SOUTH BROWARD HOSPITAL DISTRICT v. ROBERTO CORTES, as Personal Representative of the Estate of DANIELA CORTES

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

HENDERSON BEHAVIORAL HEALTH, INC., SOUTH BROWARD

HOSPITAL DISTRICT d/b/a MEMORIAL HEALTHCARE SYSTEM, and

d/b/a MEMORIAL REGIONAL HOSPITAL,

Petitioners,

v.

ROBERTO CORTES, as Personal Representative of the

ESTATE OF DANIELA CORTES,

Respondent.

Nos. 4D20-650 and 4D20-651

[May 20, 2020]

Consolidated petitions for certiorari to the Circuit Court for the

Seventeenth Judicial Circuit, Broward County; Michael A. Robinson,

Judge; L.T. Case No. CACE19-003376(13).

Joshua B. Walker and Eric J. Netcher of Walker, Revels, Greninger &

Netcher, PLLC, Orlando, for petitioner Henderson Behavioral Health.

M. Katherine Hunter and Eric D. Freedman of Chimpoulis & Hunter,

P.A., Plantation, for petitioner South Broward Hospital District.

Alberto E. Lugo-Janer of CPLS, P.A., Orlando, for respondent.

PER CURIAM.

In these consolidated cases, Defendants - Henderson Behavioral

Health, Inc. and the South Broward Hospital District - petition for

certiorari review of orders denying their motions to dismiss Plaintiff’s

complaint for failure to comply with the presuit requirements for bringing

a medical malpractice action. We agree with Defendants that the

complaint sounds in medical negligence and that the trial court departed

from the essential requirements of law in denying the motions to dismiss.

The personal representative of the deceased’s estate filed suit against

Defendants alleging negligence. According to the complaint, the deceased

was transferred from a hospital operated by the South Broward Hospital

District to a residential treatment facility operated by Henderson

Behavioral Health. When she was transferred, the deceased was being

administered seven medications by the hospital. The hospital provided

the treatment facility with prescriptions for the medications but not the

medications themselves. The facility did not administer the medications,

and the deceased died four days after the transfer allegedly from “a severe

withdrawal syndrome.” The complaint claims that the hospital and facility

were negligent and knew or should have known that suddenly failing to

administer any or all of the medications to the deceased was likely to cause

her “to suffer severe adverse withdrawal symptoms, including life

threatening heart arrhythmias and seizures.”

Defendants moved to dismiss Plaintiff’s complaint for failure to comply

with the presuit requirements for bringing a medical malpractice action

under Chapter 766, Florida Statutes (2017). Plaintiff opposed the motion

arguing that the claim alleged ordinary negligence. The trial judge denied

the motions to dismiss because the complaint alleged ordinary negligence,

and the judge believed there was doubt as to whether the claim was for

ordinary negligence or medical malpractice. See J.B. v. Sacred Heart Hosp.

of Pensacola, 635 So. 2d 945, 947 (Fla. 1994) (“If there is doubt as to the

applicability of [the medical malpractice statute], the question is generally

resolved in favor of the claimant.”). The judge noted, however, that

Defendants’ arguments were “well-taken” and that it would be a “close call”

after discovery. Defendants timely petitioned for certiorari review.

Certiorari review of the denial of the motion to dismiss is permitted “to

ensure that the procedural aspects of the presuit requirements [of the

medical malpractice statute] are met.” Williams v. Oken, 62 So. 3d 1129,

1137 (Fla. 2011). A provider suffers irreparable harm when subjected to

suit where the procedural aspects of the presuit requirements of the

statute have not been followed. Palms W. Hosp. Ltd. P’ship v. Burns, 83

So. 3d 785, 788 (Fla. 4th DCA 2011) (“Irreparable 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.”). Thus, we have discretionary

jurisdiction.

“The determination of whether a complaint alleges a claim for medical

malpractice is a legal one and is, therefore, reviewed de novo.” Nat’l Deaf

Acad., LLC v. Townes, 242 So. 3d 303, 308 (Fla. 2018). A “‘[c]laim for

medical negligence’ or ‘claim for medical malpractice’ means a claim,

arising out of the rendering of, or the failure to render, medical care or

services.” § 766.106(1)(a), Fla. Stat. (2016).

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[F]or a claim to sound in medical malpractice, the act from which

the claim arises must be directly related to medical care or

services, which require the use of professional judgment or skill.

This inquiry involves determining whether proving the claim

requires the plaintiff to establish that the allegedly negligent act

“represented a breach of the prevailing professional standard of

care,” as testified to by a qualified medical expert.

Nat’l Deaf Acad., LLC, 242 So. 3d at 311–12.

We have no difficulty or doubt in concluding that Plaintiff’s claims sound

in medical negligence. The acts from which the claims arise relate to “the

failure to render, medical care or services.” § 766.106(1)(a). To prove the

claims, Plaintiff must show that the hospital and treatment facility

breached the professional standards of care in failing to ensure that

Plaintiff received her medications and failing to recognize the danger of

withdrawal symptoms. The trial court clearly departed from the essential

requirements of law in denying the motions to dismiss. Accordingly, the

petitions are granted, and the trial court’s orders are quashed.

Petitions granted.

WARNER, KLINGENSMITH and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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