South Baptist Hospital v. Ashe

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

CASE NO. 1D06-3202

SOUTHERN BAPTIST HOSPITAL
OF FLORIDA, INC.,

Petitioner,

RONALD E. ASHE, as personal
representative for the Estate of DARA
LEIGH ASHE,

Respondent.

_____________________________/

Opinion filed February 8, 2007.

Petition for Writ of Certiorari. Original Jurisdiction.

Harvey L. Jay, III, and Travase L. Erickson of Saalfield, Shad, Jay, Lucas & Stokes,
P.A., Jacksonville, for Petitioner.

Kenneth B. Wright of Bledsoe, Jacobson, Schmidt & Wright, Jacksonville, for
Respondent.

KAHN, J.

By petition for writ of certiorari, Southern Baptist Hospital of Florida argues

the trial judge departed from the essential requirements of law when he found

respondent’s cause of action did not sound in medical malpractice, but instead in

ordinary negligence, thus eliminating the necessity that respondent comply with the

presuit requirements of chapter 766. See § 766.106(2), Fla. Stat. (2003) (requiring

plaintiffs in medical malpractice suits to give notice to all prospective defendants of

the intent to pursue litigation). “[Certiorari review] is appropriate when chapter 766

presuit requirements are at issue.” Okaloosa County v. Custer, 697 So. 2d 1297, 1297

(Fla. 1st DCA 1997). As the trial court did not depart from the essential requirements

of law, we deny certiorari.

A court must, on a case-by-case basis, look to the allegations made in the

complaint when determining whether a suit raises an issue of ordinary negligence or

medical malpractice. See Foshee v. Health Mgmt. Assocs., 675 So. 2d 957, 959 (Fla.

5th DCA 1996) (“The allegations of the complaint, which must be taken as true, are

what determine the facts. It is up to the court to decide from the allegations in the

complaint whether the claim arises ‘out of the rendering of, or the failure to render,

medical care or services.’” (citation omitted)); see also J.B. v. Sacred Heart Hosp. of

Pensacola, 635 So. 2d 945, 949 (Fla. 1994) (looking at the allegations made in

complaint and determining it “does not state a medical malpractice claim”); Tenet St.

Mary’s Inc. v. Serratore, 869 So. 2d 729, 731 (Fla. 4th DCA 2004) (“The gravamen

of Serratore’s complaint for negligence does not arise out of the receiving of medical

care nor does it require that Serratore prove [a deviation] from an accepted standard

of medical care, which is required under section 766.102(1).”); Garcia v. Psychiatric

Insts. of Am., Inc., 693 So. 2d 66, 66 (Fla. 5th DCA 1997) (“The requirement of

presuit notice is fact dependent, and must be premised upon the allegations of the

complaint.”); Broadway v. Bay Hosp., Inc., 638 So. 2d 176, 177 (Fla. 1st DCA 1994)

(“From the face of the complaint, it is apparent that appellants have sued appellee for

the failure to warn of a dangerous condition or properly maintain a piece of

equipment, rather than for breach of some professional standard of care.”).

In the present case, respondent does not challenge any medical diagnosis or

decision that required professional skill or judgment. See Mobley v. Gilbert E.

Hirschberg, P.A., 915 So. 2d 217, 219 (Fla. 4th DCA 2005) (describing the essence

of an action for medical malpractice: “‘The alleged wrongful act must be directly

related to the improper application of medical services to the patient and the use of

professional judgment or skill.’” (quoting Reeves v. N. Broward Hosp. Dist., 821 So.

2d 319, 322 (Fla. 4th DCA 2002))); see also Jackson v. Biscayne Med. Ctr., Inc., 347

So. 2d 721, 722 (Fla. 3d DCA 1977) (“The fact that these acts originate, rather

remotely, from a hospital-patient relationship, will not bring them into the ambit of

medical malpractice. To hold otherwise would lead to the absurd result that every

wrongful act committed by a hospital employee in a hospital surrounding amounts to

medical malpractice.”). Respondent alleges ordinary negligence in petitioner’s release

of respondent’s daughter in violation of mandatory and non-discretionary

requirements of Florida’s Baker Act. See § 394.463(2)(f), Fla. Stat. (2003) (“[An

involuntarily committed patient] may not be released by the receiving facility or its

contractor without the documented approval of a psychiatrist, a clinical psychologist,

or, if the receiving facility is a hospital, the release may also be approved by an

attending emergency department physician with experience in the diagnosis and

treatment of mental and nervous disorders and after completion of an involuntary

examination pursuant to this subsection.”); see also Liles v. P.I.A. Medfield, Inc., 681

So. 2d 711, 712 (Fla. 2d DCA 1995) (“After examining the provisions of the Baker

Act, we conclude that its involuntary commitment procedures do not involve the

rendering of medical care or services. Although a medical diagnosis is necessary in

order to involuntarily commit a patient, the process of complying with the statute does

not require medical skill or judgment.”). As respondent’s complaint states a cause of

action in ordinary negligence, we DENY the petition.

BROWNING, C.J. and WOLF, J., CONCUR.