06-4995 CONNIE ANDREW and WILLIAM ANDREW, INDIVIDUALLY, and CONNIE ANDREW as Personal Rep of the Estate of Dustin Andrew v. SHANDS AT LAKE SHORE, INC., etc., and UNIVERSITY OF FLORIDA BD. OF TRUSTEES

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Laws-info.com » Cases » Florida » Florida First District Court » 2007 » 06-4995 CONNIE ANDREW and WILLIAM ANDREW, INDIVIDUALLY, and CONNIE ANDREW as Personal Rep of the Estate of Dustin Andrew v. SHANDS AT LAKE SHORE, INC., etc., and UNIVERSITY OF FLORIDA BD. OF TRUSTEES

State: Florida

Court: Florida First District Court

Docket No: 06-4995

Case Date: 12/20/2007

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

CONNIE ANDREW AND WILLIAM ANDREW, individually, and CONNIE ANDREW as Personal Representative of the Estate of Dustin Andrew, deceased, Appellants, v. SHANDS AT LAKE SHORE, INC., a Florida corporation, and THE UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, Appellees. _____________________________/

CASE NO. 1D06-4995

Opinion filed December 20, 2007. An appeal from the Circuit Court for Columbia County. E. Vernon Douglas, Judge. Rebecca Bowen Creed of Mills & Creed, Jacksonville; Alan E. McMichael of Stripling McMichael Stripling, Gainesville; Jon M. Herskowitz of The Herskowitz Law Firm, Miami, for Appellants. Eric P. Gibbs of Hannah, Estes & Ingram, P.A., Orlando; Susan L. Kelsey of Anchors, Smith, Grimsley, Ft. Walton Beach, for Appellees.

PADOVANO, J. This is an appeal from a final order dismissing a wrongful death complaint against a hospital. The trial court held that the hospital was protected by sovereign immunity because the doctor who was alleged to have been negligent in the care and treatment of the patient was employed by the state. We conclude that immunity

afforded to the doctor as a state employee did not inure to the benefit of the hospital. Accordingly, we reverse. The plaintiffs, Connie and William Andrew, filed a medical negligence suit against Shands at Lake Shore, Inc., a private hospital, and the University of Florida Board of Trustees, an agency of the State of Florida. They alleged that the defendants were liable for the wrongful death of their fifteen-year-old son, Dustin. The medical negligence at issue was attributed to a radiologist who was employed by the Board of Trustees but working at Shands under a joint venture between the two. As alleged in the complaint, the plaintiffs brought Dustin to the emergency room at Shands at Lake Shore on August 21, 2002. He was suffering from abdominal pain and he had been passing blood in his urine. A radiologist ordered a CT scan but, according to the complaint, he failed to identify a suspicious mass that turned out to be a malignant tumor. The tumor metastasized and ultimately caused Dustin's death.

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The operative allegation of the complaint is that the radiologist failed to exercise reasonable care in examining the CT scan and that this failure delayed effective treatment of the tumor. The radiologist was not named as a defendant, but the plaintiffs alleged that Shands was liable for his negligence, because he was working as an agent for Shands under its direct control and supervision. The relationship between Shands at Lake Shore and the University of Florida Board of Trustees is outlined in the complaint. The University of Florida College of Medicine, acting through the Board of Trustees, employs physicians who are then assigned to work at Shands. As a part of this arrangement, Shands pays a sum of money to the College of Medicine every year to cover the costs of the physicians' salaries. This staffing arrangement is exclusive, at least with respect to the

radiologists who are working at the hospital. The only radiologists who are allowed staff privileges at Shands are those who are employed by the College of Medicine. The University owns the building and leases it to Shands at Lake Shore for use as a hospital. Shands retains control over the medical services provided at the hospital and in this respect it has potential liability for the negligence of the doctors working on the hospital staff. The plaintiffs alleged in the complaint that the radiologist who failed to identify Dustin's malignant tumor was at all times working within the course

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and scope of his employment by the joint venture between Shands at Lake Shore and the University of Florida Board of Trustees. Shands moved to dismiss the complaint for failure to state a cause of action. The motion was based on section 768.28(9)(a), Florida Statutes (2002), which provides that an employee of the state is immune from liability for ordinary negligence, under the doctrine of sovereign immunity. The radiologist was not

named as a defendant, but the statute also provides that the "exclusive remedy" for an injury caused by a state employee is to file suit against the governmental entity as an employer. Based on this language, Shands maintained that it was not liable to the plaintiffs because it had not employed the radiologist, and that the plaintiffs' only recourse was to sue the Board of Trustees. The trial court agreed and dismissed the claim against Shands with prejudice. This court has jurisdiction to hear an appeal from the order, even though the case is still pending between the plaintiffs and the Board of Trustees. Because the order disposes of the entire case as to an individual party it is immediately appealable as a partial final judgment. See Fla. R. App. P. 9.110(k); Mang v. Country Comfort Inn, Inc., 559 So. 2d 672 (Fla. 3d DCA 1990). Whether the complaint was properly dismissed is a question of law. See Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732 (Fla. 2002); Aguila v. Hilton, Inc., 878 So. 2d 392 (Fla. 1st DCA 2004). The 4

dismissal order in this case is based on the interpretation of a statute, which is also a question of law. See State v. Burris, 875 So. 2d 408 (Fla. 2004); Dep't of Revenue v. Lockheed Martin Corp., 905 So. 2d 1017 (Fla. 1st DCA 2005). We therefore review the order of dismissal by the de novo standard. Florida courts have adhered to the principle that a statute must be interpreted according to its plain meaning. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). Hence, we begin by considering the full text of the statute. No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. However, such officer, employee, or agent shall be considered an adverse witness in a tort action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function. The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

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