cases.  Therefore, no extensive summary is provided.

 

_        Russo v. Sera-Tec Biologicals, Inc., 657 So.2d 1159 (Fla. 1995).

This was a case where the supreme court granted review because the district court of appeal had affirmed on the basis of another decision that was presently pending review by the supreme court.  Having issued an opinion in the case upon which the lower court had relied, the supreme court remanded for further consideration in light of its opinion.

 

_       Amente v. Newman, 653 So.2d 1030 (Fla. 1995).

This case involved a malpractice claim by the plaintiffs for birth-related injuries sustained by their child.  They alleged that these injuries were caused by the negligence of the defendant physician in utilizing a regular delivery bed, when he should have used a drop-down delivery bed in light of the mother's obesity.  They sought to discover all of the records of the defendant concerning deliveries of "markedly obese" mothers during a two-year period, and the trial court ordered the defendant to provide such information, with the names of the patients in question redacted.

The supreme court approved the discovery ordered by the trial court.  It held that the information sought by the plaintiffs was relevant to prove that use of the regular delivery bed caused the infant's injury, and/or to impeach the defendant's claim that he had done nothing wrong.  It also held that disclosure of the defendant's records would not violate any rights of privacy of the defendant's other patients, so long as the records were redacted such that the identity of the patients could not be ascertained.

_        R.J. v. Humana of Florida, Inc., 652 So.2d 361 (Fla. 1995).

This case involved a malpractice claim by a plaintiff who was erroneously diagnosed as having the HIV virus.  He alleged that he had suffered a number of injuries from this misdiagnosis before learning of the error, including hypertension, pain and suffering, mental anguish, loss of capacity for the enjoyment of life, and expenses incurred for medical care and attention.  When he sued to recover for these injuries, the defendant contended that recovery was barred by the "impact rule," under which a plaintiff is barred from recovering for emotional distress caused by the negligence of another unless he can demonstrate that such emotional distress flowed from physical injuries the plaintiff sustained in an impact.

The supreme court held that although the impact rule applied to the plaintiff's claim, it did not necessarily preclude a right of recovery.  The court noted that the impact rule had long been a part of Florida law, and reaffirmed its continuing validity.  It refused to recognize an exception to the impact rule for medical misdiagnosis cases, suggesting that such an exception would result in exorbitant increases in the cost of medical care.  It also held that the injuries alleged by the plaintiff were insufficient to satisfy the "physical injury" requirement of the impact rule.

However, the court held that the plaintiff should have further opportunity to attempt to allege a claim that would satisfy the impact rule.  Although it indicated that mere touching during a medical examination or minimally intrusive medical procedures (such as the withdrawal of blood for testing) would not satisfy the requirement of a physical injury, it was possible that more invasive or painful treatments that the plaintiff had endured as a result of the HIV misdiagnosis (such as surgery or administration of caustic drugs having deleterious side effects) might be sufficient for this purpose.

 

_        JFK Medical Center, Inc. v. Price, 647 So.2d 833 (Fla. 1994).

This case considered the effect of a plaintiff's settlement with an allegedly negligent physician upon the plaintiff's right to recover from a hospital at which the allegedly negligent services were provided.  The plaintiff had initially sued both the physician and the hospital, on the theory that the hospital was the physician's employer and thus liable for the physician's negligence.  The plaintiff eventually settled with the physician, and agreed to dismiss with prejudice all claims against the physician.  The settlement agreement expressly stated that it was not intended to affect the plaintiff's rights against the hospital.

The hospital nevertheless argued that the settlement with the physician relieved the hospital of liability as a matter of law.  The hospital relied on cases holding that where an employee is found to have committed no actionable tort against an injured person, the employee's employer is immune from liability as a matter of law, on the theory that there is no negligence for which the employer could be held to be vicariously liable.

The supreme court rejected this argument, reasoning that the voluntary settlement of the plaintiff's claims against the physician was not the equivalent of a finding that the physician had committed no wrongful act against the plaintiff.  Therefore, since the settlement agreement expressly stated that it was not intended to affect the plaintiff's rights against the employer-hospital, the plaintiff's rights against the hospital were not extinguished by the settlement.  Upon proof that the physician was negligent, and that such negligence occurred in the course and scope of the physician's employment by the hospital, the hospital could be held liable to the plaintiff.  In such circumstances, the court indicated, the hospital might have a right of indemnity against the negligent physician for amounts it had to pay to the plaintiff due to the physician's negligence.

 

_        J.B. v. Sacred Heart Hospital of Pensacola, 635 So.2d 945 (Fla. 1994).

This case involves the definition of what constitutes a "medical malpractice" claim.  The plaintiff sued the defendant hospital, alleging that the hospital was negligent in asking the plaintiff to transport his brother, a patient at the hospital, to another facility without informing plaintiff that his brother had been diagnosed as HIV positive.  During the transportation, the plaintiff's hand, which had multiple nicks and cuts, came in contact with bodily fluid from the brother's wound, and resulted in the plaintiff contracting the HIV virus.

The plaintiff sued the hospital, which sought dismissal on the ground that plaintiff had not complied with the pre-suit notice and screening requirements for medical malpractice claims, and because the action had not been filed within the two-year statute of limitations for medical malpractice claims.  The court held that none of these requirements was applicable to the plaintiff's claim, as it did not involve a medical malpractice claim, which the applicable statutes defined as a claim arising out of the rendition (or failure to render) medical diagnosis, treatment, or care.  Rather, the plaintiff's claim alleged negligence by the hospital in using plaintiff as a provider of services to the hospital, so that neither the medical malpractice statute of limitations nor the medical malpractice pre-suit notice and screening requirements were applicable.

 

_        Patry v. Capps, 633 So.2d 9 (Fla. 1994).

This case addressed the significance of a failure to strictly comply with the statutory pre-suit notice requirements for a medical malpractice action.  The statute requires that a plaintiff intending to sue for medical malpractice must provide pre-suit notice to the defendant, and that this notice shall be served by certified mail, return receipt requested.  In the instant case, the required notice was provided in a timely manner, but it was not served by certified mail, instead being hand delivered to the defendant.  The defendant argued that this required dismissal of the plaintiff's claim.

The supreme court disagreed.  It held that the prescription for certified mail was merely a technicality designed to insure that the fact and timeliness of service of the notice could be verified with minimal dispute.  Since the instant defendant had acknowledged hand delivery of the notice in a timely manner, the statutory objectives had been accomplished, and the lack of strict compliance with the statutory procedures did not mandate dismissal of the plaintiff's claim.

 

_       Weinstock v. Groth, 629 So.2d 835 (Fla. 1993).

This case addressed the issue of who is a health-care provider within the meaning of Florida's medical malpractice statutes, which require pre-suit notices before filing of a malpractice suit against a health-care provider.  The plaintiff filed suit against the defendant, a psychologist and marriage counselor, alleging that the plaintiff and her husband had consulted the defendant for therapy, and that the defendant had entered into a romantic affair with plaintiff's husband while still owing a professional duty to the plaintiff.  The defendant moved for dismissal based on plaintiff's failure to comply with the statutory requirements for pre-suit notice.

The court held that the plaintiff was not required to comply with the statutory provisions for pre-suit notice, since her claim was not against a "health-care provider" to whom the statutory requirements were applicable.  The court noted that the statutory definition of health-care providers did not include psychologists or mental-health counselors, and that the statutory scheme did not impliedly indicate any intention to include them.  Therefore, since the plaintiff's claim was not against a health-care provider or another entity responsible for the conduct of such a health-care provider, the pre-suit notice requirements were not applicable.

 

_        Boyd v. Becker, 627 So.2d 481 (Fla. 1993).

This case addressed the issue of the timeliness of a medical malpractice claim.  The Florida statutes provide for a two-year statute of limitations on such claims, and also provide that the limitations period is tolled for a period of ninety days following the giving of the statutorily-prescribed pre-suit notice, during which time the plaintiff is prohibited from filing suit.  In this case, a question arose as to whether this ninety-day tolling period should be measured from the date the notice was mailed by the plaintiff, or the date the notice was received by the defendant.  The plaintiff's lawsuit was timely filed if the tolling period ran from the date of receipt by the defendant, but not if the tolling period was computed on the basis of the date the notice was mailed by the plaintiff.

The court held that although there were conflicting provisions in the Florida statutes, measuring the tolling period from the date of receipt by the defendant would be more fair and consistent with the statutory scheme than the alternative interpretation argued for by the defendant.  Accordingly, it held that a lawsuit filed within the statute of limitations, as tolled for a period of ninety days after the date of receipt of pre-suit notice by the defendant, was timely.

 

_        HCA Health Services of Florida, Inc. v. Branchesi, 620 So.2d 176 (Fla. 1993).

This is a per curiam opinion based on the court's earlier opinion in University of Miami v. Echarte, 618 So.2d 189 (Fla. 1993).

 

_       Orlando Regional Medical Center v. Allen, 620 So.2d 993 (Fla. 1993).

This is a per curiam opinion affirming the decision of the district court of appeal.  The supreme court had granted review based on conflict between the decision below and the decision of another district court of appeal on the same issue.  Since the supreme court had recently reversed the conflicting decision in Tanner v. Hartog, 618 So.2d 177 (Fla. 1993), it affirmed the decision of the lower court in Allen.

 

_       Tanner v. Hartog, 618 So.2d 177 (Fla. 1993).

This case addresses the issue of when the two-year statute of limitations on a medical malpractice claim begins to run.  Earlier cases had held that a cause of action for malpractice accrued, and the statute of limitations began expiring, at the time that the plaintiff knew or should have known that either the injury or the defendant's negligent act had occurred.  In Tanner, the court reconsidered this rule in light of claims that it was unrealistic and tended to encourage litigation.

The court modified its earlier holdings by ruling that the plaintiff's "knowledge of the injury" as referred to in the above rule meant not only knowledge of the injury itself, but also knowledge that there was a reasonable possibility that the injury was caused by medical malpractice.  In cases where the nature of the injury, standing alone, is such as to communicate the possibility of medical negligence, then mere knowledge of the injury is sufficient to trigger the statute of limitations.  However, if the injury is such that it is likely to have occurred from natural causes, the statute of limitations will not begin to run until such time as there is reason to believe that medical malpractice may possibly have occurred.

 

_       Kronman v. Norsworthy, 618 So.2d 186 (Fla. 1993).

This is a per curiam opinion affirming the decision of the district court of appeal.  The supreme court had granted review based on conflict between the decision below and the decision of another district court of appeal on the same issue.  Since the supreme court had recently reversed the conflicting decision in Tanner v. Hartog, 618 So.2d 177 (Fla. 1993), it affirmed the decision of the lower court in Kronman.

 

_       Hillsborough Community Mental Health Center v. Harr, 618 So.2d 187 (Fla. 1993).

This case involved application of the revised standard for determining when a plaintiff has "notice of an injury" so as to commence the statute of limitations period, as adopted in Tanner v. Hartog, 618 So.2d 177 (Fla. 1993).  The plaintiff sued for wrongful death of her son, alleging that the defendant mental-health facility negligently discharged him from under its care despite knowledge of his suicidal tendencies.