This case arose from the alleged negligence of several health care providers in connection with the obstetrical care and treatment involving a premature birth. Upon birth, the child had severe neurological impairments which the parents alleged were caused by the negligence of her physicians, the hospital and the hospital’s employees. The hospital contended that neither it nor its employees were negligent. The child will require 24-hour care for the rest of the child’s life.

It was alleged that the health care providers treating the infant also failed to transfer the child to a Level III facility equipped to handle a premature birth of less than 33 weeks’ gestational age. The child was born at 26 weeks’ gestational age.

The child has severe neurological impairments that render the child physically unable to do basic things; the child will be fully dependent on others for the rest of the child’s life and will need 24-hour care. The parents alleged that the child’s neurological impairments were caused by the negligence of her physicians, hospital and hospital employees. The hospital contended that neither it nor its employees were negligent.

The jury determined that the total damages in the amount of $13,550,000, including $1,250,000, in noneconomic damages, and that the child suffered total damages in the amount of $9,637,134, including $4,000,000 in noneconomic damages.

After trial, the hospital filed a motion to reduce jury verdict pursuant to section 766.118(3), Florida Statutes (2010), claiming that the hospital’s liability for noneconomic damages should be limited to $1.5 million.

In denying the hospital’s request to apply the statutory cap for noneconomic damages provided for in section 766.118(3), the trial court relied on North Broward Hospital v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015), review granted, No. SC15-1858.

On appeal, the hospital contends that the statute is constitutional and that the Fourth District in Kalitan improperly extended the supreme court’s holding in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), to personal injury medical malpractice cases. The claimant’s lawyers respond that the trial court properly applied Kalitan, which in turn properly extended McCall to personal injury cases.

The issue before the Court was whether the cap created by F.S.766.118 is unconstitutional under Florida’s equal protection clause.

In such circumstances, medical malpractice claimants do not receive the same rights to full compensation because of arbitrarily diminished compensation for legally cognizable claims.

Further, the statutory cap on wrongful death noneconomic damages does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida. id. at 901,919-20.

The court reasoned that the statutory cap “irrationally impacts circumstances which have multiple claimants/survivors differently and far less favorably than circumstances in which there is a single claimant/survivor” because “under section 766.118, the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for those losses.” Id. at 901-02 at 921.

However, in Kalitan, 174 So. 3d at 404, the Fourth District considered whether, in light of McCall, “the caps on noneconomic damage awards in personal injury medical malpractice cases are similarly unconstitutional.” (Emphasis added.) Recognizing that “section 766.118 applies to both personal injury and wrongful death actions,” the court went on to conclude that “the section 766.118 caps are unconstitutional not only in wrongful death actions [ ] but also in personal injury suits as they violate equal protection.” 174 So. 3d at 411.

The court reasoned that there is no real distinction between the situation in that case — a single claimant in a personal injury case who suffers noneconomic damages in excess of the caps — and the situation in McCall — multiple claimants in a wrongful death case.

The court concluded that under section 776.118, “injured parties with noneconomic damages in excess of the caps are not fully compensated.” Kalitan, 174 So. 3d at 411.

It is likely that the Florida Supreme Court will ultimately rule on this issue, but for today, there is support for an interpretation of the law that all claimants who have been injured because of the acts and omissions of a health care provider, an average person or by powerful corporate entities, all will be required to pay the full measure of damages, harms and losses that are determined by a jury to have been suffered by the consumer.

Insurance companies routinely don’t want to pay the future medical expenses of an injured person choosing to take the position that government programs exist that can cover any future medical treatment if it is needed.

If your personal injury claim cannot be settled, the defense will seek to admit evidence of the vastly reduced payments that are made to doctors that participate in accepting Medicare and Medicaid payments.

The Florida Supreme Court has expressed held that any such admission of evidence is “speculative” reasoning the government programs may not always be there or the benefits further restricted or limited.

“The collateral source rule functions as both a rule of damages and a rule of evidence,” allowing a plaintiff to recover full compensatory damages despite any compensation obtained from a source other than the tortfeasor and prohibiting the introduction of evidence of such collateral payments. Gormley v. GTE Prods. Corp., 587 So. 2d 455, 457 (Fla. 1991).

Florida courts have reasoned that “introduction of collateral source evidence misleads the jury on the issue of liability,” as it may lead the jury to assume that a party already has been adequately compensated for his or her injury or that a plaintiff is seeking an undeserved windfall.

The Supreme Court reversed the Second DCA and held that evidence of future benefits from Medicare or Medicaid is inadmissible as collateral sources. The Court reasoned that the right of reimbursement meant that these government programs were not free and/or unearned.

The Court further noted the future availability of such programs is speculative and that allowing tortfeasors to introduce evidence of payments from these governmental programs would allow them a windfall. While we believe the trial court properly barred evidence of benefits under the test espoused in Stanley, the Florida Supreme Court’s opinion in Joerg provides further support for the conclusion that the trial court properly excluded this evidence.

The 2016 case addressed a case involving a child that was admitted to Bethesda Hospital in Boynton Beach in August 2006. The child presented with a high fever, vomiting, and a stiff neck.

After two weeks of treatment at Bethesda Hospital, the child’s condition worsened and he was transferred to Miami Children’s Hospital. Upon arrival at Miami Children’s, it was determined that the child had suffered a stroke. The physicians at Miami Children’s ran additional tests, which indicated the presence of both herpes and Epstein-Barr viruses. An expert witness testified that “more likely than not this child . . . would not have suffered a stroke if the initial herpetic infection was treated earlier.”

Although the child’s physical development was largely unaffected by the stroke, the child’s neurological and behavioral development was severely impacted. The plaintiff introduced testimony that the child is unable to communicate or follow directions, engages in self-injurious behaviors, suffers from morbid obesity and an insatiable appetite, and has little to no awareness for his own safety such that he requires constant supervision. A witness also opined that the child has “a total disability that is permanent” and that he would be unable to ever live independently.

The jury returned a verdict in favor of the child and the Mother, finding Appellant to be seventy-five percent liable for the child’s injuries. The jury awarded the child $16,450,104.74 in economic damages, including $2,173,500 for medical care until the child’s eighteenth birthday and $13,395,300 for care thereafter. The jury also awarded $6 million each to both the child and the Mother for past and future noneconomic damages. In light of the statutory cap on medical malpractice noneconomic damages, the trial court limited the noneconomic damage award to $500,000 per claimant and entered a final judgment reflecting this change.

The appellate court reversed the trial court’s reduction of non-economic damages and reinstated the verdict. The appellate court stated that the medical malpractice caps on noneconomic damages, found in section 766.118(2), are unconstitutional and should not have been applied. On remand, the trial court must amend the final judgment to reflect the full amount of noneconomic damages awarded by the jury.

State legislatures have an ability to keep the lawyers from taking cases to court on behalf of the poor and powerless in medical malpractice cases. All the legislators have to do is created a very high standard of care that can’t be breached.

This prevents the lawyers from finding a doctor to say that the conduct of the doctor that treated the poor person or the poor person’s child did so in “bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Rather than keeping the standard of care to what the reasonably competent physician in the community would have done, the standard is that of culpable negligence.

Florida Statute 766.118 (6) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF A PRACTITIONER PROVIDING SERVICES AND CARE TO A MEDICAID RECIPIENT.—Notwithstanding subsections (2), (3), and (5), with respect to a cause of action for personal injury or wrongful death arising from medical negligence of a practitioner committed in the course of providing medical services and medical care to a Medicaid recipient, regardless of the number of such practitioner defendants providing the services and care, noneconomic damages may not exceed $300,000 per claimant, unless the claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner.

A practitioner providing medical services and medical care to a Medicaid recipient is not liable for more than $200,000 in noneconomic damages, regardless of the number of claimants, unless the claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner.

The fact that a claimant proves that a practitioner acted in a wrongful manner does not preclude the application of the limitation on noneconomic damages prescribed elsewhere in this section. For purposes of this subsection:(a) The terms “medical services,” “medical care,” and “Medicaid recipient” have the same meaning as provided in s. 409.901.

(b) The term “practitioner,” in addition to the meaning prescribed in subsection (1), includes any hospital, ambulatory surgical center, or mobile surgical facility as defined and licensed under chapter 395.

(c) The term “wrongful manner” means in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, and shall be construed in conformity with the standard set forth in s. 768.28(9)(a).

This effectively means that doctors don’t have to treat Medicaid patients with the same regard to their safety as the doctor would if he had a private pay patient or a patient insured by one of the many health care organizations.

The same is true whether the patient is delivering a new baby or being treated in the emergency room after an motor vehicle collision.

With all the talk about patient’s rights that politicians speak on both sides of the aisle, the consumer doe snot know of such laws that are on the books that actually threaten their lives the health and well being of their family members and their ability to seek full and fair financial compensation when injured by medical malpractice.

Plaintiffs filed a medical malpractice lawsuit against Orlando Health, South Lake Hospital, Inc., Dr. Jorge Florin, and Dr. Karl Hagen. The complaint alleged that Hagen operated on Mohan at South Lake Hospital and, during the operation, mistakenly removed his ureter rather than his appendix.

The counts against Orlando Health were for direct liability, joint liability, and vicarious liability.

Orlando Health moved to dismiss all counts, and the trial court granted the motion with prejudice and later entered a final judgment thereon.

Plaintiffs argue that the trial court reversibly erred by dismissing all counts of their complaint against Orlando Health, because the complaint stated viable causes of actions for direct liability, joint liability, and vicarious liability. We agree.

NEGLIGENT CREDENTIALING BY DEFENDANT OH. . .

30. At all times material hereto, defendant OH, by virtue of its assumption of South Lake Hospital’s governance as described herein, had the duty and responsibility to exercise reasonable care for the safety and quality of care, treatment, and services provided at South Lake Hospital to the citizens of this community including the plaintiffs MARK R. MOHAN and ROHINI BUDHU. Further, defendant OH had the duty and responsibility to exercise reasonable care in providing oversight to the medical staff’s recommendations to the hospital’s governance on the credentialing and re-credentialing of the medical staff physicians including HAGEN. This would necessarily include familiarization with the background and performance of any physician opting to apply, or re-apply for privileges at the hospital, including review of any/all disciplinary proceedings and adverse incidents reportedly involving the subject physician, and corresponding action in recommending rejection of, and/or in fact, rejecting a physician’s reapplication for privileges where such physician fails to meet minimum community standards.

Orlando Health moved to dismiss this count, arguing that the parties’ Pre-Organizational Agreement and/or Management Agreement, which were attached as exhibits to the amended complaint, demonstrated “that South Lake, not Orlando Health, was solely responsible for all decisions related to the medical staff and credentialing.” As for the Pre-Organizational Agreement, Orlando Health cited to paragraph 7.6 which sets forth the following “Post-Closing Covenants”:

Plaintiffs argue that the provisions of the Pre-Organizational and Management Agreements do not conclusively establish that South Lake was solely responsible for the credentialing, but instead, the documents demonstrate that Orlando Health exercised “a great deal of control over the hospital’s operations, including oversight of the medical staff.” See generally Magnum Capital, LLC v. Carter & Associates, LLC, 905 So. 2d 220, 221 (Fla. 1st DCA 2005) (explaining that only when documents attached to a complaint conclusively negate a claim can the pleadings be dismissed).

In the amended complaint, Plaintiffs averred, inter alia, that “defendant OH undertook to manage and operate South Lake Hospital in all material ways, including but not limited to risk management, quality assurance, credentialing oversight, and human resource department functions.” They cited to the Management Agreement which states that “ORHS shall be responsible for all day-to-day management of the Hospital, including . . . personnel (including selection, testing, training and education of personnel).” In that agreement, Orlando Health’s duties vis-à-vis South Lake Hospital were stated as follows:

3. Duties of ORHS. South Lake hereby retains ORHS to manage and operate the Hospital in the name, for the account, and on behalf of South Lake. ORHS shall permit South Lake to integrate specific operations of the Hospital into the ORHS system as practical and appropriate, as mutually determined by South Lake and ORHS, with ORHS’s duties to include, as mutually determined to be practical and appropriate by ORBS and South Lake, provision of the following services, resources, consultations, and support in order to permit the Hospital to provide quality healthcare consistent with the policies and directives of the South Lake Board of Directors, the financial resources of the Hospital, the competitive marketplace and applicable laws:

(a) Operational Management. ORHS shall be responsible for all day-to-day management of the Hospital, including without limitation, annual budget and charges, data processing, purchasing (including the purchasing of insurance on a group basis), warehousing, billing and collection, food, clinical, industrial engineering, laboratory, printing, communications, record center, personnel (including selection, testing, training and education of personnel), and other services as agreed between ORHS and South Lake.

(b) Employees. South Lake, in consultation with ORHS, shall determine the number, qualifications, and duties of personnel employed at the Hospital. South Lake, in consultation wìth ORHS, shall have authority to hire and discharge all employees of the Hospital, and such authority may be delegated to appropriate employees. Unless otherwise agreed by ORHS and South Lake, employees employed at Hospital shall be employees of South Lake. ORHS and South Lake agree that the Chief Executive Officer of the Hospital (and other personnel as agreed in writing) shall be an ORHS Employee. Any decisions to hire or discharge the Chief Executive Officer or the Chief Financial Officer of the Hospital shall require separate approvals of the SLMH directors and the ORHS directors comprising South Lake’s Board of Directors.

We conclude that the allegations set forth in Plaintiffs’ complaint, when coupled with the language contained in the parties’ Management Agreement, fail to conclusively establish that Orlando Health was not involved in any credentialing decisions issued by South Lake Hospital. As such, the trial court erred in dismissing Count I of Plaintiffs’ complaint.

The trial court further dismissed claims for joint liability based on theories of partnership, purported partnership, joint venture, and joint enterprise. The court reasoned that a “cause of action based on a partnership, purported partnership, joint venture, or joint enterprise [could not survive,] as such a relationship between two non-profit corporations is a legal impossibility”. Plaintiffs challenge this ruling, asserting there is no legal support for the trial court’s “legal impossibility” ruling, and that the exhibits to their complaint do not conclusively establish that joint liability is not available in this case.

The amended complaint averred, in relevant part, that

[o]n or about April 10, 1995, defendant OH, along with South Lake Memorial Hospital, Inc. (SLMH), and the South Lake County Hospital District (the DISTRICT), entered into a partnership agreement, joint venture agreement, joint enterprise agreement, and/or joint ownership agreement (hereinafter the “joint enterprise”), for the operation of a pre-existing hospital facility known as South Lake Hospital, previously being operated by SLMH and the DISTRICT. The joint enterprise included the formation of a newly organized corporate entity now known as defendant SLHI, whereby the partners, joint venturers, and/or joint owners, placed themselves in a position to jointly and equally control such corporate entity.. . . .

At all times material hereto, defendant OH purported to the public to be a partner in the ownership, operation, and use of the hospital known as South Lake Hospital, by claiming such status on the Internet, its website, in print ads, television, radio, and in the use of its logos on buildings and uniforms utilized in its operations.

The counts at issue read, in pertinent part, as follows:

PARTNER LIABILITY OF DEFENDANT OH FOR THE NEGLIGENT ACTS OF THE PARTNERSHIP

By virtue of entering into a partnership agreement with SLMH and the DISTRICT, and by virtue of its status as a partner of such partnership, defendant OH is jointly and severally obligated for the tortious acts of the partnership, whether such torts were committed by either OH’s employees, SLMH’s employees, or the DISTRICT’s employees, or anyone employed under their control, or right to control, pursuant to Florida’s Revised Uniform Partnership Act of 1 995, § 620.8306 Fla. Stat.. . . .

PURPORTED PARTNER LIABILITY OF DEFENDANT OH FOR THE NEGLIGENT ACTS OF THE PURPORTED PARTNER. . . .

By virtue of purporting to be a partner in the ownership, operation, and use of South Lake Hospital as alleged in detail within paragraphs 10 and 17 herein, and by virtue of the detrimental reliance by plaintiffs MARK R. MORAN and his wife ROHINI BUDHU as alleged in detail within paragraph 18 herein, defendant OH is jointly and severally obligated for the tortious acts of the purported partnership.. . . .

JOINT VENTURER LIABILITY OF DEFENDANT OH FOR THE NEGLIGENT ACTS OF THE JOINT VENTURERS. . . .

By virtue of entering into a joint venture agreement with SLMH and the DISTRICT, defendant OH is jointly and severally obligated for the tortious acts of the joint venturers, whether such torts were committed by either OH’s employees, SLMH’s employees, or the DISTRICT’s employees, or anyone employed under their control or right to control. . .

JOINT ENTERPRISE LIABILITY OF DEFENDANT OH FOR THE NEGLIGENT ACTS OF THE JOINT ENTERPRISERS

By virtue of entering into a joint enterprise agreement with SLMH and the DISTRICT. Defendant OH is jointly and severally obligated for the tortious acts of the joint enterprisers, whether such torts were committed by either OH’s employees, SLMH’s employees, or the DISTRICT’s employees. or anyone employed under their control, or right to control.

AGREEMENT OF LEASE

THIS AGREEMENT OF LEASE (the “Lease”) IS MADE AS OF October 1, 1995, by SOUTH LAKE MEMORIAL HOSPITAL, INC. AND SOUTH LAKE COUNTY HOSPITAL DISTRICT (collectively referred to as “Landlord”), and SOUTH LAKE HOSPITAL, INC. (“Tenant”) . . . .

WHEREAS, Tenant was formed as a not-for-profit corporation jointly controlled by Landlord and Orlando Regional Healthcare System, Inc. (“ORHS”) to own and operate hospital facilities known as South Lake Memorial Hospital . . . . and to construct, own, and operate a new replacement hospital on vacant land.

(emphasis added). Thus, at least two corporate documents contained in Plaintiffs’ exhibits to their amended complaint purport to establish that South Lake Hospital was formed as a corporation jointly owned, operated, and/or controlled by Orlando Health. As such, Orlando Health is unable to succeed on its tipsy coachman theory because it has failed to sustain its burden of proving that the exhibits to the amended complaint conclusively demonstrate that the relationship between South Lake Hospital and Orlando Health was neither a partnership nor a joint venture.

Count IX of Plaintiffs’ amended complaint alleged a claim for joint liability based on the theory of joint ownership. The trial court dismissed this count concluding that, as a matter of law, Orlando Health could not be a “beneficial” owner since non-profit hospitals do not have owners. However, the exhibits attached to the amended complaint (referenced above) support Plaintiffs’ joint-liability theory. As such, dismissal of this count was error.

The amended complaint further averred the following facts as grounds for establishing vicarious liability against Orlando Health based on its employment relationship with South Lake Hospital’s CEO and three members of the hospital’s board of directors:

OH was given three (3) of the six (6) board of director seats of defendant SLHI, along with the authority to hire and terminate the hospital’s Chief Executive Officer (CEO), a position exclusively reserved for OH to fill; a position at all times material hereto, held by an OH employee;. . . .

Further, by reserving the CEO position, and therefore, the President of SLHI’s position for itself, and by reserving three (3) of the six (6) SLHI Board of Director positions, defendant OH undertook to assume oversight and control over the credentialing process, and the ultimate granting of privileges at South Lake Hospital.. . . .

At all times material hereto, the three (3) OH employees, and the three (3) SLMH employees, accepting appointments to fill, and in fact filling, the six (6) SLHI Board of Director seats (three (3) being reserved for OH employees, and three (3) being reserved for SLMH employees), were acting in the course and scope of their agency relationship with OH and SLMH, respectively.

At all times material hereto, the CEO of defendant SLHI, employed by defendant OH, was acting in the course and scope of her employment relationship with defendant OH.

Upon information and belief, sometime in the year 2000, defendant HAGEN submitted for approval his application to be credentialed at South Lake Hospital. Such application was reviewed, and an investigation of his background was undertaken, and ultimately, his application was recommended for acceptance, whereupon at the highest levels of governance of South Lake Hospital, including oversight by three (3) of the six (6) SLHI Board of Directors, each an OH employee, HAGEN’s application was approved “without conditions.”

Count X of Plaintiffs’ amended complaint alleged a claim for vicarious liability as follows:

VICARIOUS LIABILITY OF DEFENDANT OH FOR THE NEGLIGENT ACTS OF IT EMPLOYEES

. . . .

At all times material hereto, the three (3) OH employees, and the three (3) SLMH employees, accepting appointments to fill, and in fact filling, the six (6) SLHI Board of Director seats (three (3) being reserved for OH employees, and three (3) being reserved for SLMH employees), were acting in the course and scope of their agency relationship with OH and SLMH, respectively.

At all times material hereto, the CEO of defendant SLHI, employed by defendant OH, was acting in the course and scope of her employment relationship with defendant OH.

The trial court summarily held that dismissal of Count X was warranted because Orlando Health cannot be held vicariously liable for the actions taken by the hospital’s CEO and board members. Plaintiffs challenge the court’s ruling, arguing that the record is undisputed that the CEO and three board members of South Lake Hospital are employed by Orlando Health and that, as a result, Orlando Health can be held vicariously liable for negligent acts committed by said employees. They cite to the fact that the amended complaint expressly alleged that South Lake Hospital’s CEO and board members were directly involved in negligently extending and renewing staff privileges to Dr. Hagen, and they maintain that Orlando Health failed to conclusively refute the allegation. Orlando Health responds that whether the CEO and the board members were employees of Orlando Health “is irrelevant” because, when making decisions relating to South Lake Hospital issues, they were not working within the course and scope of their employment with Orlando Health. However, Orlando Health fails to cite to any portion of the instant pleading to support this claim of fact. Accordingly, on the state of the instant pleading, the trial court erred in dismissing Count X because neither the amended complaint nor any exhibit to the amended complaint establishes that Orlando Health’s employees were not working within the course and scope of their employment with Orlando Health while also working for South Lake Hospital.

REVERSED and REMANDED.

Every state offering some form of governmental assistance known as Medicaid was previously able to collect 100 percent of the funds which were expended to a recipient when the beneficiary recovered any money from a motor vehicle collision, slip and fall or medical malpractice case.

The circuit courts of Florida now routinely see petitions filed by injured persons who have received Medicaid benefits and who have recovered money from a tort claim, seeking the court to “apportion ” the amount of money having to be paid to the state agency who is responsible for the payment and enforcement of liens to recover the funds paid out on behalf of receipts of Medicaid.

In one Florida case, a child suffered catastrophic injuries at birth. Her medical care related to these injuries was paid by Medicaid and Medicaid provided $360,741.48 in benefits. This medical malpractice action was brought to recover all of the child’s damages. After a lengthy jury trial in which the undersigned Judge presided, this action settled for a confidential amount1 just prior to the jury returning a verdict.

Plaintiffs filed a Petition to Determine Medicaid Lien requesting that this Court determine the appropriate payment of the Medicaid lien by determining the ratio the settlement bore to the total monetary value of Kaitlyn’s damages and applying this same ratio to the $360,741.48 claim for past medical expenses.

The Agency for Health Care Administration (“AHCA”) opposed this Petition. An evidentiary hearing was held on October 18, 2012. This Court by Order of October 22, 2012 denied Plaintiffs’ Petition based on the law as it stood at that time, and ordered the full payment of the $360,741.48 Medicaid lien within 30 days. Plaintiffs appealed this Order to the First District Court of Appeals, and after this Court denied Plaintiff’s Motion to Stay at hearing on January 10, 2013 Plaintiff paid $360,741.48 to AHCA.

The First District reversed this Court’s Order of October 22, 2012 based on new judicial precedent from the U.S. Supreme Court and various Florida appellate courts applying this new federal precedent. The First District directed that a supplemental hearing be held in which this Court may consider evidence in the record and as appropriate, any additional evidence.

At the October 18, 2012 hearing attorney Richard Collins provided testimony concerning the value of the injured child’s damages and at the January 27, 2015 hearing attorney Jay Manual also provided testimony concerning the value of child’s damages. AHCA did not present any evidence or witnesses at either hearing.

Based on the testimony and evidence presented, this Court finds that in the confidential settlement, the injured child has recovered only 32% of the total monetary value of her damages. Accordingly, she has only recovered 32% of her $360,741.48 claim for past medical expenses, or $115,437.27. This $115,437.27 represents her compensation for past medical expenses.

The formula for determining AHCA’s payment from a settlement at Section 409.910(11)(f), Florida Statutes, requires full payment of the $360,741.48 Medicaid lien, despite only $115,437.27 of the settlement representing Kaitlyn’s compensation for past medical expenses. However, as the Fifth and First Districts stated, “Ahlborn and Wos make clear that section 409.910(11)(f) is preempted by the federal Medicaid statute’s anti-lien provision to the extent it creates an irrebuttable presumption and permits recovery beyond that portion of the Medicaid recipient’s third-party recovery representing compensation for past medical expenses.” Davis v. Roberts, 130 So. 3d 264, 270 (Fla. 5th DCA 2013) [39 Fla. L. Weekly D1b] and Harrell, 143 So. 3d at 480. Accordingly, AHCA is entitled to recover from Kaitlyn’s settlement only the $115,437.27 which represents compensation for past medical expenses.

It is therefore ORDERED and ADJUDGED that:

1. The Petition to Determine Medicaid Lien is GRANTED;
2. The Agency for Health Care Administration is directed to accept $115,437.27 in satisfaction of its $360,741.48 Medicaid lien asserted against the child’s settlement;
3. Since the injured child paid $360,741.48 to the Agency for Health Care Administration, the Agency for Health Care Administration is directed to return $245,304.21 with interest, to the child’s Guardian Ad Litem.
4. The Guardian Ad Litem, is directed to deposit the amount received from the Agency for Health Care Administration less any fees and costs associated with this proceeding, in the Special Needs Trust established for the child’s benefit;
5. If it is necessary for the transcript from the January 27, 2015 hearing to be filed, the parties shall file an appropriate motion to seal the transcript prior to filing the transcript.

Many loved ones are in the care of caregivers in nursing homes and assisted living facilities. There is no more sacred trust than to delegate the care of a mother or father or spouse to the staff of these facilities.

We are all reassured that the RN on duty will be administering the medications that are required on a timely basis each and every day.

In one Florida case, the resident of the nursing home was approximately 66 years old when she died in 2000. Before her death, she was a resident of the Arbors, a skilled nursing home facility. Omnicare Inc. and Badger Acquisition of Tampa (collectively, Omnicare) had contracts with the Arbors to provide pharmaceutical dispensing and consulting pharmacy services.

After the resident’ss death, the Estate initially sought recovery through a wrongful death and survival action against the Arbors and another nursing home. The Estate alleged that the Arbors and the other nursing home caused the resident’s death.

A year later, the Estate initiated the present suit against Omnicare. In its amended complaint, the Estate alleged duties of reasonable care that Omnicare assumed in favor of the deceased resident was based on Omnicare’s contractual and legal duties to the Arbors.

The Estate alleged that Mrs. Johnson was a third-party beneficiary of the contract between the Arbors and Omnicare because she was a resident at the nursing home.

The Estate further alleged that Omnicare breached its duty of reasonable care in providing consultant pharmacy services, and as a proximate cause thereof, the deceased resident experienced pain and aggravation of existing medical conditions and ultimately died. The Estate alleged the following acts or omissions as breaches of duty in each count of the amended complaint:

Failing to appropriately monitor the dispensing of medication the resident;

Failing to appropriately monitor the proximity in which the same medication was dispensed for to the resident;

Failing to adequately monitor the resident’s medication administration;

Failing to appropriately monitor and address adverse effects and drug interactions of medications for the resident;

Failing to conduct a thorough and adequate monthly drug regimen review for the resident;

Failing to adequately and timely account, and reconcile, the controlled drugs to have been utilized for the resident

Failing to appropriately monitor and address the undermedication/overmedication of the resident;

Failing to adequately assess that the dosage of the medication administered was inappropriate for the resident;

Failing to timely report irregularities in the resident’s medication reviews to appropriate personnel; failing to adequately develop the appropriate policies and procedures relating to pharmacy services within the facility;

Failing to provide adequate in-service education and training to nursing home and pharmacy personnel; failing to properly hire, retain, train, and supervise a licensed consultant pharmacist to ensure that the residents, including the resident, received appropriate pharmacy services.

The heart of the Estate’s complaint, however, is that a different pharmacy function arises in a nursing home because the consultant pharmacist does not dispense or administer medications to nursing home residents. In support of this it argues the consultant pharmacist’s duty to the patient is to perform monthly reviews of the nursing home records, review medication and administration records, review drug regimen records of the patient, provide training and oversight, and establish procedures for the pharmacy.

What the Estate fails to recognize is that the recipients of these advisories are the medical director, the treating physician, the director of nursing, and the nursing staff, not the patient.

Moreover, establishing reliance in the present case would stretch the undertaker’s doctrine beyond that described in Clay. The Estate’s amended complaint alleged various failures on the part of Omnicare to monitor Mrs. Johnson’s medication regimen. However, the administratively mandated inherent benefit of additional drug regimen review does not, by itself, create a legal duty nor does it expand the consultant pharmacist’s role beyond that of an administrative advisor. Again, the Pharmacy Act specifically restricts a pharmacist from altering a prescriber’s directions, diagnosing or treating any disease, initiating any drug therapy, or practicing medicine. See § 465.003(13), Fla. Stat. (2001).

We conclude there was a nondelegable duty placed upon the physicians to properly prescribe Mrs. Johnson’s medication, upon the pharmacists to properly dispense the medication, and upon the nursing staff to properly deliver said medication to the resident could reasonably have relied on such roles for her healthcare. Nursing homes have a nondelegable duty to provide appropriate care to their residents. See NME Props Inc. v. Rudich, 840 So. 2d 309, 312-13 (Fla. 4th DCA 2003); c.f. U.S. Sec. Serv. Corp. v. Ramada Inn, Inc., 665 So. 2d 268, 270 (Fla. 3d DCA 1996) (holding that nondelegable duties derive from the idea that “one cannot contract away ultimate legal responsibility for certain tasks one is obligated to perform”).

We agree with the trial court’s holding that there is no duty assumed by Omnicare that “as a matter of law would flow to the benefit of the plaintiff” and would give rise to a private cause of action. While the “undertaker’s doctrine” may operate to create a legally recognizable duty in tort, it is not applicable on the facts of this case where the consultant pharmacist only undertook what was required by statute. The consultant pharmacist contracted with the Arbors to review drug regimens, to establish procedures and training related to the proper inventory, control, and delivery of the medications prescribed to the residents by treating physicians as part of the statutory requirement for nursing homes. Therefore, the consultant pharmacist’s obligations ran to the Arbors. In the absence of a legislatively created duty of care, we cannot enhance the consultant pharmacist’s contractual obligations to the Arbors into a legal duty owed to deceased resident.

In Florida a doctor or health care provider that says that your treating doctor did something to cause you injury, the person signing the affidavit has to meet certain statutory requirements in order to make such a criticism.

Dr. Plantz was advised by his patient’s lawyer that he was responsible for certain damages to his patient and that the patient intended to sue him at the end of the pre-suit period of 90 days.

Dr. Plantz’ lawyer filed a request to produce and motion to compel information as to the qualifications of Dr. Richard Dellerson who signed the affidavit stating that Dr. Plantz was guilty of medical malpractice.

As part of that challenge he apparently wishes to challenge the sufficiency of the credentials of the doctor who signed the presuit affidavit. Assuming that Dr. Plantz actually has the right to conduct discovery as to the qualifications and background of the physician who merely signed the presuit affidavit and further assuming that the requested information is not privileged, then an order denying Dr. Plantz’s pending motion to dismiss might constitute a failure to comply with the statutory presuit screening requirements under sections 766.203 and 766.206, Florida Statutes (2008).

If so, Dr. Plantz can challenge the denial of his discovery request following the denial of his pending motion as a violation of the presuit requirements. See Williams v. Oken, 62 So. 3d 1129, 1133-34 (Fla. 2011). In light of the holding and discussion in Williams, we are unconvinced that we have jurisdiction by way of a petition for writ of certiorari to review a nonfinal order denying or limiting discovery as to the sufficiency of the credentials of a presuit affiant prior to a ruling on the motion to dismiss.

The Estate filed a medical negligence and wrongful death complaint against Dr. Plantz, an emergency room physician. Dr. Plantz filed a motion to dismiss, which remains pending, asserting that the Estate did not comply with the presuit notice requirements of chapter 766.

Dr. Plantz specifically alleged that Dr. Dellerson, the affiant to the verified written medical expert opinion attached to the Estate’s notice of intent to initiate litigation, does not qualify as an expert because his credentials do not constitute substantial professional experience in providing emergency medical services under section 766.102(9).

He also alleged that Dr. Dellerson did not conduct a complete review of available records in forming his opinion corroborating the grounds asserted to support the Estate’s claim. See § 766.203(2).

Dr. Plantz commenced formal discovery concerning Dr. Dellerson’s credentials. After Dr. Dellerson had been twice deposed, apparently once for four hours and once for nine hours, Dr. Plantz requested nonparty hospitals to produce records of Dr. Dellerson’s staff status at those facilities. He also requested the Estate’s trial counsel to produce all previous notices of intent to initiate litigation containing verified written medical expert opinions signed by Dr. Dellerson.

The Estate objected, and Dr. Plantz filed a motion to determine the validity of that objection as well as a motion to compel production. Following a hearing, the circuit court entered an order sustaining the Estate’s objections and finding that the materials were privileged. Dr. Plantz then timely filed a petition for writ of certiorari to review this order.

To obtain certiorari review of a pretrial discovery order, “the petitioner must establish the following three elements:

(1) a departure from the essential requirements of the law,

(2) resulting in material injury for the remainder of the case

(3) that cannot be corrected on postjudgment appeal.” Williams, 62 So. 3d at 1132 (citations and internal quotations omitted).

The second and third elements are jurisdictional, and this court must first analyze the jurisdictional elements before it can consider whether the lower tribunal departed from the essential requirements of law. Id. If the petitioner fails to satisfy the jurisdictional elements, this court dismisses the petition rather than denying it. Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla. 2d DCA 1995).

It is unclear to this court whether Dr. Plantz has a legal right to engage in discovery as to the credentials of a person who merely signs a presuit affidavit and is not currently listed as an expert witness expected to testify at trial. Dr. Plantz has not cited any cases in which a trial court erred by denying such discovery. Assuming such discovery is available, we are also unclear as to the scope of that discovery and what discretion the trial court would have in limiting the discovery, especially in light of the prior depositions of Dr. Dellerson and the limited grounds for dismissal Dr. Plantz raised in his motion. Thus, it is arguable that we could deny this petition based on the first element discussed above.

You would think that leaving any surgical tool, clip, or device in a patient after completing the surgery would be a case that the consumer would always win. However, there are reported instances where leaving a foreign object in the patient did not result in a verdict for the consumer.

In one Florida case, a patient was admitted to the hospital for surgery. The procedure included placement of a drainage tube to evacuate postoperative fluid. The following day, a nurse came to the patient’s room to remove the drainage tube.

The patient’s wife was present in the room and saw the nurse pull the tube. The patient experienced no immediate discomfort, but a 4.25-inch section of the tube was unknowingly left inside him.

Approximately four months later, after the patient was continuing to suffer pain in the region, a CT scan revealed that a portion of the drain remained in his body. A second surgery was performed to remove the remaining piece of the drain.

Both the patient and his wife filed suit against the hospital alleging, among other claims, that ]

1) the tube was negligently removed with excessive speed and force, and

2) the nurse negligently failed to inspect the drainage tube to ensure that it was removed entirely, which resulted in the tube fragment being overlooked.]

At trial, the patient testified that he was on pain medication at the time that the nurse attempted to remove the tube, but he had a general recollection of a nurse coming into his room and saying the drain needed to be removed.

The patient’s wife also testified to the nurse removing the drain. The nurse could not specifically remember removing the patient’s drainage tube, but she testified that she removes drainage tubes on a frequent basis, always without difficulty. Each of the parties presented an expert to opine on the nurse’s compliance with the standard of care in removing the drainage tube or lack thereof.

At the charge conference, the patient’s lawyer sought a jury instruction establishing a presumption of negligence against the hospital because of the presence of the tube fragment. The proposed instruction was based on Florida Standard Jury Instruction 402.4c:

c. Foreign bodies:[Negligence is the failure to use reasonable care.] The presence of (name of foreign body) in (patient’s) body establishes negligence unless (defendant(s)) prove(s) by the greater weight of the evidence that [he] [she] [it] was not negligent.

The instruction is derived from section 766.102(3), Florida Statutes, which provides that a plaintiff generally maintains the burden of proving a breach of the professional standard of care, but that “the discovery of the presence of a foreign body . . . commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence . . . .” See id. at n.1; § 766.102(3)(b), Fla. Stat. (2011).

1) that the presumption of negligence does not apply in instances where the plaintiff is aware of and has evidence of the culpable party, and

2) that the foreign body instruction is inapplicable to the first of the patient’s two claims (that the nurse negligently applied excessive speed and force) since the instruction in question would be applicable only as to the nurse’s alleged failure to inspect which then resulted in the tube being left behind for a later medical discovery.

Essentially, the statute is a codification of the doctrine of res ipsa loquitur in the medical negligence context. See Borghese v. Bartley, 402 So. 2d 475, 477 (Fla. 1st DCA 1981).1 In Borghese, the plaintiff awoke from surgery with an unexplained burn on a limb that was not involved in the operation and brought suit.

The trial court entered summary judgment for the defendant because the plaintiff intended to rely exclusively on a theory of res ipsa loquitur, which the defendant contended could no longer be applied to actions against health care providers since enactment of the applicable statute pertaining to medical negligence. The First District Court of Appeal reversed and explained that the statute disallows the inference of negligence only in circumstances where the injury actually relates to the treatment sought:

[T]he term medical injury . . . refers to an injury sustained as a direct result of medical treatment or diagnosis, and does not encompass injuries totally unrelated thereto. Thus, when a plaintiff establishes that the injury is outside the scope of medical treatment or diagnosis, and the facts and “circumstances attendant to the injury are such that, in light of past experience, negligence is the probable cause and the defendant is the probable actor,” the doctrine of res ipsa loquitur is applicable.

(b) The existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care . . . . However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

See Fla. Std. Jury Instr. (Civ.) 402.4c, n.1.

Essentially, the statute is a codification of the doctrine of res ipsa loquitur in the medical negligence context. See Borghese v. Bartley, 402 So. 2d 475, 477 (Fla. 1st DCA 1981).1 In Borghese, the plaintiff awoke from surgery with an unexplained burn on a limb that was not involved in the operation and brought suit. The trial court entered summary judgment for the defendant because the plaintiff intended to rely exclusively on a theory of res ipsa loquitur, which the defendant contended could no longer be applied to actions against health care providers since enactment of the applicable statute pertaining to medical negligence. The First District Court of Appeal reversed and explained that the statute disallows the inference of negligence only in circumstances where the injury actually relates to the treatment sought:

[T]he term medical injury . . . refers to an injury sustained as a direct result of medical treatment or diagnosis, and does not encompass injuries totally unrelated thereto. Thus, when a plaintiff establishes that the injury is outside the scope of medical treatment or diagnosis, and the facts and “circumstances attendant to the injury are such that, in light of past experience, negligence is the probable cause and the defendant is the probable actor,” the doctrine of res ipsa loquitur is applicable.

Id. (quoting Chenoweth v. Kemp, 396 So. 2d 1122, 1125 (Fla. 1981), receded from on other grounds in Sheffield v. Superior Ins. Co., 800 So. 2d 197, 202-03 (Fla. 2001); Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So. 2d 1339, 1342 (Fla. 1978)). The Borghese court concluded that the plaintiff could rely on res ipsa loquitur if she established that the injury was unrelated to her surgical procedure, and that the injury occurred while she was under complete control of providers and would not normally occur without negligence. Id.

Similarly, the Third District Court of Appeal has explained that the fact of unconsciousness during surgery coupled with an unexplained injury is insufficient to give rise to the application of the res ipsa loquitur doctrine, but rather “it is the combination of an unconscious plaintiff with an unexplained injury which is unrelated to the surgical procedure or treatment which justifies the res ipsa inference.” Kenyon v. Miller, 756 So. 2d 133, 136 (Fla. 3d DCA 2000) (emphasis in original) (citations omitted). In Kenyon, the plaintiff’s cause of action related to mesh that was purposefully implanted during surgery and was intended to remain as a part of her treatment, but had to be removed following infection.

The appellate court held that negligence cannot be inferred from the fact that treatment was unsuccessful or terminated with poor results. Id. The court also found reversible error due to the fact that the res ipsa loquitur instruction improperly permitted the jury to disregard conflicting expert testimony on the standard of care presented at trial and infer that the doctor was negligent solely based on the presence of the infected surgical mesh.

Affirming a trial court’s declination to give a res ipsa loquitur jury instruction, this court has likewise held that a plaintiff was not entitled to the instruction where she “was not unconscious when her injury occurred, there was no mystery as to how the injury occurred, and there was only one possibly culpable defendant,” and thus, “she was able to adduce sufficient direct evidence of negligence.” McDonald v. Med. Imaging Ctr. of Boca Raton, 662 So. 2d 733, 735 (Fla. 4th DCA 1995). The court explained that “the presence of some direct evidence of negligence should not deprive the plaintiff of [a] res ipsa inference,” but “[t]here comes a point, however, when a plaintiff can introduce enough direct evidence of negligence to dispel the need for the inference.” Id. at 734 (quoting Marrero v. Goldsmith, 486 So. 2d 530, 532 (Fla. 1986)).

In the matter at hand, the facts in evidence did not give rise to the use of the foreign body jury instruction. Like the plaintiff in McDonald, the patient and his wife were able to present direct evidence of negligence. At the time of the alleged negligence, patient was medicated, but was not unconscious, and his wife was in the hospital room. There were no genuine doubts surrounding the identity of the allegedly culpable party or the events that led to the tube being left inside of the patient by the time this case went to trial.

Moreover, a foreign body instruction was not necessary to allow the jury to resolve the issues in the case. As in Kenyon, the patient and the hospital presented conflicting expert testimony on whether the nurse met the standard of care or was negligent. The use of the foreign body jury instruction would have improperly permitted the jury to disregard the conflicting testimony of the experts. Where sufficient facts were known to enable the parties to present conflicting expert testimony on reasonable care, the issue of whether the nurse failed to meet the standard of care and was negligent “should have been left to the jury based upon their assessment of the credibility of the expert witnesses.” See Kenyon, 756 So. 2d at 136.

In light of the evidence presented, including the conflicting expert testimony, the foreign body instruction was neither necessary to enable the jury to resolve the issues in the case nor supported by the facts of the case.

Furthermore, the hospital argued below that, at best, the foreign body instruction would only be appropriate for the patient’s claim that the nurse negligently failed to inspect the tube. Assuming, arguendo, that the nurse was negligent, excessive speed and force in removing the tube resulted only in the creation of the fragment. If the nurse immediately inspected the tube and realized that a piece was missing, the patient would still need surgery to remove it, and it would not be left behind for “discovery” at a later date.

Despite the trial court’s request, the parties did not submit proposed instructions differentiating the claims, therefore we decline to address this unpreserved issue of whether the foreign body instruction may have been properly applied to the claim of negligent inspection, and yet not to the claim of negligent removal. Cf. Feliciano v. Sch. Bd. of Palm Beach Cnty., 776 So. 2d 306, 307-08 (Fla. 4th DCA 2000) (finding that issue was not preserved for review where plaintiff objected to defendant’s proposed instruction on pretext but failed to offer her own written instruction to address the issue).

IBD is like domestic violence in that no one ever talks about it. Irritable bowel syndrome affects a substantial number of people on the planet. Nevertheless, many FDA approved drugs such as Accutane, this medication can be dangerous to patients with irritable bowel syndrome. Even though the manufacturer is accused of not making a more prominent and clearer warning, the doctor is the person who is the health care provider and makes the decision to prescribe a medication to a patient.

In one Florida case, Roche Laboratories Inc.,was sued by a consumer who developed severe acne while in middle school, which caused him to seek treatment from Dr. George Fisher, a dermatologist.

After the consumer’s acne failed to respond to topical agents and antibiotics, Dr. Fisher prescribed Accutane, a drug manufactured and marketed by Roche Laboratories Inc.. Because the consumer’s acne returned when he discontinued use of Accutane, he continued taking Accutane as prescribed by his family practitioner, Dr. Kenneth Counselman, until November 2000, at which time he was diagnosed with Crohn’s Disease, a form of IBD.

The injured consumer filed suit against under theories of strict liability and negligent failure to warn alleging that Accutane’s warning label was inadequate to warn his physicians about the risk of developing IBD.

When Dr. Fisher first prescribed Accutane for Appellee, the label contained the following warning:

Inflammatory Bowel Disease: Accutane has been temporally associated with inflammatory bowel disease (including regional ileitis) in patients without a prior history of intestinal disorders. Patients experiencing abdominal pain, rectal bleeding or severe diarrhea should discontinue Accutane immediately.

The lawyers representing the consumer presented an expert witness who testified that the warning was insufficient because “temporal” did not adequately describe the relationship between Accutane and IBD.

Dr. Fisher testified that he understood the phrase “temporally associated” to mean that there was at least a possibility of a causal relationship between Accutane and IBD. He also testified that he would have prescribed Accutane for the consumer even if the label warned that Accutane could cause IBD.

Dr. Counselman admitted that he did not consult a prescribing reference manual before prescribing the drug for the patient. At the close of the case, the drug company’s counsel moved for a directed verdict, arguing that consumer failed to establish that his injury was proximately caused by any inadequacies in the warning. The trial court denied the motion after the jury returned its verdict in favor of the injured patient. The Appellate Court reversed and ordered the trial judge to enter a judgment in favor of the drug company.

As a general rule, drug companies have the duty to warn of a drug’s dangerous side effects; however, the duty to warn is directed to physicians rather than patients under the “learned intermediary” doctrine. Felix v. Hoffmann-LaRoche, Inc., 540 So. 2d 102, 104 (Fla. 1989); Buckner v. Allergan Pharm., Inc., 400 So. 2d 820, 822 (Fla. 5th DCA 1981) (explaining that a physician acts as a learned intermediary between the manufacturer and the consumer because the physician, as a medical expert, can make an informed choice based on the propensities of the drug and the susceptibilities of the patient). “[I]f the product is properly labeled and carries the necessary instructions and warnings to fully apprise the physician of the proper procedures for use and the dangers involved, the manufacturer may reasonably assume that the physician will exercise the informed judgment thereby gained in conjunction with his own independent learning, in the best interest of the patient.” Buckner, 400 So. 2d at 823 (quoting Terhune v. A.H. Robbins Co., 577 P.2d 975, 978 (Wash. 1978)).

Thus, the duty of a drug manufacturer to warn of the dangers involved in the use of a drug is satisfied if it gives an adequate warning to the physician who prescribes the drug. Buckner, 400 So. 2d at 823.

While the consumer presented testimony that the warning label was inadequate to warn physicians that Accutane use could lead to IBD, Dr. Fisher, the prescribing physician, testified that he understood the warning label to mean that there was at least a possibility of a causal relationship between Accutane and IBD. He testified that he would still be willing to prescribe Accutane to his patients even if there was evidence showing that it could cause IBD in rare cases.

He also testified that even if the warning label contained all of the information suggested by Appellee’s expert, he would still have prescribed the medication for the patient. Thus, any inadequacies in Accutane’s warning label could not have been the proximate cause of the patient’s injury because Dr. Fisher understood that there was a possibility that use of the drug could lead to the patient developing IBD and he made an informed decision to prescribe the drug for the patient despite this risk. Because the patient presented no evidence to establish proximate cause, the trial court erred in denying the drug company’s motion for a directed verdict.

We all hate to go the hospital regardless of our age, gender, ethnicity, or our occupation or job. A hospital is a place where we all go when injured or sick and we don’t expect to be killed or injured while we are there.

I have written priori articles about incidents where a nurse who was herself struggling with addiction administered the wrong medication to a patient who died. There have also been articles where the employee of the hospital while cleaning the rooms accidentally pulled out the cord from an outlet of a machine that was providing the patient life support and the patient expired.

There were instances were where a mentally disturbed employee was intentionally killing patients who he was supposed to be treating.

This particular case involved a very different type of injury case and one which the injured person’s lawyer did an excellent job in selecting the right cause of action to file on behalf of the injured person to recover his harms and losses which were great.

Here, the patient was admitted to HRMC for cardiac bypass surgery; he left a double amputee. During the course of surgery, the patient was administered contaminated heparin, which caused him to develop a severe bacterial infection that ultimately led to the amputation of his left leg and right foot. The lawyer on behalf of the injured consumer filed a complaint which alleges that the heparin supplier had issued a recall of its contaminated product prior to the patient’s surgery, but that HRMC failed to have adequate procedures in place to respond to the recall:

Despite the fact that [the manufacturer’s] contaminated products had been recalled months earlier, [HRMC] failed to promptly remove and return all of its supplies of recalled . . . heparin products at the time of the recall. Instead, [HRMC] negligently failed to conduct an adequate review and removal process for the . . . recalled heparin. At the time of the patient’s operation, more than four months after [the manufacturer’s] recall . . . recalled heparin products were still in stock at [HRMC].

Notably, the healthcare workers, including the doctors who participated in the bypass surgery, are not defendants in the lawsuit. The injured patient does not allege that the administration of heparin as part of the surgical procedure was below the standard of care. Nor do they allege that the healthcare workers knew or had reason to know that the heparin was tainted. Moreover, the injured patient’s suit against HRMC is not based upon HRMC’s vicarious liability for the negligence of its healthcare workers. Rather, it focuses on the administrative policies and actions of HRMC in responding to the recall of the contaminated heparin.

It is axiomatic that the mere fact that a wrongful act occurs in a medical setting does not automatically transform the contested action into one that sounds in medical malpractice; the wrongful act must be “directly related to the improper application of medical services and the use of professional judgment or skill.” Corbo, 949 So. 2d at 368 (quoting Lynn v. Mount Sinai Med. Ctr., Inc., 692 So. 2d 1002, 1003 (Fla. 3d DCA 1997)).

Here the court had to examine the fact of this case against the very definition of what the statue defines as medical negligence: The medical malpractice standard of care is set forth in section 766.102(1), which provides:

In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.

This Court has previously held that “[t]he primary test for whether a claim is one for medical malpractice is whether the claim relies on the application of the medical malpractice standard of care.”4 Pierrot, 106 So. 3d at 493 (citing Weinstock v. Groth, 629 So. 2d 836, 838 (Fla. 1993); Joseph v. Univ. Behavioral LLC., 71 So. 3d 913, 917 (Fla. 5th DCA 2011); GalenCare, Inc. v. Mosley, 59 So. 3d 138, 141-43 (Fla. 2d DCA 2011)).

Application of this standard is not always easy or consistent. The cases range from the obvious — such as an incorrect diagnosis or an error that occurs during treatment or surgery — to the more difficult — such as the condition of the premises or the use of tainted materials during a medical procedure. As to the latter category of cases, courts have not applied the standard uniformly. Still, some guiding principles can be gleaned from the case law.

Typically, if the negligent act occurs during the course of the medical procedure, courts find that the complaint sounds in medical malpractice.

For example, in Corbo, 949 So. 2d at 368, a patient was burned by an improperly calibrated machine during the course of physical therapy treatment. The patient filed suit, alleging simple negligence, but the physical therapy provider argued that the claim sounded in medical malpractice.

In finding that the case sounded in medical malpractice, the court reasoned that “the injury alleged by [the patient] was directly inflicted by the medical care-that is, physical therapy treatment-provided to her by the petitioner. [The patient’s] claim thus arose ‘out of the rendering of . . . medical care or services.’ ” Id. (citing § 766.106(1)(a), Fla. Stat.). In other words, the alleged “wrongful act” was “directly related to the improper application of medical services . . . and the use of professional judgment or skill.” Id. (citing Lynn, 692 So. 2d at 1003). Significantly, the court in Corbo distinguished a previous case, Mobley v. Hirschberg, P.A., 915 So. 2d 217 (Fla. 4th DCA 2005), because in that case, the alleged wrongful act occurred in preparation for a medical procedure and did not involve the use of professional judgment or skill. Id. at 369-70.

In Goldman v. Halifax Medical Center, 662 So. 2d 367 (Fla. 5th DCA 1995), the plaintiff alleged that an operator of mammographic equipment negligently applied excessive pressure causing the rupture of the plaintiff’s silicone breast implant. Like in Corbo, she also claimed that her injury was caused in part by the improper calibration of the equipment. This Court found that the action was subject to the FMMA’s presuit requirements because the patient “was injured as a direct result of receiving medical care or treatment by a hospital employee.”

Additionally, courts have consistently found that cases that do not involve professional medical judgment or skill sound in ordinary negligence. See, e.g., Joseph, 71 So. 3d at 919-20 (finding that the administrative decision not to separate patients did not involve medical judgment and did not sound in medical malpractice); Quintanilla v. Coral Gables Hosp., Inc., 941 So. 2d 468, 468-69 (Fla. 3d DCA 2006) (finding that the spilling of hot tea on a patient sounded in ordinary negligence); Lynn, 692 So. 2d at 1003 (finding that the improper collection and labeling of a urine specimen taken for purposes of drug testing sounded in ordinary negligence); Buchanan v. Lieberman, M.D., 526 So. 2d 969, 972 (Fla. 5th DCA 1988) (finding that a treating physician’s improper touching did not sound in medical malpractice).

Out-of-state cases involving the use of tainted materials during medical procedures provide further instruction on the distinction between medical malpractice and ordinary negligence.

For example, in Weiner v. Lenox Hill Hospital, 673 N.E.2d 914 (N.Y. 1996), a patient sought treatment at a hospital for a small bowel obstruction. During the course of the treatment, numerous blood transfusions were administered.

At least one was contaminated with HIV, which ultimately led to the patient’s death from AIDS-related illnesses. The patient’s estate brought suit challenging the hospital’s “failure to adopt and prescribe proper procedures in screening and collecting blood.”

The hospital raised the medical malpractice statute of limitations as a defense. The New York Court of Appeals, like Florida courts, reasoned that not every act that occurs in a hospital involves the rendition of medical care or involves professional medical judgment. Id. at 787-88 (citing Bleiler v. Bodnar, 65 N.Y.2d 65, 73 (N.Y. 1985)).

The court held that “a claim sounds in medical malpractice when the challenged conduct ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician.’ ” Id. at 788 (quoting Bleiler, 65 N.Y.2d at 72).

Ultimately, in rejecting the applicability of the medical malpractice statute of limitations, the court noted that the core issue in the case did not implicate questions of medical competence or judgment but turned on the hospital’s procedures. Id.; see also Estate of Doe v. Vanderbilt Univ., Inc., 958 S.W.2d 117 (Tenn. Ct. App. 1997).

Similarly, in Turner v. Steriltek, Inc., No. M2006-01816-COA-R3-CV, 2007 WL 4523157, at *8 (Tenn. Ct. App. Dec. 20, 2007), a Tennessee appellate court addressed this issue in the context of improperly sterilized instruments. In Turner, physicians were performing surgery on the plaintiff’s daughter. Id. at *1. During surgery, the physicians were notified that the surgical instruments were contaminated. Id. Plaintiff’s father filed suit against the hospital and alleged that the hospital was negligent in failing to have proper procedures in place to ensure that instruments were properly sterilized. Id. at *3. On appeal, the court held that the claim did not sound in medical malpractice because the administrative decision was made well before the medical procedure, and the decision did not involve medical judgment. Id. at *8.7

In this case, no medical judgment or skill was exercised by HRMC, and the allegedly wrongful act occurred months before the patient’s surgery. Moreover, HRMC’s decision to administer heparin is not the gravamen of the complaint.

Indeed, the failure to administer a blood thinner during the procedure would undoubtedly fall below the acceptable standard of care. Rather, the allegedly wrongful act was HRMC’s administrative failure to properly remove heparin from its inventory, which it knew or should have known had been recalled.

This alleged failure of administrative policy is not unlike the failure of a grocery store to remove a tainted product after having been notified of a recall. Thus, HRMC’s allegedly wrongful act is not unique to the hospital setting and does not involve professional medical judgment or skill. For these reasons, the claim sounds in ordinary negligence rather than medical malpractice, and the FMMA’s presuit notice requirements do not apply.

For the reasons expressed, we deny the petition for writ of certiorari.

PETITION DENIED. (SAWAYA and ORFINGER, JJ., concur.)