IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JANE DOE, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-696
BAPTIST PRIMARY CARE,
INC.,
Appellee.
_____________________________/
Opinion filed October 12, 2015.
An appeal from the Circuit Court for Duval County.
L.P. Haddock, Judge.
Theodore S. Pina, Jr., of Nichols & Pina, LLLP, Jacksonville, for Appellant.
Franklin Duke Regan and William Tupper Stone, Jr., of Saalfield, Shad, Stokes,
Inclan, Stoudemire & Stone, P.A., Jacksonville, for Appellee.
SWANSON, J.
Appellant, Jane Doe, appeals the two final orders entered by the trial court
which, taken together, result in the dismissal with prejudice of counts I and II of
her amended complaint. Upon careful consideration of appellant’s arguments on
appeal, as well as the allegations raised within the four corners of her complaint,
we affirm the dismissal of count I, but reverse the dismissal of count II.
According to the Amended Complaint, in June 2006 appellant was
diagnosed with “Human Immune-Deficiency Virus” (“HIV”). She was seen by a
physician employed by appellee, Baptist Primary Care, Inc., who confirmed the
diagnosis and began treatment. Appellant chose to keep the diagnosis private “in
light of the social stigma which is associated with HIV.” In October 2007
appellant’s husband began a new job through which he and appellant obtained
coverage under a group health insurance plan. As a consequence, on October 15,
2007, appellant contacted appellee to request a referral to another physician and
provided appellee with her new insurance information. Appellee’s employee,
Melissa Cotton, was assigned the task of making the referral. Cotton was
specifically instructed to make this referral as soon as possible in light of
appellant’s diagnosis, and was provided the new insurance information containing
the name of the husband’s employer. Sometime after October 15, 2007, however,
Cotton disclosed to her boyfriend that appellant was HIV positive. Coincidentally,
the boyfriend worked for the same employer as did the husband. Later, Cotton
also disclosed appellant’s medical condition to other individuals employed by the
company. Then, in approximately January 2009, appellant’s husband was asked
by his employer to drop appellant from the group health insurance plan, but he
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refused. Several days later, he was terminated from his employment. In
approximately April 2009, Cotton’s boyfriend contacted appellant’s husband and
disclosed to him that appellant was HIV positive.
Count I of the Amended Complaint is entitled “Violation of Privacy by
Disclosure of Private Information.” It alleges that Melissa Cotton, as appellee’s
employee, had access to confidential and private health information concerning
appellant’s status as being HIV positive. It further alleges that Cotton “knew, or
reasonably should have known, that [appellant] expected this medical information
to be kept confidential and private, absent her specific written consent,” and at all
material times, appellee, acting through its employee, Melissa Cotton, “had a duty
pursuant to Baptist Primary Care Policies and Procedures and Florida statutory and
common law to refrain from disclosing [appellant’s] confidential, private, [h]ealth
information without her specific, written consent.” Finally, it alleges appellee
breached that duty by disclosing the “confidential, private” information to
members of the public “without [appellant’s] specific, written, consent.” The
Amended Complaint additionally alleges the information was of no concern to
those to whom it was disclosed “or to the public in general,” was highly offensive
to appellant, and, “[a]s a direct and proximate result of the disclosure, [appellant]
suffered damages including mental anguish and emotional distress, embarrassment,
and humiliation,” which losses are “permanent or continuing[.]”
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Count II is entitled “Negligent Training and Supervision,” and alleges the
following:
20. At all times material, Baptist Primary Care had a duty in
light of the doctor-patient relationship, Florida statutory and common
law and pursuant to its own policies and procedures, to prevent
disclosure of [appellant’s] confidential medical information without
her specific, written consent.
This duty required Baptist Primary Care to ensure that its employees
were properly educated, trained, and supervised in the handling of
such confidential, private, health information.
21. Baptist Primary Care breached its duty to [appellant] in the
following respects:
a. Negligently failing to have in place and enforce adequate and
appropriate policies and procedures to ensure the protection of the
confidential, private, medical information of patients, particularly
those patients with HIV, including [appellant];
b. Negligently failing to provide adequate educational instruction to
its employees as to the regulation and guidelines concerning
disclosure of confidential, private, medical information of patients,
especially those patients with HIV, including [appellant];
22. As a direct and proximate result of the negligence of Baptist
Primary Care as alleged herein, [appellant’s] confidential, private,
medical information, was disclosed to members of the public without
her consent.
23. As a direct and proximate result of the negligence of Baptist
Primary Care and the disclosure of her confidential, private, medical
information, [appellant] suffered damages including mental anguish
and emotional distress, embarrassment, and humiliation. These losses
are permanent or continuing in nature and she will suffer them in the
future.
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In response to appellee’s motion to dismiss the Amended Complaint, the
trial court entered a non-final order in which it dismissed count I, finding appellant
had failed to state a cause of action under Florida’s common law right to privacy.
Nonetheless, it dismissed count I without prejudice and granted appellant twenty
days within which to amend the count. The trial court dismissed count II with
prejudice, however, finding the allegations sounded in medical negligence and
appellant failed to comply with the statute of limitations in section 95.11(4)(b),
Florida Statutes, and the pre-suit notice requirements in chapter 766, Florida
Statutes. Following entry of the order of dismissal, appellant allowed the twenty-
day window to amend count I to lapse and, instead, filed an appeal in this Court.
Because the appeal was premature, we exercised our discretion accorded by
Florida Rule of Appellate Procedure 9.110(l), and relinquished jurisdiction to the
trial court in order “to obtain a final appealable order from the lower tribunal.”
During the period of relinquished jurisdiction, appellee filed a second motion again
asking the court to dismiss count I, but adding a second ground urging the trial
court to dismiss the count as a sanction for appellant’s failure to amend it within
the twenty days granted by the court. In response, appellant filed a motion to strike
appellee’s motion to dismiss, stating: “It is the order granting the previous Motion
which needs to be amended.” On March 24, 2015, the trial court acquiesced in
appellee’s request and entered its final Order Dismissing with Prejudice Count I of
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Plaintiff’s Amended Complaint as a sanction, finding appellant “knowingly failed
to file an amendment to Count I of the Amended Complaint within the time the
court allotted,” and “offered no explanation on the record of this matter.” In light
of these findings, the trial court concluded “the record warrants dismissal with
prejudice of Count I of the Amended Complaint, there being no sanction less
severe which appears to be a viable alternative.” Appellant filed the foregoing
order in this Court, jurisdiction was at last properly invoked, and the parties filed
their respective briefs. We now turn to resolving the two points raised on appeal
by appellant.
POINT I
Despite the trial court’s explicit order dismissing count I with prejudice as a
sanction for appellant’s failure to amend the count, under Point I of her initial
brief, appellant completely ignores the ruling and, instead, addresses the merits of
the trial court’s initial order dismissing the count without prejudice for failing to
state a cause of action for which relief could be granted. Although, in its answer
brief, appellee argues at some length its position that the trial court did not abuse
its discretion in dismissing the count as a sanction, appellant chose not to file a
reply brief addressing that argument.
Our exclusive duty as a court of appeal is “to determine whether the [lower
tribunal] made any ruling or conducted the proceedings in a manner contrary to
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established principles of law to the prejudice of the appellant.” Fla. Dep’t of
Corrections v. Bradley, 510 So. 2d 1122, 1124 (Fla. 1st DCA 1987) (quoting
Carolina Lumber Co. v. Daniel, 97 So. 2d 156, 158 (Fla. 1st DCA 1957)). In that
respect, the decision of the trial court enjoys a presumption of correctness and the
burden falls to the appellant to demonstrate error. Applegate v. Barnett Bank of
Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). “‘An appellant who presents no
argument as to why a trial court’s ruling is incorrect on an issue has abandoned the
issue[.]’” Davis v. State, 153 So. 3d 399, 400 (Fla. 1st DCA 2014). As the Fourth
District Court of Appeal observed:
This Court will not depart from its dispassionate role and become an
advocate by second guessing counsel and advancing for him theories
and defenses which counsel either intentionally or unintentionally has
chosen not to mention. It is the duty of counsel to prepare appellate
briefs so as to acquaint the Court with the material facts, the points of
law involved, and the legal arguments supporting the positions of the
respective parties. See Estate of Barret, 137 So. 2d 587 (Fla. 1st DCA
1962) and Clonts v. Spurway, 104 Fla. 340, 139 So. 896 (1932).
When points, positions, facts and supporting authorities are omitted
from the brief, a court is entitled to believe that such are waived,
abandoned, or deemed by counsel to be unworthy. Again, it is not the
function of the Court to rebrief an appeal. We basically work within
the framework of the briefs although, admittedly, there are instances
where errors are so glaring or fundamental that a court will adjudicate
them on its own initiative in its original opinion.
Polyglot Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983)
(on motion for rehearing). See also City of Miami v. Steckloff, 111 So. 2d 446,
447 (Fla. 1959) (“[P]oints covered by a decree of the trial court will not be
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considered by an appellate court unless they are properly raised and discussed in
the briefs.”); Anheuser-Busch Co. v. Staples, 125 So. 3d 309, 312 (Fla. 1st DCA
2013) (holding an appellate court is “not at liberty to address issues that were not
raised by the parties”); David M. Dresdner, M.D., P.A. v. Charter Oaks Fire Ins.
Co., 972 So. 2d 275, 281 (Fla. 2d DCA 2008) (deeming any potential issue
pertaining to the final judgment for attorney’s fees and costs waived or abandoned
as no argument regarding the issue was made on appeal). The fact that appellant
raised her objection in her motion to strike appellee’s second motion to dismiss is
illuminating. It reveals appellant was clearly on notice of how the trial court might
rule in light of appellee’s alternative theory for the dismissal of count I. By her
failure to address that alternative basis in Point I of her initial brief, the trial court’s
final order as it relates to count I stands uncontested. In short, we hold that in light
of her silence on the singular reason why the trial court dismissed count I in its
final order, appellant has abandoned the argument for reversal. Consequently, we
affirm the dismissal of count I of appellant’s Amended Complaint.
POINT II
The trial court’s reasons for dismissing count II of the Amended Complaint
are twofold: (1) the count is barred by the two-year statute of limitations for
medical malpractice claims, and (2) appellant failed to comply with the mandatory
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pre-suit screening requirements found in chapter 766, Florida Statutes. Underlying
those reasons is the trial court’s finding that the allegations in count II
raise issues of medical negligence, as the allegations arise out of the
receiving of medical care and require proof that the alleged actions of
[appellee] herein represented a breach of the prevailing professional
standard of care in the hiring, training, supervision, or retention of
[appellee’s] employee who divulged the information to her boyfriend.
(Emphasis added.) Under the trial court’s first reason for dismissing count II,
appellant was required to file her claim within the two-year statute of limitations
for medical malpractice claims, as dictated by sections 95.11(4)(b) and 766.106(4),
Florida Statutes. The court, however, found more than two years had elapsed
between the last alleged disclosure by the employee, Melissa Cotton, and the filing
of the appellant’s lawsuit. Furthermore, the trial court ruled that appellant’s failure
to comply with the pre-suit screening requirements found in chapter 766, Florida
Statutes, was “fatal” to her medical malpractice claim.
When evaluating a motion to dismiss for failure to state a cause of action,
“‘the trial court must accept the allegations of the complaint as true.
Likewise, the appellate court must accept the facts alleged in a
complaint as true when reviewing an order that determines the
sufficiency of the complaint. Whether a complaint is sufficient to
state a cause of action is an issue of law. Consequently, a ruling on a
motion to dismiss for failure to state a cause of action is reviewable on
appeal by the de novo standard of review.’”
Locker v. United Pharm. Grp., Inc., 46 So. 3d 1126, 1128 (Fla. 1st DCA 2010)
(quoting Brewer v. Clerk of Cir. Ct., Gadsden Cnty., 720 So. 2d 602, 603 (Fla. 1st
9
DCA1998), quoting Sarkis v. Pafford Oil Co., Inc., 697 So. 2d 524, 526 (Fla. 1st
DCA 1997)). Appellee’s motion to dismiss admitted all well-pleaded facts and all
reasonable inferences that arguably arose from those facts, and the trial court could
not look beyond the four corners of the complaint in deciding the motion. Stubbs
v. Plantation Gen. Hosp. Ltd. P’ship, 988 So. 2d 683, 684 (Fla. 4th DCA 2008).
Applying these principles to the instant order of dismissal, our singular task
is to “‘decide from [the allegations] whether the claim arises out of the rendering
of, or the failure to render, medical care or services.’” Shands Teaching Hosp. &
Clinics, Inc. v. Estate of Ashley Lawson, 40 Fla. L. Weekly D2000, D2000 (Fla.
1st DCA Aug. 28, 2015) (quoting Baptist Hosp. of Fla., Inc. v. Ashe, 948 So. 2d
889, 890 (Fla. 1st DCA 2007)) (internal quotation marks omitted). We are mindful
in completing this task, however, of the Florida Supreme Court’s cautionary rule
expressed in Integrated Health Care Services, Inc. v. Lang-Redway, 840 So. 2d
974, 980 (Fla. 2002), wherein it emphasized that the provisions of chapter 766
“should be construed in a manner that favors access to courts.’” Id. (quoting Patry
v. Capps, 633 So. 2d 9, 13 (Fla. 1994)).
As regards the application of the statute of limitations in sections 95.11(4)(b)
and 766.106(4), the supreme court in J.B. v. Sacred Heart Hospital of Pensacola,
635 So. 2d 945 (Fla. 1994), ruled the key inquiry is whether the action “‘aris[es]
out of any medical, dental, or surgical diagnosis, treatment, or care.’” Id. at 947
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(quoting § 95.11(4)(b), Fla. Stat.). If doubt exists over the applicability of the
statute, the supreme court held “the question is generally resolved in favor of the
claimant.” Id. In analyzing the statute of limitations issue in J.B., the supreme
court accorded the terms, “diagnosis,” “treatment,” and “care,” their ordinary
meanings:
“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. This parallels the dictionary
definitions of those terms. According to Webster’s Third
International Dictionary (1981), ‘diagnosis’ means ‘the art or act of
identifying a disease from its signs and symptoms.’ ‘Treatment’
means ‘the action or manner of treating a patient medically or
surgically.’ ‘Care’ means ‘provide for or attend to needs or perform
necessary personal services (as for a patient or child).’ Likewise, in
medical terms, ‘diagnosis’ means ‘[t]he determination of the nature of
a disease.’ ‘Treatment’ means ‘[m]edical or surgical management of
a patient.’ And ‘care’ means ‘the application of knowledge to the
benefit of . . . [an] individual.’”
Id. at 948 (quoting Silva v. Sw. Fla. Blood Bank, Inc., 601 So. 2d 1184, 1187 (Fla.
1992)).
In J.B., J.B.’s brother, L.B., an AIDS patient, was receiving treatment from
Sacred Heart Hospital in Pensacola, Florida. According to the allegations in the
complaint, the hospital was requested by its medical staff to have L.B. transferred
to another treatment facility in Alabama. Because social services were unable to
provide the necessary transportation by ambulance, J.B., a layman with no medical
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training, was contacted and agreed to drive L.B. to Alabama, all the while under
the impression that L.B. was suffering from Lyme’s Disease. L.B. was released to
J.B.’s care with a raging fever and a heparin lock in his arm. During the trip, L.B.
“‘began to thrash about and accidentally dislodged the dressing to his heparin lock
causing J.B. to reach over while driving in an attempt to prevent the lock from
coming out of L.B.’s arm.’” J.B., 635 So. 2d at 947 (quoting the allegations in the
complaint). In the process, J.B. came into contact with fluids seeping from around
the lock site. J.B. subsequently contracted AIDS. He sued the hospital for
negligence in arranging the transportation, “in that it knew of L.B.’s condition, the
level of care that would be required in transporting him, and the risk involved[.]”
Id. The questions presented to the the supreme court were whether section
95.11(4)(b) applied to bar the action, and whether chapter 766 applied to the cause
of action. In deciding whether the statute of limitations in section 95.11(4)(b)
applied to defeat J.B.’s claim against the hospital, the supreme court concluded that
Silva v. Southwest Florida Blood Bank, Inc., was dispositive of the issue. It said:
According to the allegations in J.B.’s complaint, at the time the
Hospital contacted him to drive his brother to Alabama, J.B. had no
medical condition for which he sought medical services at the
Hospital. His injury arose solely through the Hospital’s use of him as
a transporter. The simple question we must decide is whether this
injury arose from the Hospital’s medical diagnosis, treatment, or care
of J.B. Applying the law as set forth in Silva, we conclude that it did
not. Accordingly, this suit is not a medical malpractice action for
chapter 95 purposes and the two-year statute of limitations is
inapplicable.
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Id. (emphasis added).
As for the applicability of chapter 766, the supreme court read section
766.106(1)(a), Florida Statutes (defining a claim for medical negligence), and
section 766.202, Florida Statutes (defining “medical negligence” as “medical
malpractice”), “in conjunction” and concluded “chapter 766’s notice and presuit
screening requirements apply to claims that ‘aris[e] out of the rendering of, or the
failure to render, medical care or services.’” Id. at 949 (citing section
766.106(1)(a)). Looking to the allegations in the complaint, the supreme court
noted J.B. claimed the hospital was negligent in using him to transport his brother.
It observed the complaint “does not allege that the Hospital was negligent in any
way in the rendering of, or the failure to render, medical care or services to J.B.”
Id. Accordingly, it concluded the complaint did not “state a medical malpractice
claim for chapter 766 purposes, and the notice and presuit screening requirements
[were] inapplicable.” Id.
Applying the supreme court’s rationale expressed in J.B. to the Amended
Complaint in the present case, and taking as true the well-pleaded allegations set
forth therein, we conclude that appellant’s claimed injury allegedly caused by the
divulgence of medical information by appellee’s employee to third parties did not
stem from appellee’s provision of a medical diagnosis, treatment, or care to
appellant, but from simple negligence. See Bell v. Indian River Mem’l Hosp., 778
13
So. 2d 1030, 1033-34 (Fla. 4th DCA 2001) (citing J.B.); Lynn v. Mount Sinai Med.
Ctr., Inc., 692 So. 2d 1002, 1003 (Fla. 3d DCA 1997) (explaining that “[m]erely
because a wrongful act occurs in a medical setting does not necessarily mean that it
involves medical malpractice,” and concluding “[t]he wrongful act must be directly
related to the improper application of medical services, and the use of professional
judgment or skill”); Liles v. P.I.A. Medfield, Inc., 681 So. 2d 711, 712 (Fla. 2d
DCA 1995) (holding “not every wrongful act by a health care provider amounts to
medical malpractice”); Stackhouse v. Emerson, 611 So. 2d 1365 (Fla. 5th DCA
1993) (ruling that a plaintiff was entitled to plead claims of intentional torts
unrelated to, or independent of, medical diagnosis, care or treatment). Thus,
appellant’s complaint, likewise, does not state a cause of action for medical
malpractice, and neither the two-year statute of limitations period in section
95.11(4)(b), nor the pre-suit notice requirement in chapter 766 apply to defeat
appellant’s claim.
We further conclude that our recent en banc decision in Shands Teaching
Hospital & Clinics, Inc. v. Estate of Ashley Lawson does not persuade us to hold
otherwise. In Shands, the deceased patient had been receiving psychiatric
treatment from the hospital in a manner directly calculated to keep her in a locked
unit, which was “the service that Ms. Lawson’s condition allegedly required.” 40
Fla. L. Weekly at D2001 (emphasis in original). Thus, contrary to the explicit
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allegations in the complaint claiming the action was not one for medical
negligence, we stressed that courts “must look beyond legal labels urged by
plaintiffs and ‘must[] apply the law to the well-pleaded factual allegations and
decide the legal issue of whether the complaint sounds in simple or medical
negligence.’” Id. (quoting Dr. Navarro’s Vein Ctr. of Palm Beach, Inc. v. Miller,
22 So. 3d 776, 778 (Fla. 4th DCA 2009)). In contrast, in the present case, we are
presented with no “legal labels.” The alleged history of past medical treatment that
had been provided to appellant by appellee does not serve to define the alleged
negligent acts of appellee’s employee.
This is not a case where “the factual allegations belie the conclusory legal
allegations.” Dr. Navarro’s Vein Ctr. of Palm Beach, Inc. v. Miller, 22 So. 3d at
778. Nor is it a case where the factual allegations suggest any “medical skill or
judgment” was exercised by appellee in training its employees not to disseminate
its patients’ medical conditions to the public. Rather, we conclude this case
belongs to the category of cases recognized in Shands as not implicating medical
standards of care. See, e.g., Quintanilla v. Coral Gables Hosp., Inc., 941 So. 2d
468 (Fla. 3d DCA 2006) (involving the spilling of hot tea on a patient); Tenet St.
Mary’s Inc. v. Serratore, 869 So. 2d 729 (Fla. 4th DCA 2004) (considering the
allegation of the inadvertent kicking of a patient); Lake Shore Hosp., Inc. v.
Clarke, 768 So. 2d 1251 (Fla. 1st DCA 2000) (involving a slip and fall injury in the
15
hospital); but cf. Palms W. Hosp. Ltd. P’ship v. Burns, 83 So. 3d 785 (Fla. 4th
DCA 2011), rev. dismissed, 139 So. 3d 867 (Fla. 2014) (holding the trial court
departed from the essential requirements of the law in denying the hospital’s
motion to dismiss where the choice of the hospital’s physicians not to treat the
plaintiff in the emergency room, which choice allegedly caused the plaintiff’s
death, called up the standard of care involved in the hospital’s evaluation and
treatment of the plaintiff and, therefore, the complaint stated a cause of action for
medical malpractice). As we stressed in Shands, in those situations presented in
the above-cited cases, “medical standards of care didn’t matter,” and “[j]urors
could resolve the negligence question by referring to common experience[.]” 40
Fla. L. Weekly at D2001. The same can be said of the instant case. Consequently,
we hold this is not a medical malpractice case and the trial court erred in
dismissing count II of the Amended Complaint.
AFFIRMED, in part, REVERSED, in part, and REMANDED for further
proceedings consistent with this opinion.
OSTERHAUS and KELSEY, JJ., CONCUR.
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