Townes v. The National Deaf Academy , 197 So. 3d 1130 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DENISE TOWNES, AS POWER
OF ATTORNEY, ET AL.,
Appellants,
v. Case No. 5D14-904
THE NATIONAL DEAF ACADEMY,
LLC, ETC.,
Appellee.
________________________________/
Opinion filed June 17, 2016
Appeal from the Circuit Court
for Lake County,
Mark J. Hill, Judge.
Nicholas A. Shannin and Pamela R. Masters,
of Shannin Law Firm, P.A., Orlando, and
Michael J. Brevda, of Domnick Law, Palm
Beach Gardens, for Appellants.
Mark Hicks, Mary Gniadek, and Shannon
Debus-Horn, of Hicks, Porter, Ebenfeld &
Stein, P.A., Miami, and Julie W. Allison, of
Julie W. Allison, P.A., Miami, for Appellee.
EDWARDS, J.
ON MOTIONS FOR REHEARING, CLARIFICATION, AND CERTIFICATION
We grant Appellee’s motions for clarification and for rehearing in part, and deny
them in part. We deny Appellee’s motions for rehearing en banc and for certification. We
substitute the following opinion in place of our original opinion.
Denise Townes, individually, and on behalf of her niece, Cinnette Perry (“Perry”),
a minor, (“Appellants”) appeal the trial court’s entry of final summary judgment in favor of
the National Deaf Academy, LLC (“NDA”). About one month after her admission to NDA,
Perry was throwing rocks at staff members and windows. In an effort to control her
behavior, staff members employed a specific physical restraint method. As she was
forced to the ground, Perry’s leg was injured and ultimately required amputation. For the
reasons discussed below, we affirm in part and reverse in part.
FACTS LEADING TO PERRY’S INJURY
On July 17, 2008, Perry was admitted to NDA following an acute psychiatric
inpatient admission at another facility. NDA operates as both a school and a residential
treatment facility, licensed pursuant to Chapter 394, Florida Statutes (2008), for deaf, hard
of hearing, and autistic individuals suffering from psychiatric and behavioral disorders.
NDA offers psychiatric, psychological, medical, speech therapy, and educational services
to its residents. NDA’s staff includes psychiatrists, nurses, teachers, therapists, and sign
language interpreters.
Before going to NDA, Perry was diagnosed with bipolar disorder-mixed,
intermittent explosive disorder, impulse control disorder not otherwise specified, conduct
disorder, and post-traumatic stress disorder. During her admission, an NDA psychiatrist
established a plan of care for Perry that included Therapeutic Aggression Control
Techniques (“TACT”), which involves staff members physically restraining the resident.
Prior to employing a TACT hold, the most senior employee on scene is required to make
a determination as to whether the TACT hold is an appropriate method to control the
resident.
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On August 7, 2008, Danielle Warren, a nurse employed by NDA, received notice
that Ms. Perry “eloped off campus.” When Perry voluntarily returned to NDA’s campus,
she began throwing rocks at NDA staff and its buildings, causing several windows to
shatter. Perry also pulled on cables, wires, and lightning rods, trying to dislodge them.
After the staff removed the other residents from the area, four NDA staff members
attempted to verbally de-escalate the situation. Since Perry was not responding to the
verbal de-escalation attempts, Nurse Warren made the decision to perform a TACT
protective hold. After Nurse Warren called Dr. Karen Goldberg, NDA’s Associate Medical
Director, the staff attempted to employ a TACT hold. The attempt was unsuccessful as
Perry was agitated. According to Nurse Warren, Perry positioned her toe down into where
“the dirt meets the concrete” and then wrapped her leg around Nurse John Barclay,
causing both to fall. As she fell, Perry sustained an injury to her leg, which the staff
believed to be a dislocated knee. While they were waiting for the paramedics, NDA staff
conducted a full physical assessment of Perry and, pursuant to Dr. Goldberg’s
recommendation, gave Perry her previously prescribed medication. According to Nurse
Barclay, Perry had a defined pulse in the affected leg. Approximately twenty minutes later,
the ambulance arrived and took Perry to Florida Hospital.
On August 9, 2008, as a result of the injury sustained during the attempted TACT
protective hold, Perry underwent an above-the-knee amputation of her left leg. Her
preoperative diagnoses were nonviable left leg after knee injury, popliteal artery
disruption, and compartment syndrome.
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ORIGINAL AND AMENDED COMPLAINTS
Appellants’ current attorneys, their third legal team, filed the original complaint
against NDA on April 23, 2012. Counts I and II of the original complaint alleged that NDA,
through its employees and agents, negligently injured Perry by: failing to properly care for
her, failing to recognize that NDA was unable to care for her, failing to send her to a higher
level care facility, failing to maintain control over her, failing to implement necessary safety
precautions, failing to prevent injuries to her, forcefully throwing her onto the floor,
forcefully restraining her on the floor, failing to recognize that she sustained a serious leg
injury, failing to obtain proper medical care for her, failing to provide reasonable care to
her, and failing to act reasonably under the circumstances.
NDA filed a motion to dismiss the complaint with prejudice, asserting that
Appellants failed to comply with the medical malpractice presuit requirements of Chapter
766, Florida Statutes (2008), before the applicable two-year statute of limitations had
expired. Appellants were allowed to conduct limited discovery focused on whether the
TACT hold was employed by non-medical as well as medical NDA staff members. After
certain depositions were completed, NDA renewed its motion to dismiss the original
complaint, and also filed an alternative motion for final summary judgment.
Shortly before the hearing on NDA’s motions, Appellants filed an amended
complaint adding four new causes of action. As in the original complaint, Counts I and II
of the amended complaint asserted general negligence claims. Counts III and IV of the
amended complaint asserted “alternative” medical malpractice claims based upon the
same factual allegations contained in Counts I and II. Counts V and VI of the amended
complaint asserted that NDA was liable based upon its alleged violations of the Florida
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Mental Health Act, also known as the Baker Act, Chapter 394, Florida Statutes (2008).
In Counts V and VI, Appellants claimed that NDA failed to provide Perry with the least
restrictive appropriate care; failed to provide her with skillful, safe, and humane mental
health services; and otherwise failed to comply with the requirements of the Baker Act.
The trial court entered its order granting NDA’s motion and entered final summary
judgment against Appellants on all claims asserted in the amended complaint.
SUMMARY JUDGMENT STANDARDS
The “standard of review of a summary judgment order is de novo and requires
viewing the evidence in the light most favorable to the non-moving party.” Sierra v.
Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) (citing Walsingham v. Dockery, 671 So.
2d 166 (Fla. 1st DCA 1996)). “If the ‘slightest doubt’ exists, then summary judgment must
be reversed.” Id. (citing Hancock v. Dep’t of Corrs., 585 So. 2d 1068 (Fla. 1st DCA 1991)).
“Summary judgment is proper if there is no genuine issue of material fact and if the moving
party is entitled to a judgment as a matter of law.” Volusia Cty. v. Aberdeen at Ormond
Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) (citing Menendez v. The Palms W. Condo.
Ass’n, 736 So. 2d 58 (Fla. 1st DCA 1999)).
COUNTS I AND II - SUMMARY JUDGMENT REVERSED
The trial court agreed with NDA’s position that the use of the TACT hold arose out
of rendering medical care and services to Perry; therefore, it found that Counts I and II of
the amended complaint alleged medical malpractice claims. Summary judgment was
granted in favor of NDA on those two counts because the trial court found that the statute
of limitations had expired and Appellants had not complied with the presuit medical
malpractice notification requirements. For the reasons explained below, we reverse.
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Section 766.106, Florida Statutes (2008), “imposes presuit requirements on a
claim for medical negligence or malpractice.” Joseph v. Univ. Behavioral LLC, 71 So. 3d
913, 917 (Fla. 5th DCA 2011). An “‘action for medical malpractice’ is defined as a claim
in tort or in contract for damages because of the death, injury, or monetary loss to any
person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any
provider of [healthcare].” Silva v. Sw. Fla. Blood Bank, Inc., 601 So. 2d 1184, 1186 (Fla.
1992) (quoting § 95.11(4)(b), Fla. Stat. (1992)). “In ordinary, common parlance, the
average person would understand ‘diagnosis, treatment, or care,’ to mean ascertaining a
patient’s medical condition through examination and testing, prescribing and
administering a course of action to effect a cure, and meeting the patient’s daily needs
during the illness.” Id. at 1187; see also Buck v. Columbia Hosp. Corp. of S. Broward,
147 So. 3d 604, 606 (Fla. 4th DCA 2014) (“A claim for negligence is subject to Chapter
766’s [presuit] requirements ‘if the wrongful act is directly related to the improper
application of medical services and the use of professional judgment or skill”’ (quoting
Stubbs v. Surgi-Staff, Inc., 78 So. 3d 69, 70 (Fla. 4th DCA 2012))). Appellants argue that
they were not required to comply with the Chapter 766 presuit requirements because
NDA is not a healthcare provider and the TACT protective hold was not medical care or
treatment. While NDA concedes that it is not a healthcare provider, it argues that Chapter
766 applies because NDA would be held vicariously liable since the employees who
administered the TACT protective hold on Perry are healthcare providers under section
766.202(4), Florida Statutes (2008).
This Court’s decisions in Joseph, 71 So. 3d 913 (Fla. 5th DCA 2011), and Pierrot
v. Osceola Mental Health, Inc., 106 So. 3d 491 (Fla. 5th DCA 2013), are helpful in
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analyzing whether Counts I and II constitute medical malpractice claims. In Joseph, the
plaintiff, a patient in a psychiatric facility, filed a negligence complaint against the institute
after another patient punched him. 71 So. 3d at 915. The psychiatric institute contended
that plaintiff’s claims were time-barred medical malpractice claims. Id. at 915-17. This
Court reasoned that the “fact that a wrongful act occurs in a medical setting does not
necessarily mean that it involves medical malpractice” and held that no “psychiatric
treatment decisions resulted in [the plaintiff’s] exposure to the injury he suffered” and,
thus, the suit alleged an ordinary negligence claim and not a medical malpractice claim.
Id. at 917-920. In Pierrot, the plaintiff filed a wrongful death claim against a psychiatric
institute. 106 So. 3d at 492. The institute alleged that plaintiff’s claim was one of medical
negligence. Id. This Court, however, found that the plaintiff’s claim relied exclusively on
statutory standards set by the Baker Act and reasoned that although there is “overlap
between the medical aspects of [the] Baker Act patients’ rights and a cause of action for
medical malpractice, the presuit requirements must be construed narrowly to apply only
to malpractice claims, not to separate statutory claims.” Id. at 494. Thus, this Court held
that plaintiff’s claim was not for medical malpractice. Id. at 493-94.
Even though this case is distinguishable from Joseph in that the injury was caused
by the medical personnel’s actions and not by another patient, the cases are similar in
that the parties disagree about whether the injury resulted from a decision involving
medical skill or judgment. NDA argues that the TACT protective hold was medical
treatment because it was made a part of Perry’s care plan. NDA specifically relies on the
testimony of Nurses Warren and Barclay, who stated that the decision to incorporate such
TACT protective holds into a treatment plan could only be made by a doctor. However,
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DENISE TOWNES, AS POWER
OF ATTORNEY, ET AL.,
Appellants,
v. Case No. 5D14-904
THE NATIONAL DEAF ACADEMY,
LLC, ETC.,
Appellee.
________________________________/
Opinion filed June 17, 2016
Appeal from the Circuit Court
for Lake County,
Mark J. Hill, Judge.
Nicholas A. Shannin and Pamela R. Masters,
of Shannin Law Firm, P.A., Orlando, and
Michael J. Brevda, of Domnick Law, Palm
Beach Gardens, for Appellants.
Mark Hicks, Mary Gniadek, and Shannon
Debus-Horn, of Hicks, Porter, Ebenfeld &
Stein, P.A., Miami, and Julie W. Allison, of
Julie W. Allison, P.A., Miami, for Appellee.
EDWARDS, J.
ON MOTIONS FOR REHEARING, CLARIFICATION, AND CERTIFICATION
We grant Appellee’s motions for clarification and for rehearing in part, and deny
them in part. We deny Appellee’s motions for rehearing en banc and for certification. We
substitute the following opinion in place of our original opinion.
malpractice procedures, they were unaware that NDA’s acts or omissions could be
considered medical malpractice since they were told that NDA was a school, not a
medical facility. Thus, Appellants maintain that the statute of limitations did not begin to
run until NDA’s motion to dismiss was served, arguing this was the date Appellants
“discovered” that Perry’s injury could have resulted from medical malpractice.
“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
. . . .” § 95.11(4)(b), Fla. Stat. (2008). Knowledge “of the injury . . . means not only
knowledge of the injury but also knowledge that there is a reasonable possibility that the
injury was caused by medical malpractice.” Tanner v. Hartog, 618 So. 2d 177, 181 (Fla.
1993) (footnote omitted). The injury alone can “communicate[] the possibility of medical
negligence, in which event the statute of limitations will immediately begin to run upon
discovery of the injury itself.” Id. 181-82. However, “if the injury is such that it is likely to
have occurred from natural causes, the statute will not begin to run until such time as
there is reason to believe that medical malpractice may possibly have occurred.” Id. at
182. Section 95.11(4)(b) “establishes both a subjective component, what the plaintiff
actually knew, and an objective component, what an objectively reasonable plaintiff
should have discovered with the exercise of diligence. A plaintiff’s cause of action
accrues when either component of the discovery rule is satisfied.” Thomas v. Lopez, 982
So. 2d 64, 67 (Fla. 5th DCA 2008).
Because notice or knowledge on the part of Appellants’ counsel can be considered
as notice or knowledge on the part of Appellants, the trial court properly considered
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Appellants’ counsel’s knowledge as evidence in granting summary judgment. See Brooks
Tropicals, Inc. v. Acosta, 959 So. 2d 288, 295 (Fla. 3d DCA 2007). There is evidence in
the record demonstrating that Appellants’ first counsel was aware, as early as 2010, that
Perry’s injuries could have resulted from medical malpractice. On April 13, 2010,
Appellants’ first attorney sent notice to NDA’s counsel of the claims they intended to file,
including a claim for “[p]ersonal injury . . . arising out of the failure to administer and/or
the improper administration of prescription medicine to Cinnette Perry, who was at the
time, a minor patient, student, and client enrolled” at NDA. Thus, this letter indicates that
Appellants’ counsel may have had notice that NDA provided medical services to Perry,
and that there was “a reasonable possibility that the injury was caused by medical
malpractice.” See Tanner, 618 So. 2d at 181.
Additionally, on September 13, 2011, Appellants’ second counsel mailed a letter
to NDA stating that, pursuant to a September 12, 2011, phone call between the two
parties, Appellants intended to pursue an action in general negligence since “other
available or possible theories (i.e. [m]edical negligence) of proceeding, may not be
available due to statutory limitations period having expired.” Clearly, Appellants’ counsel
contemplated a medical malpractice theory in 2011. Appellants contend that the
September 13, 2011, letter informed NDA that a medical malpractice claim against Florida
Hospital was time barred; however, the letter was addressed only to NDA and does not
make any reference to Florida Hospital. The trial court correctly concluded that the
medical malpractice statute of limitations had expired before suit was filed. Thus, final
summary judgment was properly entered on Counts III and IV.
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COUNTS V AND VI RELATE BACK AND ARE NOT TIME BARRED
The trial court also granted NDA’s motion for summary judgment as to Counts V
and VI of the amended complaint, which assert Baker Act claims. The court ruled that
those new counts relied upon newly asserted facts, first alleged after the statute of
limitations had run, and thus did not relate back to the original complaint.
Under Florida Rule of Civil Procedure 1.190(c), “[w]hen the claim or defense
asserted in the amended pleading arose out of the conduct, transaction, or occurrence
set forth or attempted to be set forth in the original pleading, the amendment shall relate
back to the date of the original pleading.” This Court has held that “[a]s with all pleading
rules, this rule is to be liberally interpreted.” Fabbiano v. Demings, 91 So. 3d 893, 894
(Fla. 5th DCA 2012). When an amendment contains the “same general factual situation
as that alleged in the original pleading, then the amendment relates back even though
there is a change in the precise legal description of the rights sought to be enforced, or a
change in the legal theory upon which the action is brought.” Id. at 895 (quoting
Associated Television & Commc’ns, Inc. v. Dutch Vill. Mobile Homes of Melbourne, Ltd.,
347 So. 2d 746, 748 (Fla. 4th DCA 1977)). A “new cause of action . . . can relate back to
the original pleading so long as the new claim is not based on different facts, such that
the defendant would not have ‘fair notice of the general factual situation.’“ Janie Doe 1
ex rel. Miranda v. Sinrod, 117 So. 3d 786, 789 (Fla. 4th DCA 2013) (quoting Dailey v.
Leshin, 792 So. 2d 527, 532 (Fla. 4th DCA 2001)).
The original complaint’s negligence claims against NDA do not refer only to the
August 8th incident and subsequent injury to Perry. Similar to Counts V and VI of the
amended complaint, Count I of Appellants’ original complaint also requires consideration
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of Perry’s care and treatment during the entire time she attended NDA as the negligent
acts alleged included, for example, failure to “properly care for the minor,” failure to
“implement necessary precautions related to” her, and failure “to provide reasonable care”
to Perry.
Therefore, the amended complaint “arises from ‘a common core of operative
facts’” shared with the original complaint. Fabbiano, 91 So. 3d at 896 (quoting Mayle v.
Felix, 545 U.S. 644, 659-60 (2005)). Additionally, since the ordinary negligence claim of
the original complaint requires consideration of the entire time Perry spent at NDA, the
original complaint provides NDA with “fair notice of the general fact situation out of which
the claim or defense arises.” Kalmanowitz v. Amerada Hess Corp., 125 So. 3d 836, 840
(Fla. 4th DCA 2013) (citing Flores v. Riscomp Indus., Inc., 35 So. 3d 146, 148 (Fla. 3d
DCA 2010)). Accordingly, the trial court committed reversible error when it determined
that Counts V and VI of Appellants’ amended complaint did not relate back to the filing
date of the original complaint.
For the reasons stated above, we find that summary judgment was properly
entered against Appellants as to Counts III and IV, but summary judgment should not
have been entered with regard to Counts I, II, V and VI. We affirm in part, reverse in
part, and remand the case for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
LAWSON, C.J. and SAWAYA, J., concur.
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