Morejon v. Mariners Hospital , 197 So. 3d 591 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed June 08, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1711
Lower Tribunal No. 15-6875
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Orlando Morejon and Annmarie Morejon,
Appellants,
vs.
Mariners Hospital, Inc., etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Samantha Ruiz-
Cohen, Judge.
Christopher J. Lynch, P.A., and Christopher J. Lynch; Roberts & Durkee,
P.A., and David Durkee, for appellants.
Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., and Glenn P.
Falk Jr.; and Richard A. Warren, for appellee Mariners Hospital, Inc.
Before SUAREZ, C.J., and ROTHENBERG and EMAS, JJ.
ROTHENBERG, J.
Dr. Orlando Morejon (“Dr. Morejon”) and his wife, Annmarie Morejon,
(collectively, “the Morejons”) appeal the trial court’s entry of a final judgment of
dismissal in favor of one of the defendants below, Mariners Hospital, Inc.
(“Mariners”). Because the Morejons failed to state a cause of action under section
395.1041, Florida Statutes (2011), and have not appealed the trial court’s denial of
their motion to amend, we affirm the trial court’s final judgment of dismissal.
BACKGROUND
In March 2015, the Morejons sued Mariners and South Miami Hospital
(“South Miami”) for violation of section 395.1041, entitled “Access to Emergency
Services and Care,” which we have previously referred to as the “anti-dumping
statute.” Porter, Brown, Chitty & Pirkle, M.D.P.A. v. Pearson, 793 So. 2d 1012,
1012 (Fla. 3d DCA 2001). The Morejons alleged that Mariners had a statutory
obligation to transfer Dr. Morejon, and that Mariners violated the statute by calling
only one hospital, South Miami, in an attempt to transfer Dr. Morejon for medical
treatment.
The Morejons allege the following facts in their complaint, which we accept
as true. See Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So. 2d 1157,
1159 (Fla. 3d DCA 2008). In November 2011, Dr. Morejon presented at Mariners
with abdominal pain. After it was determined that Dr. Morejon suffered from an
emergency condition, the medical staff at Mariners decided that the best course of
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action was to transfer Dr. Morejon to another hospital with a more specialized
medical staff. Additionally, the Morejons requested a transfer because Mariners’
list of service capabilities did not include the treatments necessary to care for Dr.
Morejon. Mariners’ medical staff attempted to transfer Dr. Morejon to South
Miami. However, South Miami denied the transfer request, and Mariners did not
attempt to transfer Dr. Morejon to another hospital. Instead, the general surgeon on
call at Mariners performed an exploratory abdominal surgery, which was
complicated by a spleen injury and cardiac arrest. Dr. Morejon was then
transferred to Baptist Hospital for surgical intervention. While Dr. Morejon
ultimately survived, the Morejons claim that Mariners’ failure to effectuate a
timely transfer worsened Dr. Morejon’s condition.
In April 2015, Mariners moved to dismiss the Morejons’ complaint. At a
hearing on Mariners’ motion to dismiss, the trial court found that: (1) the
Morejons failed to allege that Mariners “dumped” or refused to treat Dr. Morejon
in violation of section 395.1041; (2) nothing in section 395.1041 created a duty to
transfer or required Mariners to transfer Dr. Morejon; and (3) the Morejons’ claim
is actually for medical malpractice and is not properly pled as a statutory violation
because the allegations deal with the issue of the quality of the healthcare
provided. The trial court also denied the Morejons’ motion to amend the complaint
because any medical malpractice claim that the Morejons might have had against
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Mariners would be barred by the statute of limitations.1 Thereafter, the trial court
entered a final judgment of dismissal with prejudice.
The Morejons appeal from the final judgment of dismissal, arguing that they
have stated a viable cause of action against Mariners for violating the statutory
duty to transfer contained in section 395.1041. For the following reasons, we
disagree.
ANALYSIS
We review a trial court’s ruling on a motion to dismiss de novo. Execu-Tech
Bus. Sys., Inc. v. New Oji Paper Co., 752 So. 2d 582, 584 (Fla. 2000); Susan Fixel,
Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA 2003).
When interpreting the anti-dumping statute to determine whether it obligates
hospitals to transfer patients, we are guided by “the polestar of statutory
construction: plain meaning of the statute at issue.” Acosta v. Richter, 671 So. 2d
149, 153 (Fla. 1996); Shelby Mut. Ins. Co. v. Smith, 556 So. 2d 393, 395 (Fla.
1990) (“The plain meaning of statutory language is the first consideration of
statutory construction.”). Thus, we begin with the text of the statute under review.
We find that subsection 395.1041(3)(c) directly answers the question of
whether hospitals have a statutory duty to transfer patients. It states the following:
1 § 95.11(4)(b), Fla. Stat. (2011) (“An action for medical malpractice shall be
commenced within 2 years from the time the incident giving rise to the action
occurred or within 2 years from the time the incident is discovered, or should have
been discovered with the exercise of due diligence.”).
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(c) A patient, whether stabilized or not, may be transferred to
another hospital which has the requisite service capability or is not at
service capacity, if
1. The patient, or a person who is legally responsible for the
patient and acting on the patient’s behalf, after being informed of the
hospital’s obligation under this section and of the risk of transfer,
requests that the transfer be effected;
2. A physician has signed a certification that, based upon the
reasonable risks and benefits to the patient, and based upon the
information available at the time of transfer, the medical benefits
reasonably expected from the provision of appropriate medical
treatment at another hospital outweigh the increased risks to the
individual’s medical condition from effecting the transfer; or
3. A physician is not physically present in the emergency
services area at the time an individual is transferred and a qualified
medical person signs a certification that a physician, in consultation
with personnel, has determined that the medical benefits reasonably
expected from the provision of appropriate medical treatment at
another medical facility outweigh the increased risks to the
individual’s medical condition from effecting the transfer. The
consulting physician must countersign the certification . . . .
§ 395.1041(3)(c), Fla. Stat. (emphasis added). The permissive use of the word
“may” in subsection (3)(c) clarifies that a hospital will not be obligated to transfer
a patient simply because a patient, physician, or other qualified medical person
requests that the patient be transferred. See Fixel v. Clevenger, 285 So. 2d 687,
688 (Fla. 3d DCA 1973) (“The word ‘may’ when given its ordinary meaning
denotes a permissive term rather than the mandatory connotation of the word
‘shall.’”); see also Rochester v. State, 95 So. 3d 407, 410 (Fla. 4th DCA 2012),
approved, 140 So. 3d 973 (Fla. 2014). While in some circumstances, the word
“may” can be interpreted to mean “must” or “shall,” we find nothing in this statute
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to support a mandatory reading of the word “may.” See Sloban v. Fla. Bd. of
Pharmacy, 982 So. 2d 26, 33 (Fla. 1st DCA 2008) (explaining the circumstances in
which a court can interpret “may” to mean “shall” and “must”). We therefore find
that section 395.1041 does not create a duty to transfer.2
We note that the Morejons could have initially alleged a cause of action for
medical malpractice under these facts. However, the statute of limitations for
medical malpractice has since passed, and the Morejons have not appealed the trial
court’s denial of their motion to amend their complaint, choosing instead to rely
solely upon their claim for a statutory violation of section 395.1041.3
CONCLUSION
Because the plain meaning of section 395.1041 specifically permits and does
not obligate a hospital to transfer a patient to another hospital, we conclude that it
does not create a statutory duty to transfer patients. We therefore reject the
Morejons’ claim that they have pled a viable statutory cause of action against
2 Our holding does not limit or diminish the obligations of the hospital that receives
a transfer request to accept a “medically necessary transfer.” § 395.1041(3)(a)2.b.
(“Every general hospital which has an emergency department shall provide
emergency services and care for any emergency medical condition when: . . .
Emergency services and care are requested on behalf of a person by: . . . Another
hospital, when such hospital is seeking a medically necessary transfer, except as
otherwise provided in this section.”).
3 The Morejons abandoned their argument that their complaint included a claim for
ordinary negligence during oral argument. Even if they had not done so, we find
the argument unpersuasive. We therefore decline to discuss it further.
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Mariners stemming from the failure to transfer Dr. Morejon. Accordingly, we
affirm the trial court’s final order of dismissal with prejudice.
Affirmed.
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