A.M. v. Bayfront HMA Medical Center, LLC

UNITED STATES DISTRICT COURT

. MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

A.M., by and through her parents and

natural guardians Duval Malcom and

Shawntel Gordon, DUVAL MALCOLM,

and SHAWNTEL GORDON,

Plaintiffs,

Vv. Case No.: 8:18-cv-2398-EAK-SPF

BAYFRONT HMA MEDICAL

CENTER, LLC, d/b/a BAYFRONT.

MEDICAL CENTER n/k/a

BAYFRONT HEALTH ST.

PETERSBURG d/b/a BAYFRONT

BABY PLACE AT ALL CHILDREN’S

HOSPITAL, et al.,

Defendants.

ORDER

The plaintiffs, A.M. and her parents and natural guardians Duval Malcolm and

Shawntel Gordon (collectively, the “Plaintiffs”), sue the defendants! for medical

malpractice. (Doc. 26). Bayfront, Deluca, Gibson, Hurley, and Segler (collectively,

the “Bayfront Defendants”), (Doc. 24), All Children, (Doc. 35), Sanchez, (Doc. 36),

and the Board, (Doc. 47), move to abate certain of the Plaintiffs’ claims and to dismiss

' Specifically, the Plaintiffs sue Bayfront HMA Medical Center, LLC, d/b/a Bayfront Medical Center

n/k/a Bayfront Health St. Petersburg d/b/a Bayfront Baby Place At All Children’s Hospital

(“Bayfront”), Chelsea Deluca (“Deluca”), Jalessa Clark-Gibson (“Gibson”), Aimee Engelman-

Hurley (“Hurley”), Jackie O’Toole-Segler (“Segler”), Johns Hopkins All Children’s Hospital, Inc.

d/b/a All Children’s Hospital (“All Children”), the University of Florida Board of Trustees (the

“Board”), Lajuan Sanchez (“Sanchez”), and the United States (collectively, the “Defendants”).

(Doc. 26).

the others. The Plaintiffs oppose in part. (Docs. 33, 37, 63, 57). The Court will grant-

in-part and deny-in-part the motions.

I. Background

On March 20, 2016, at approximately 8:00 p.m., Shawntel Gordon was

admitted into Bayfront Baby Place, a perinatal intensive care center operated by

Bayfront and located at All Children, after experiencing contractions and early signs

of labor. (Doc. 26 at {1). Twenty-five hours later, her daughter, A.M., was born with

a hypoxic-ischemic encephalopathic brain injury. Id. at {/43, 46. The Plaintiffs allege

A.M.’s injury was a direct result of the Defendants’ labor and delivery

mismanagement. Id. at {{32-46.

The Plaintiffs sue five individuals — four registered nurses employed by Bayfront

and a student nurse midwife enrolled in the University of Florida College of Nursing

(“UFCON”) midwifery program — and four separate entities - Bayfront, the owner

and operator of Bayfront Baby Place, All Children, the hospital out of which Bayfront

Baby Place operates, the Board, which governs UFCON, and the United States, which

funds the healthcare center that employs Ms. Gordon’s OB-GYN and her certified

nurse midwife. Id. at 48-26. The Plaintiffs assert the following sixteen causes of

action against the Defendants:

Count I Willful, reckless, and wanton disregard of human rights and safety

(Sanchez)

Count IT Negligence (Deluca) □

Count UI Willful, reckless, and wanton disregard of human rights and safety

(Deluca)

CountIV Negligence (Gibson)

Count V Willful, reckless, and wanton disregard of human rights and safety

(Gibson)

Count VI Negligence (Hurley)

Count VIT Willful, reckless, and wanton disregard of human rights and safety

(Hurley) □

Count VIII Negligence (Segler)

Count Willful, reckless, and wanton disregard of human rights and safety

(Segler)

Count X Vicarious liability based on negligence (Bayfront)

Count XI __- Vicarious liability based on willful, reckless, and wanton disregard

of human rights and safety (Bayfront)

Count XII Negligence/breach of non-delegable duty (Bayfront)

Count XIII Vicarious liability based on joint venture (All Children)

Count XIV Vicarious liability based on negligence (the United States)

Count Vicarious liability based on willful, reckless, and wanton disregard

of human rights and safety (the United States)

Count XVI Vicarious liability based on negligence (the Board)

The Court will first address the Plaintiffs’ negligence claim against the Board

(Count XVI). Next, the Court will address the Plaintiffs’ negligence claims against the

Bayfront Defendants, All Children, and the United States (Counts I, IV, VI, VUI, X,

XII, XIII, and XIV). Finally, the Court will address the Plaintiffs’ remaining claims

sounding in willful, reckless, and wanton disregard for human rights and safety against

the Bayfront Defendants, Sanchez, and the United States (Counts IJ, TI, V, VII, IX,

XI, and XV).

IY. Discussion

A. The Court Will Dismiss Count XVI Pursuant to the Eleventh

Amendment.

The Board moves to dismiss the Plaintiffs’ vicarious liability claim in Count

XVI because, it argues, the claim is barred by the Eleventh Amendment to the United

States Constitution. (Doc. 47 at 3-5).

“Absent a legitimate abrogation of immunity by Congress or a waiver of

immunity by the state being sued, the Eleventh Amendment is an absolute bar to suit

by any individual against a state or its agencies in federal court.” Gamble v. Fla. Dep’t

of Health & Rehab. Servs., 779 F.2d 1509, 1511 (11th Cir. 1986). State university

boards of trustees are considered state agencies for purposes of Eleventh Amendment

immunity. See §§ 768.28(2), Fla. Stat. See also, e.g., Debose v. Univ. of S. Fla., 178

F. Supp. 3d 1258, 1266-67 (M.D. Fla. 2016) (Kovachevich, J.). As a result, the

Eleventh Amendment immunizes the Board from suit in this Court unless Congress

validly abrogated that immunity or Florida waived the immunity. Gamble, 779 F.2d

at 1511. Here, neither exception applies, and the Plaintiffs don’t disagree. (Doc. 57

at 4-5). The Court will therefore dismiss Count XVI.”

B. The Court Will Abate Counts II, IV, VI, VII, X, XII, XIII, and XIV

Pursuant to NICA.

The Bayfront Defendants move to abate the Plaintiffs’ negligence claims in

Counts II, IV, VI, VIII, X, and XII pursuant to Florida’s Birth-Related Neurological

Injury Compensation Act (“NICA”), § 766.303 et_seq., Fla. Stat. (Doc. 24 at 2-7).

All Children joins in that argument with respect to the Plaintiffs’ vicarious liability

_ claim in Count XIII. (Doc. 35 at 2-3).

As explained by the Florida Supreme Court and the Eleventh Circuit,

[NICA] was established by the Florida Legislature in 1988 as a means to

alleviate the high costs of medical malpractice insurance for physicians

practicing obstetrics. The legislature found that obstetricians were

among the most severely affected by the current malpractice problems

and that the costs of birth-related neurological injury claims were

extremely high. Consequently, the legislature created the NICA fund to

provide compensation, on a no-fault basis, for birth-related neurological

injuries.

Fla. Birth-Related Neurological Injury Comp. Ass’n v. Dep’t of Admin. Hearings, 29

So. 3d 992, 995 (Fla. 2010) (citing § 766.301, Fla. Stat.).

This no-fault compensation plan provides the exclusive remedy for

injuries that are compensable under the plan, except where there is clear

and convincing evidence of bad faith or malicious purpose or willful and

2 Although they concede the applicability of Eleventh Amendment immunity to their vicarious

liability claim against the Board, the Plaintiffs request the Court remand the claim (and each of their

remaining state law claims) back to state court in lieu of dismissal. Because the Plaintiffs’ request for

remand is not properly before the Court, however, see Fed. R. Civ. P. 7(b)(1)(A) (“A request for a

court order must be made by motion.”); Local R. M.D. Fla. 3.01 (a), the Court declines to consider it.

‘wanton disregard of human rights, safety, or property, and suit is filed

prior to and in lieu of payment of an award under the plan. To recover

under the no-fault plan, the representatives of an injured infant must file

. a claim with the Florida Birth-Related Neurological Injury .

Compensation Association, which administers the plan. An

administrative law judge [(‘ALJ”)] has the exclusive jurisdiction _to

determine whether a claim is compensable under the plan. A claim is

compensable under the plan only if the [ALJ] determines that the infant’s

injury is a birth-related neurological injury sustained during obstetric

treatment by a participating physician or a certified nurse midwife under

the supervision of a participating physician.

Maradiaga v. United States, 679 F.3d 1286, 1288-89 (11th Cir. 2012) (citing §§

766.303(2), 766.304, 766.305, 766.309, 766.315, 766.31, Fla. Stat.) (Gnternal □

quotations omitted) (emphasis added). “If the [ALJ] determines that a claim 1s

compensable under the no-fault plan, then no civil action for the covered injury may

be brought or continued in violation of [NICA’s] exclusiveness of remedy provisions.”

Id. at 1289 (citing § 766.304, Fla. Stat.) (internal quotations omitted) (emphasis

added). If, on the other hand, the ALJ “determines that a claim is not compensable

under the no-fault plan, then representatives of the injured infant may pursu[e] any

and all civil remedies available under common law and statutory law.” Id. (citing §

766.304, Fla. Stat.) (internal quotations omitted) (emphasis added).

The determination of the compensability of a plaintiff's claim under NICA is a

condition precedent to the filing of a civil lawsuit. Failure of a trial court to abate an

action ripe for NICA determination by the ALJ as to the compensability of an injury

under the no-fault plan is considered a “depart[ure] from the essential requirements of

the law.” Univ. of Miami v. M.A., 793 So. 2d 999, 1000 (Fla. 3d DCA 2001) (per □

curiam) (citation omitted).

Pursuant to NICA’s exclusiveness of remedy provisions, the Bayfront

Defendants and All Children move to abate each of the Plaintiffs’ claims sounding in

negligence until such time as the ALJ has determined compensability under NICA.

(Docs. 24 at 2-7, 35 at 2-3). For their part, the Plaintiffs agree that their “regular

negligence Counts” against the Bayfront Defendants should be abated.? (Doc. 33 at

6). The Court will therefore abate Counts I, IV, VI, VIII, X, and XII.

However, the Plaintiffs oppose, in part, abatement of their vicarious liability

claim against All Children in Count XII. (Doc. 63 at 6-8). Specifically, the Plaintiffs

contend that those portions of Count XIII sounding in willful, reckless, and wanton

disregard of human rights and safety should proceed in this Court, since such claims

are explicitly excepted by NICA. Id. But, upon review, Count XIII doesn’t allege that

All Children is vicariously liable for the willful, reckless, and wanton disregard of

human rights and safety by Ms. Gordon’s treating physicians and nurses. Rather, in

Count XIII, the Plaintiffs affirmatively allege only that All Children “is vicariously

liable for the acts of negligence” committed by those individuals. (Doc. 26 at 4118)

(emphasis added). If the Plaintiffs sought to hold All Children vicariously liable for

® Specifically, the Plaintiffs agree that “Counts II, IV, VI, VII, and X, only,” should be abated. (Doc.

33 at 3) (emphasis added). The Plaintiffs make no representation with respect to abatement of Count

XII. However, upon review, Count XII asserts a negligence/breach of non-delegable duty claim

against Bayfront. (Doc. 26 at (9102-110). Such a claim, of course, sounds in negligence and is also

due to be abated.

the alleged willful, reckless, and wanton disregard of human rights and safety by Ms.

Gordon’s treating physicians and nurses, they were required to specifically plead such

a claim in their complaint. See Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126,

1127 (Fla. 1985) (holding that the defendant could not be found liable under a theory

of vicarious liability that was not specifically pleaded in the complaint). They didn’t,

however, and on its face Count XIII sounds solely in negligence. The Court will

therefore abate Count XIII.

Additionally, although no party has so moved, the Court will likewise abate the

Plaintiffs’ negligence claim against the United States in Count XIV. See Maradiaga,

679 F.3d at 1292-93 (holding that the plaintiffs’ civil lawsuit brought under the Federal

Tort Claims Act against the United States, alleging that the negligence of certain

medical professionals at a federally supported healthcare center caused their son’s

severe brain injuries, was barred by NICA’s exclusiveness of remedy provisions).

C. The Court Will Stay the Prosecution of Counts I, II, V, VII, [X, XI, and

XV Pending the ALJ’s NICA Compensability Determination.

The Bayfront Defendants move to dismiss the Plaintiffs’ willful, reckless, and

wanton disregard for human rights and safety claims in Counts ITI, V, VU, IX, and XI

because, they argue, the Plaintiffs failed to plausibly allege that Ms. Gordon’s treating

physicians or nurses engaged in the type of conduct necessary to support those claims.

(Doc. 24 at 11-16). Sanchez levies a similar argument with respect to the Plaintiffs’

nearly identical claim against him in Count I. (Doc. 36 at 5-6). As an additional

ground for dismissal of Count XI, which is predicated on a theory of vicarious liability,

Bayfront argues the Plaintiffs failed to plausibly allege that Ms. Gordon’s treating

physicians or nurses were employees, agents, or apparent agents of Bayfront. (Doc.

24 at 7-11).

At this juncture, the Court will decline to consider the merits of the Bayfront

Defendants’ and Sanchez’s arguments for dismissal of the Plaintiffs’ willful, reckless,

and wanton disregard for human rights and safety claims against them. Instead, the

Court will stay the prosecution of those claims — as well as the Plaintiffs’ nearly

identical claim against the United States in Count XV — pending the ALJ’s NICA

compensability determination.

A district court has the inherent, discretionary authority to stay litigation before

it pending the outcome of a related proceeding in another forum, so long as the

duration of the stay is reasonable and the need for the stay is justifiable. See CTI-

Container Leasing Corp. v. Uiterwyk Corp., 685 F.2d 1284, 1288 (11th Cir. 1982)

(“The inherent discretionary authority of the district court to stay litigation pending

the outcome of [a] related proceeding in another forum is not questioned. ... The

district court has a general discretionary power to stay proceedings before it in the

control of its docket and in the interests of justice.”) (citations omitted). Here, the

Court finds that a stay pending the outcome of the NICA proceedings is in the best

interests of the just adjudication of the dispute on its merits and of the time and

resources of the Court, the lawyers, and the litigants. The NICA proceedings may

materially affect the proceedings in this Court, and a stay will operate to avoid the

piecemeal and potentially inconsistent litigation of the dispute in two separate forums

and in front of two different referees. Moreover, the stay will have a finite duration. _

That is, the stay will last only as long as the NICA proceedings, which typically

conclude within a matter of months. See § 766.307(1), Fla. Stat., (requiring that the

ALJ set a hearing on the claim between 60 and 120 days after the filing of the petition).

Once the NICA proceedings have concluded and the parties have informed the Court

as to the outcome, the Court will lift the stay and permit the Bayfront Defendants and

Sanchez to renew those portions of their motions seeking dismissal of the Plaintiffs’

claims in Counts I, ITI, V, VII, IX, and XI and otherwise reinstitute the prosecution of

this action.

Il. Conclusion .

Accordingly, it is ORDERED that the pending motions to dismiss, (Docs. 24,

35, 36, 47), aae GRANTED-IN-PART and DENIED-IN-PART as follows:

1. Count XVI of the Plaintiffs’ complaint is DISMISSED.

2. Counts II, VI, VII, X, XII, XIII, and XIV of the Plaintiffs’ complaint

are ABATED for compensability determination by the ALJ pursuant to

NICA.

3. The prosecution of Counts I, III, V, VII, IX, XI, and XV of the Plaintiffs’

complaint is STAYED pending the ALJ’s NICA compensability □

determination, and those portions of the Bayfront Defendants’ and

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Sanchez’s motions to dismiss seeking dismissal of Counts I, III, V, VI, IX,

and XI are DENIED WITHOUT PREJUDICE.

4. The parties shall jointly file on the Court’s docket a status report regarding

the status of the NICA proceedings every 60 days, beginning on the 60th day

after the entry of this Order, or upon completion of the NICA proceedings,

whichever occurs sooner. If the NICA proceedings haven’t concluded

before the 180th day after this Order issues, the Court will entertain motion

practice to lift the stay and reinstitute the prosecution of Counts I, III, V,

VU, IX, XI, and XV.

5. The parties’ deadline to file a Case Management Report is STAYED

pending further Order of the Court.

ORDERED in Chambers, in Tampa, Florida, this 28th day of August, 2019.

co

———_EEAABETH A. KOVACHEVICH

UNITED STATES DISTRICT JUDGE.

Copies furnished to:

Counsel/Parties of Record

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