10-859 BAPTIST MEDICAL CENTER OF THE BEACHES, INC., v. ARTHUR ROBERT RHODIN AND JANICE RHODIN, his wife, and DAVID RHODIN and ROBERT RHODIN, his unmarried dependents

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Laws-info.com » Cases » Florida » Florida First District Court » 2010 » 10-859 BAPTIST MEDICAL CENTER OF THE BEACHES, INC., v. ARTHUR ROBERT RHODIN AND JANICE RHODIN, his wife, and DAVID RHODIN and ROBERT RHODIN, his unmarried dependents

State: Florida

Court: Florida First District Court

Docket No: 10-859

Case Date: 07/16/2010

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA BAPTIST MEDICAL CENTER OF THE BEACHES, INC., Petitioner, v. ARTHUR ROBERT RHODIN AND JANICE RHODIN, his wife, and DAVID RHODIN and ROBERT RHODIN, his unmarried dependents, Respondents. ______________________________/ Opinion filed July 16, 2010. Petition for Writ of Certiorari. Original jurisdiction. Earl E. Googe, Jr., and Andrew Henry Sauer, Jacksonville, for Petitioner. Robert F. Spohrer and Chad S. Roberts, of Spohrer Dodd, Jacksonville; Bryan S. Gowdy, of Mills Creed & Gowdy, P.A., Jacksonville, for Respondents. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D10-859

KAHN, J. In respondents' medical negligence suit against Baptist Medical Center of the Beaches, Inc. (Baptist), petitioner moved to dismiss the complaint for failure to comply with the presuit requirements of chapter 766, Florida Statutes (2009). The trial court denied the motion. Petitioner seeks certiorari review of the trial court's order on the ground that respondents' notice of intent to initiate litigation is legally insufficient.

Concluding that petitioner has not met its burden to demonstrate entitlement to extraordinary relief, we deny the petition for writ of certiorari. I. FACTUAL AND PROCEDURAL BACKGROUND In pertinent part, the complaint alleged that beginning April 17, 2008, respondent Arthur Rhodin was hospitalized at Baptist. Through April 19, 2008, he demonstrated severe and progressively worsening pain in his neck, back, and right side of the chest. The Rhodins alleged that petitioner, through its employees and agents, deviated from the appropriate standards of reasonable medical care, causing injury to Mr. Rhodin 1) by failing to appreciate Mr. Rhodin's worsening clinical condition of extreme pain and the need for diagnostic determination of the pain's source; 2) by failing to communicate in a timely, appropriate manner with the attending physicians that Mr. Rhodin's clinical condition was worsening, he was not responding to strong pain medication, and he needed diagnostic intervention; 3) by failing to adequately train its nursing staff in the above-described skills; 4) by failing to maintain adequate policies and procedures that address the above-described skills; and 5) by negligently training and credentialing the nursing staff member who primarily cared for Mr. Rhodin on the evening of April 19, 2009. Simply stated, the complaint alleged negligent nursing care that caused injury to Mr. Rhodin.

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As required by section 766.203(2), Florida Statutes (2009), respondents filed the affidavit of Dr. Michelle M. Byrne, a Ph.D. and registered nurse, in compliance with the statutory presuit investigation mandate. After reviewing Mr. Rhoden's medical records and relying on her own education, training, and experience, Dr. Byrne opined reasonable grounds exist to initiate a claim for medical malpractice on the part of petitioner's nurses, employees, or agents. Specifically, Dr. Byrne found that petitioner, including its nursing staff, deviated from acceptable and appropriate standards of care 1) by failing to accurately, timely assess Mr. Rhodin's worsening clinical condition and 2) by failing to communicate in an appropriate, timely manner with the attending physicians that Mr. Rhodin's clinical condition was worsening. Byrne concluded that these deviations from appropriate care caused or substantially contributed to Mr. Rhodin's permanent injury. Baptist moved to dismiss the complaint based on respondents' failure to satisfy the presuit notice requirements of chapter 766. Specifically, Baptist objected to the affidavit submitted by Dr. Byrne. The trial court denied the motion, and Baptist asks us to quash that denial. II. ANALYSIS A. Basis for Certiorari Jurisdiction As always, we must make a threshold determination of whether to exercise certiorari jurisdiction. A writ of certiorari, which is an extraordinary common-law

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remedy subject to "strict prerequisites," is not available as a matter of right and should be used only in very limited circumstances. See Abbey v. Patrick, 16 So. 3d 1051, 1054 (Fla. 1st DCA 2009). Certiorari review of a nonfinal order denying a motion to dismiss is generally unavailable. See Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987). Courts do afford such review, however, in the rare and "narrow context" where a medical defendant presents facts demonstrating the plaintiff has not met the presuit notice requirements of chapter 766. See Miami Physical Therapy Assocs. v. Savage, 632 So. 2d 114, 116 (Fla. 3d DCA 1994); Oken v. Williams, 23 So. 3d 140, 145 (Fla. 1st DCA 2009). The appropriate scope of certiorari review of an order denying a motion to dismiss in the context of chapter 766 presuit compliance actions was described in St. Mary's Hospital v. Bell, 785 So. 2d 1261, 1262 (Fla. 4th DCA 2001) (stating "certiorari is available to review whether a trial judge followed chapter 766 and whether a plaintiff complied with presuit notice and investigation requirements; certiorari is not so broad as to encompass review of the evidence regarding the sufficiency of counsel's pre-suit investigation"); see Simeon, Inc. v. Cox, 671 So. 2d 158, 160 (Fla. 1996). Under a jurisdictional analysis, certiorari review is proper if the trial court's order fails to satisfy the mandatory presuit procedures in chapter 766, which are a condition precedent to a medical malpractice suit. See Kukral v. Mekras, 679 So. 2d 278, 283 (Fla. 1996); Oken, 23 So. 3d at 144; Lakeland Reg'l Med. Ctr., Inc. v. Allen, 944 So. 2d 541, 543 (Fla. 2d DCA 2006); Parkway Bank v. 4

Fort Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla. 2d DCA 1995). Baptist asserts that Dr. Byrne's affidavit does not meet the presuit requirements of chapter 766. If this is so, then allowing respondents to fully litigate the suit would cause petitioner material harm that could not be remedied on plenary appeal. See Goldfarb v. Urciuoli, 858 So. 2d 397, 398 (Fla. 1st DCA 2003). Accordingly, we have jurisdiction to consider the merits of Baptist's claims. If the order denying petitioner's motion to dismiss is materially wrong, we must quash it; otherwise, we have no basis to exercise extraordinary jurisdiction. B. Departure From Essential Requirements of Law Having found a tentative basis for certiorari jurisdiction, we must consider next whether the nonfinal order passes the standard of review on its merits, i.e., whether the trial court departed from the essential requirements of law. The Florida Legislature enacted presuit investigation requirements "to provide a plan for prompt resolution of medical negligence claims."

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