Steve Buck v. Columbia Hospital Corporation of South Broward

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

STEVE BUCK, as Personal Representative of the Estate of JOAN

BROWN, deceased,

Appellant,

v.

COLUMBIA HOSPITAL CORPORATION OF SOUTH BROWARD, d/b/a

WESTSIDE REGIONAL MEDICAL CENTER, a Florida company,

Appellee.

No. 4D13-2165

[September 10, 2014]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Dale Ross, Judge; L.T. Case No. 12-027829 (08).

Jonathan M. Streisfeld and Scott J. Weiselberg of Kopelowitz Ostrow

Ferguson Weiselberg Keechl, Fort Lauderdale, for appellant.

Fann & Petruccelli, P.A., Fort Lauderdale, and Mark Hicks, Dinah

Stein, and Shannon Debus-Horn of Hicks, Porter, Ebenfeld & Stein, P.A.,

Miami, for appellee.

FORST, J.

The trial court dismissed the complaint filed by Appellant Steve Buck

based on his failure to comply with the pre-suit requirements of Chapter

766, Florida Statutes (2012). Appellant argues the trial court erred by

applying Chapter 766 to his complaint because the complaint stated a

claim of simple negligence, as opposed to medical negligence. We disagree

with Appellant and affirm.

Background

Appellant/Plaintiff Steve Buck, as personal representative of the

decedent’s estate, filed a complaint against Appellee/Defendant Westside

Regional Medical Center for the wrongful death of the decedent. The

complaint alleged the following facts:

 On or about May 5, 2012, [the decedent] was brought to

Westside and admitted due to complications related to her

chronic obstructive pulmonary disease [“COPD”].

 On or about May 7, 2012, [the decedent] was scheduled to

have x-rays; consequently, she was transported from her room

to the radiology floor.

 Prior to the x-rays being taken, [Appellee’s] transport techs

moved [the decedent] from the transport gurney and lifted her

onto the x-ray table. In the course of moving [the decedent]

from the gurney to the x-ray tables, [Appellee’s] employees

and/or agents accidentally dropped [the decedent] onto the

hard x-ray table surface causing her to sustain a fracture of

her lumbar spine.

Because of the decedent’s age, medical condition, and other factors, the

treatment options for the broken back were limited, and her condition

began to decline. The complaint alleges that the broken back, “sustained

at the hands of [Appellee],” ultimately caused the accidental death of the

decedent.

Appellee moved to dismiss the complaint, alleging that Appellant failed

to comply with the pre-suit requirements of Chapter 766, Florida Statutes,

which covers causes of action in medical negligence cases. Section

766.106 defines a “‘[c]laim for medical negligence’ or ‘claim for medical

malpractice’ [as] a claim, arising out of the rendering of, or the failure to

render, medical care or services.” § 766.106(1)(a), Fla. Stat. (2012).

At a hearing Appellee’s motion, Appellant argued that the pre-suit

requirements of Chapter 766 do not apply because the four corners of the

complaint in this case state a cause of action in general negligence, as

opposed to medical negligence. The trial court ultimately disagreed and

granted Appellee’s motion to dismiss. The complaint was dismissed, with

prejudice, and a final judgment was entered in favor of Appellee.

On appeal, Appellant argues that the trial court erred by dismissing his

complaint because the four corners of the complaint state a cause of action

in ordinary negligence as opposed to medical negligence.

Decedent was injured as a Result of Medical Negligence

We review an order dismissing a complaint with prejudice de novo.

Stubbs v. Plantation Gen. Hosp. Ltd. P’ship, 988 So. 2d 683, 684 (Fla. 4th

DCA 2008) (“Stubbs I”) (quoting Palumbo v. Moore, 777 So. 2d 1177, 1178

(Fla. 4th DCA 2000)). “A motion to dismiss for failure to state a cause of

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action admits all well pleaded facts as true, as well as reasonable

inferences from those facts[;] . . . [a] court may not properly go beyond the

four corners of the complaint in testing the legal sufficiency of the

allegations set forth therein.” Id. (internal quotations and citations

omitted).

A claim for negligence is subject to Chapter 766’s pre-suit requirements

“if the wrongful act is directly related to the improper application of

medical services and the use of professional judgment or skill.” Stubbs v.

Surgi-Staff, Inc., 78 So. 3d 69, 70 (Fla. 4th DCA 2012) (“Stubbs II”) (internal

quotations and citations omitted). On the other hand, “[c]laims of simple

negligence or intentional torts which do not involve the provision of

medical services do not require compliance with Chapter 766 presuit

requirements.” Indian River Mem’l Hosp. v. Browne, 44 So. 3d 237, 238

(Fla. 4th DCA 2010). When determining whether a complaint alleges a

cause of action in medical negligence versus simple negligence, “[t]he key

inquiry is whether the action arises out of medical diagnosis, treatment,

or care.” Stubbs II, 78 So. 3d at 70-71 (internal quotations and citations

omitted).

In addressing this issue, balance is required. On the one hand,

“[i]rreparable harm can be shown where a court incorrectly denies a

motion to dismiss for failure to follow pre-suit requirements, as doing so

would eliminate the cost-saving features the Act was intended to create.”

Palms W. Hosp. Ltd. P’ship v. Burns, 83 So. 3d 785, 788 (Fla. 4th DCA

2011) (citing Dr. Navarro’s Vein Ctr. of the Palm Beach, Inc. v. Miller, 22 So.

3d 776, 778–79 (Fla. 4th DCA 2009)). On the other hand, the Florida

Supreme Court has declared “that the pre-suit screening procedures

should be read in a way which favors access to the courts.” Id. (citing

Integrated Health Care Servs., Inc. v. Lang–Redway, 840 So. 2d 974, 980

(Fla. 2002)).

The Florida Supreme Court, in Silva v. Southwest Florida Blood Bank,

Inc., 601 So. 2d 1184 (Fla. 1992), addressed the pertinent “medical

negligence” terms:

First, there is no ambiguity to clarify in the words “diagnosis,”

“treatment,” or “care,” and we find that these words should be

accorded their plain and unambiguous meaning. In ordinary,

common parlance, the average person would understand

“diagnosis, treatment, or care” to mean ascertaining a

patient’s medical condition through examination and testing,

prescribing and administering a course of action to effect a

cure, and meeting the patient’s daily needs during the illness.

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This parallels the dictionary definitions of those terms.

According to Webster’s Third International Dictionary (1981),

“diagnosis” means “the art or act of identifying a disease from

its signs and symptoms.” Id. at 622. “Treatment” means “the

action or manner of treating a patient medically or surgically.”

Id. at 2435. “Care” means “provide for or attend to needs or

perform necessary personal services (as for a patient or

child).” Id. at 338. Likewise, in medical terms, “diagnosis”

means “[t]he determination of the nature of a disease.”

Stedman’s Medical Dictionary 428 (25th ed. 1990).

“Treatment” means “[m]edical or surgical management of a

patient.” Id. at 1626. And “care” means “the application of

knowledge to the benefit of . . . [an] individual.” Id. at 249.

Id. at 1187.

The complaint at issue in this case alleges the decedent sustained

injuries while she was in the hospital being treated for her COPD. During

the course of her treatment, and while she was being transported from

her gurney to an x-ray table by hospital employees and/or agents, she

was dropped and injured. As such, this case is very similar to Stubbs II.

In that case, we held the trial court correctly applied the Chapter 766 pre-

suit requirements to a complaint that alleged “[a] hospital orderly . . .

instructed [the appellant] to move from a test bed to a gurney and that she

fell while attempting this due to [the orderly’s] negligence in failing to

exercise reasonable care in assisting her and in failing to prevent her fall.”

Stubbs II, 78 So. 3d at 70, 71.

We are aware that our holding in Stubbs II was based in part upon

discovery which revealed that the “orderly” referenced in the complaint

“was a nurse, not an orderly” and the court’s decision referenced the

nurse’s “provision of medical care and services.” Id. at 71. Moreover,

Judge May’s concurring opinion presents “[her] view [that] once a medical

procedure has begun, whatever happens during that procedure should be

subject to the requirements for filing a medical negligence action if the

allegations are directed at medical personnel.” Id. at 72 (May, J.,

concurring) (emphasis added). In the instant case, we do not know if the

individuals who were transporting the decedent were doctors, nurses,

“transport tech,” or orderlies. However, we find that is not determinative,

as the complaint itself leads to the conclusion that these hospital

employees or agents were engaged in “the rendering of . . . medical care or

services” in that they were involved in lifting the decedent from the

transport gurney and placing her on the x-ray table as part of a medical

procedure (medical imaging by use of x-rays). As such, they were providing

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for or attending to the patient’s needs and/or performing “necessary

personal services.” Silva, 601 So. 2d at 1187.

Our conclusion finds support in the case law addressing this issue that

found that the complaint constituted a claim of medical negligence:

Stubbs II, 78 So. 3d at 71-72 (patient was being moved from a “test bed”

to a gurney); Indian River Memorial Hospital, 44 So. 3d at 238 (patient fell

out of a stretcher and the medical negligence related to the failure to

properly secure her on the stretcher). See also S. Miami Hosp. v. Perez, 38

So. 3d 809, 812 (Fla. 3d DCA 2010) (claim for damages attributable to

patient’s fall from a hospital bed in the critical care unit deemed a medical

negligence action); Neilinger v. Baptist Hosp. of Miami, Inc., 460 So. 2d 564,

566 (Fla. 3d DCA 1984) (patient “was descending from an examination

table under the direction and care of hospital employees”); Corbo v. Garcia,

949 So. 2d 366, 368-69 (Fla. 2d DCA 2007) (plaintiff was injured while

connected to physical therapy “electric stimulation” machinery that was

allegedly not properly maintained); Goldman v. Halifax Med. Ctr., Inc., 662

So. 2d 367, 368 (Fla. 5th DCA 1995) (the complaint alleges that the

operator of mammographic equipment “negligently applied excessive

pressure and caused one of [the plaintiff’s] silicone breast implants to

rupture” and that the equipment had not been properly calibrated); St.

Anthony’s Hosp., Inc. v. Lewis, 652 So. 2d 386, 387 (Fla. 2d DCA 1995)

(“The duty of the hospital to select and review health care personnel arises

under the medical malpractice statute [and] the negligent medical

treatment ‘is both necessary to the claims against the [hospital] and

inextricably connected to them.’”) (quoting Martinez v. Lifemark Hosp. of

Fla., Inc., 608 So. 2d 855, 857 (Fla. 3d DCA 1992)).

The cases in which the court found that the claims related to “ordinary”

negligence are markedly different: Quintanilla v. Coral Cables Hosp., Inc.,

941 So. 2d 468, 470 (Fla. 3d DCA 2006) (nurse spilled hot tea on patient);

Mobley v. Gilbert E. Hirschberg, P.A., 915 So. 2d 217, 219 (Fla. 4th DCA

2005) (concluding the medical treatment had not begun when the plaintiff

was hit in the head with a dental x-ray machine); Tenet St. Mary’s, Inc. v.

Serratore, 869 So. 2d 729 (Fla. 4th DCA 2004) (patient injured when

hospital employee, attempting to return the patient’s chair to an upright

position by kicking the footrest, inadvertently kicked the patient); Lynn v.

Mount Sinai Med. Ctr., Inc., 692 So. 2d 1002, 1004 (Fla. 3d DCA 1997)

(finding that the “regimented collection of urine samples is not a ‘medical

service’”). It is further noted that none of these “ordinary negligence”

decisions were predicated on the negligent employee’s job title or

responsibilities, i.e. whether they were “medical personnel.”

Conclusion

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We find that the instant action arises out of the provision of medical

care and is “directly related to the improper application of medical services

and the use of professional judgment or skill.” See Stubbs II, 78 So. 3d at

70 (internal quotations and citations omitted). Accordingly, the trial court

correctly dismissed the complaint by applying the pre-suit requirements

of Chapter 766, and we affirm.

Affirmed.

GROSS and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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