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2020 CASE LAW AND REGULATORY UPDATE
Presented by Karissa L. Owens with special appearance by Isaac R. Ruiz-Carus
Rissman Barrett Hurt Donahue McLain & Mangan, P.A.
Bridging the Gap in Risk Management and Patient SafetyAugust 18-21, 2020
Florida Appellate Decisions
Procedural Challenges
7
1DiscoveryDispute
1Motion For Summary Judgment
1Trial
Bridging the Gap in Risk Management and Patient Safety
Staying SafeWhile NavigatingUncharted Waters
McManus v. Gamez,276 So. 3d 1005 (Fla. 2d DCA 2019)
• Claim arose out of patient fall off exam table at physician’soffice after completion of neurologic testing
• Lee County trial court dismissed complaint with prejudice
• Second DCA reversed concluding the allegations weregrounded in ordinary negligence because defendantphysician was not rendering medical care at the time ofthe fall
• Recognized Florida Supreme Court’s description of patientfall cases as a “gray area”
Procedural Challenges:Failure To Comply With Pre-suit Statutes
Procedural Challenges:Failure To Comply With Pre-suit Statutes
N. Broward Hosp. Dist. v. Slusher,279 So. 3d 162 (Fla. 4th DCA 2019)
• Claim arose out of patient fall while nurse assistingout of hospital bed to use restroom
• Broward County trial court denied hospital’smotion to dismiss
• Fourth DCA concluded that the claim centered onprofessional judgment = medical negligence
• Hospital’s Petition for Writ of Certiorari was granted andtrial court’s order denying motion to dismiss was quashed
Rockledge HMA, LLC v. Lawley,45 Fla. L. Weekly D1282b (Fla. 5th DCA 2020)
• Claim arose out of death of patient while awaiting ICUplacement allegedly due to failure to transfer to anotherfacility because of scheme to increase hospital admissionrates
• Brevard County trial court denied defendant medicalproviders’ motion to dismiss
• Fifth DCA concluded that the claim centered on professionaljudgment = medical negligence
• Defendants’ Petition for Writ of Certiorari was grantedand trial court’s order denying motion to dismiss wasquashed
Procedural Challenges:Failure To Comply With Pre-suit Statutes
Bridging the Gap in Risk Management and Patient Safety
Procedural Challenges:Failure To Comply With Pre-suit Statutes
Procedural Challenges:Failure To Comply With Pre-suit Statutes
Howell v. Balchunas,284 So. 3d 1180 (Fla. 1st DCA 2019)
• Claim arose out of alleged incorrect interpretationof pulmonary CT angiogram
• Escambia County trial court dismissed claim withprejudice
• First DCA affirmed because a corroborating pre-suit expert’s affidavit must corroborate bothnegligence and causation (of injury of consequence)
Procedural Challenges:Failure To Comply With Pre-suit Statutes
Brundage v. Evans,45 Fla. L. Weekly D627 (Fla. 2d DCA 2020)
• Claim arose out of alleged medical negligence that resultedin the patient’s death after an elective colostomy reversalsurgery
• Pinellas County trial court denied the defendant medicalproviders’ motion to dismiss
• Second DCA concluded that the waiver provision in § 766.204was not triggered by defendant physician’s failure to timelyrespond to informal pre-suit discovery request made duringpre-suit investigation and that the claimant’s corroboratingexpert affidavit must be served with the notice of intent as acondition precedent to filing suit
• Petition for Writ of Certiorari granted and the trial court’s order denying the motion to dismiss was quashed
Procedural Challenges:Failure To Comply With Statute Of Limitations
Procedural Challenges:Failure To Comply With Statute Of Limitations
Mobley v. Homestead Hosp., Inc.,291 So. 3d 987 (Fla. 3d DCA 2019)
• Claim arose out of alleged birth-related neurologicalinjury in 2009
• Miami-Dade County trial court granted final summaryjudgment for hospital on statute of limitations defense
• Third DCA concluded that there was a genuine issue of factas to when the statute of limitations began and that theissue was a fact-specific determination to be made by a jury
9/2009Delivery
4/2010GERD & Lazy Eye
5/2010Attorney 1 Requests Hospital Chart
10/2011NICA Claim
11/2012Spastic CP
11/2013Complaint
Procedural Challenges:Failure To Comply With Statute Of Limitations
Mobley v. Homestead Hosp., Inc.,291 So. 3d 987 (Fla. 3d DCA 2019)
• Claim arose out of alleged birth-related neurologicalinjury in 2009
• Miami-Dade County trial court granted final summaryjudgment for hospital on statute of limitations defense
• Third DCA concluded that there was a genuine issue of factas to when the statute of limitations began and that theissue was a fact-specific determination to be made by a jury
9/2009Delivery
4/2010GERD & Lazy Eye
5/2010Attorney 1 Requests Hospital Chart
10/2011NICA Claim
11/2012Spastic CP
11/2013Complaint
Procedural Challenges:Failure To Comply With Statute Of Limitations
Procedural Challenges:Failure To Comply With Statute Of Reposes
Boyle v. Samotin,45 Fla. L. Weekly D1577e (Fla. 2d DCA July 1, 2020)• Claim arose out of alleged medical negligence during foot
surgery and the parties stipulated as to when the statute ofrepose period expired
• Collier County trial court granted final summary judgmentfor physician on statute of repose defense because theclaimant served his NOI before the expiration date but theNOI was received by the defendant AFTER the repose periodexpired
• Second DCA affirmed but identified conflict with the Fourthand Fifth DCAs
Trial Errors:Fabre And Empty Chair Defenses
Trial Errors:Fabre And Empty Chair Defenses
Bd. of Trustees v. Carter,45 Fla. L. Weekly D1224e (Fla. 2d DCA 2020)
• Claim arose out of alleged complications from abdominallaparoscopic surgery that resulted in multiple subsequentsurgeries, a 5 month hospitalization and catastrophic injuries
• Hillsborough County trial court denied defendant hospital’srequest to pursue Fabre defense and present empty chairdefense during trial that resulted in a verdict for the plaintiff
Trial Errors:Fabre And Empty Chair Defenses
Bd. of Trustees v. Carter,45 Fla. L. Weekly D1224e (Fla. 2d DCA 2020)
• Claim arose out of alleged complications from abdominallaparoscopic surgery that resulted in multiple subsequentsurgeries, a 5 month hospitalization and catastrophic injuries
• Hillsborough County trial court denied defendant hospital’srequest to pursue Fabre defense and present empty chairdefense during trial that resulted in a verdict for the plaintiff
• Second DCA reversed concluding that it was a violation of thehospital’s due process rights to deprive it of its causationdefense that the surgeon’s negligence was not the legal causeof the alleged damages and that use of 501.5(c) juryinstruction (advising that the hospital was responsible for thenegligence of other tortfeasors) was improper
Nursing Home Litigation:Financial Worth Discovery
Fair Havens Ctr. v. Estate of Nicula,45 Fla. L. Weekly D1566a (Fla. 3d DCA July 1, 2020)• Claim arose out of death of resident of nursing home following
slip and fall
• Miami-Dade County trial court compelled discovery ofnursing home’s financial worth including deposition ofcorporate representative and production of documents
• Third DCA concluded that the burden is on the moving partyto establish relevancy and the trial court should haveconducted a hearing to establish whether discovery relevantto some issue in the case
• Petition for Writ of Certiorari granted and trial court’s order quashed
Summary Judgment Standard
Wendel v. Trs. of Mease Hospital, Inc.,291 So. 3d 1000 (Fla. 2d DCA 2020)
• Claim by pro se claimant arose out of alleged contraction ofMRSA infection while working as a hospital volunteer
• Pinellas County trial court granted hospital’s motion forsummary final judgment due to lack of evidence thathospital’s alleged negligence was the legal cause of theinfection
• Second DCA reversed concluding that the wrong summaryjudgment standard had been applied and burden on hospitalto conclusively show that no causal relationship existed
• Certified questions to the Florida Supreme Court as to whether the U.S.Supreme Court’s 1986 standard should be adopted in Florida
Regulatory Update
2019 Legislative Session• Proposed revision to 59A-3.270 (2019 HB 843): Health Information Management
• Rule to address required hospital forms to be used pursuant to §§ 395.1012 (form with info regarding patient safety and quality measures) and395.301 (form to notify non-Medicare patients of observation status)
• Rule published March 25, 2020
2020 Legislative Session• HB 763 (Patient Safety Culture Surveys)
• Chapter No. 2020-134 effective July 1, 2020• Approved by the Governor June 29, 2020
• HB 731 (AHCA)• Chapter No. 2020-157 or 2020-156 effective July 1, 2020• Approved by the Governor June 30, 2020
• HB 713 (DOH)• Chapter No. 2020-133 effective July 1, 2020• Approved by the Governor June 29, 2020
