The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARTIN MEMORIAL HEALTH SYSTEMS, INC., d/b/a
CLEVELAND CLINIC MARTIN HEALTH, and
MARTIN MEMORIAL MEDICAL CENTER, INC., d/b/a
CLEVELAND CLINIC MARTIN NORTH HOSPITAL,
not for profit corporations,
Petitioners,
v.
VINCENT GORHAM, III, as Personal Representative of
the ESTATE OF EILEEN GORHAM, decedent,
Respondent.
No. 4D21-2949
[April 20, 2022]
Petition for writ of certiorari to the Circuit Court for the Nineteenth
Judicial Circuit, Martin County; Gary L. Sweet, Judge; L.T. Case No. 21-
000488CAAXMX.
Michael R. D’Lugo of Wicker Smith O’Hara McCoy & Ford, P.A.,
Orlando, for petitioners.
Daniel S. Rosenbaum, Steven R. Braten and Dina L. Rosenbaum of
Rosenbaum PLLC, West Palm Beach, for respondent.
KUNTZ, J.
Martin Memorial Health Systems, Inc., and Martin Memorial Medical
Center, Inc. (“Martin Memorial”), petition for a writ of certiorari, requesting
we quash the circuit court’s order denying their motion to dismiss the
medical negligence lawsuit which Vincent Gorham, III filed, as personal
representative of the Estate of Eileen Gorham. Martin Memorial argues
that Gorham failed to satisfy pre-suit requirements for bringing a medical
negligence action. In response, Gorham asserts the lawsuit involves a
claim of ordinary negligence, not medical negligence, rendering the pre-
suit requirements inapplicable. We grant the petition, quash the order
denying Martin Memorial’s motion to dismiss, and direct the circuit court
to enter an order granting Martin Memorial’s motion to dismiss.
Background
This lawsuit involves the unfortunate death of Eileen Gorham. After
her death, her son Vincent Gorham, III, as personal representative, filed
suit seeking damages allegedly arising from Martin Memorial’s
“carelessness and negligence.”
Vincent Gorham alleged that Eileen Gorham’s children brought her to
Martin Memorial because she was ill. Allegedly, Eileen arrived at the
hospital with a walker, which she required to walk, but the hospital did
not “let [her] keep [her] own walker.” 1 More than once, Eileen’s children
told the nursing staff that she required a walker and could not walk
without one. In response, the nursing staff said they would either “provide
one” or that the nurses “would take care of it.” A nurse also told the
children that Eileen’s bed had an alarm that would ring if she tried to get
off the bed.
The night after she was admitted, Eileen fell while trying to get to the
bathroom. Her daughter was called and informed about the fall and told
that Eileen had a “slight fracture.” Three weeks later, Eileen’s treating
orthopedic surgeon informed her children that she sustained three
fractures of her pelvis.
Eileen Gorham died shortly after, and the injuries sustained from the
fall were allegedly a substantial cause of her death.
Analysis
i. Chapter 766’s Pre-suit Requirements
In Florida, “[n]o action shall be filed for personal injury or wrongful
death arising out of medical negligence, whether in tort or in contract,
unless the attorney filing the action has made a reasonable investigation
as permitted by the circumstances to determine that there are grounds for
a good faith belief that there has been negligence in the care or treatment
of the claimant.” § 766.104(1), Fla. Stat. (2019).
A claimant is also required “to ascertain that there are reasonable
grounds to believe that: (a) Any named defendant in the litigation was
negligent in the care or treatment of the claimant; and (b) Such negligence
1Vincent Gorham’s explained to the circuit court that Eileen Gorham “came in
with a walker” and that “the family explained to the emergency room people that
she would need a walker ‘cause they don’t let you keep your own walker.’”
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resulted in injury to the claimant.” § 766.203(2)(a)-(b), Fla. Stat. (2019).
That same subsection requires the claimant to provide corroboration of
the reasonable grounds to initiate the litigation by submitting “a verified
written medical expert opinion from a medical expert as defined in s.
766.202(6). . . .” Id.
Finally, after obtaining the pre-suit corroboration required by section
766.203(2), “and prior to filing a complaint for medical negligence, a
claimant shall notify each prospective defendant by certified mail, return
receipt requested, of intent to initiate litigation for medical negligence.” §
766.106(2)(a), Fla. Stat. (2019).
These pre-suit requirements “apply to all medical negligence claims and
defenses,” section 766.203(1), Florida Statutes (2019), and when a
claimant fails to satisfy these requirements, “the court shall dismiss the
claim.” § 766.206(2), Fla. Stat. (2019).
ii. Is This a Claim for Medical Negligence?
Vincent Gorham failed to satisfy chapter 766’s pre-suit requirements.
But was he required to do so? He thinks not, explaining to the circuit
court that he “did not comply with the statutory pre-suit provisions
because the acts . . . did not arise out of the medical care and treatment
for which the decedent was admitted, but out of ordinary negligence.” If
compliance was required, we must quash the order denying Martin
Memorial’s motion to dismiss.
The pre-suit requirements apply if the claim was one for medical
negligence. And to be a claim for 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.” Nat’l Deaf Acad., LLC v.
Townes, 242 So. 3d 303, 305 (Fla. 2018). In other words, medical
negligence claims are limited to those that directly relate to medical care
or services. Id. at 314.
We explored a similar question in Indian River Memorial Hospital v.
Browne, 44 So. 3d 237 (Fla. 4th DCA 2010). In Browne, while at the
emergency room, the patient “fell off a stretcher and suffered head injuries
that caused his death.” Id. at 238. The estate sued the hospital, alleging
the patient was “admitted to the emergency room in a disoriented and
confused state and the hospital improperly supervised him and left the
bed’s guardrail unsecured.” Id. The hospital moved to dismiss because
the plaintiff did not satisfy the pre-suit notice requirements for a medical
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negligence action. Id. The circuit court denied the motion and the hospital
petitioned for writ of certiorari. Id. In granting the petition, we explained:
The standard of care for the hospital’s treatment of Browne is
based in part on the hospital’s evaluation of his medical
condition when he was admitted to the emergency room.
Another aspect of plaintiff’s claim is that the hospital failed to
implement adequate procedures to protect emergency room
patients from falling from hospital beds. The adequacy of the
hospital’s procedures depends on the prevailing professional
standard for managing and supervising those admitted to
emergency rooms. These types of issues arise out of the
rendering of, or the failure to render, medical care or services.
Id. at 238–39. We concluded “that the complaint is one of ‘medical
negligence’ under section 766.106(1)(a).” Id. at 239.
In Townes, the Florida Supreme Court discussed our decision in
Browne. 242 So. 3d at 312 n. 6. The court explained that Browne, and
cases like it, “fall into a gray area.” Id. And, “[w]hether the kinds of claims
presented in those cases sound in ordinary or medical negligence depends
on both the specific circumstances under which the injury occurred and
the allegations in the pleadings.” Id.
After Townes, we reviewed a case with similar issues in North Broward
Hospital District v. Slusher, 279 So. 3d 162 (Fla. 4th DCA 2019). In
Slusher, the issue was “whether a nurse who allegedly caused a patient,
designated as a ‘fall risk,’ to fall while helping the patient out of his hospital
bed sounds in medical negligence.” Id. at 163. The hospital argued that
“the present claim involves the sufficiency of the nurse’s supervision of an
admitted patient who was deemed to be a ‘fall risk’ and that the plaintiff
will have to rely on the professional standard of care that exists for nurses
transferring patients from beds.” Id. at 164. We agreed with the hospital,
granted the petition, and explained that “[t]he alleged exercise of
professional judgment here, while arguably also involving common sense,
will depend on the standard of nursing care in transferring a patient from
the hospital bed.” Id.
We distinguish this case from those cases upon which Vincent Gorham
relies, including Feifer v. Galen of Florida, Inc., 685 So. 2d 882 (Fla. 2d
DCA 1996). The plaintiff in Feifer entered the hospital with his wife and
was told by an “admission area employee” that the husband and wife
would have to walk to the various areas of the building on their own power.
Id. at 883. While walking back from the various areas of the premises, the
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plaintiff fell to the floor and suffered a broken hip. Id. at 884. The plaintiff
sought damages for the actions of “nonprofessional employees” before any
medical care was provided. Id.
Later, the Second District distinguished Feifer in Corbo v. Garcia, 949
So. 2d 366, 370 (Fla. 2d DCA 2007). The Second District wrote that unlike
in Feifer, the plaintiff in Corbo “[could not] show negligence without
showing that petitioners were negligent in their medical treatment of [her].”
Id. While the medical negligence in Feifer “did not directly relate to the
rendering of medical treatment,” in Corbo the “medical negligence
standard of care . . . must be proved.” Id. Unlike in Feifer, in Corbo, the
claim involved more than just the failure to maintain the premises. Id.
This case falls within the gray area discussed in Townes. 242 So. 3d
at 312 n.6; see also Slusher, 279 So. 3d at 162 (“These allegations . . . fall
within that ‘gray area’ identified in Townes.”). Like the plaintiff’s claim in
Slusher, Vincent Gorham’s claim involves the nurses’ professional
standard of care. He alleged that Martin Memorial breached a duty “by
failing to provide [the patient with] a walker, even after it was repeatedly
requested by her children; by failing to put a ‘Fall Risk’ wrist band on [the
patient]; failing to put ‘Fall Risk’ stickers in the room; failing to put ‘Fall
Risk’ placards, even when requested by [the patient’s] children, failing to
put ‘Fall Risk’ notations on the Board in [the patient’s] room.” The decision
to give (or take away) a device to help the patient walk (and not fall) sounds
in medical negligence and was directly related to the use of professional
judgment or skill. See Corbo, 949 So. 2d at 369 (citation omitted). And
the claims challenging the use of that professional judgment will be
decided based on the standard of nursing care.
Conclusion
Putting aside the labels, the complaint alleged Eileen Gorham fell
because of negligent nursing conduct. As a result, Vincent Gorham
needed to comply with chapter 766’s pre-suit notice requirements.
Because he admittedly failed to do so, we grant the petition, quash the
circuit court’s order denying Martin Memorial’s motion to dismiss, and
direct the circuit court to enter an order granting Martin Memorial’s
motion to dismiss.
MAY and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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