HOSPITAL SPECIALISTS, P.A. v. KATHLEEN DEEN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM ALVIN DEEN, ABDI ABBASSI, M.D., AND DIGESTIVE DISEASE CONSULTANTS, LLC, A LIMITED LIABILITY COMANY

FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

Case No. 5D23-346
LT Case No. 16-2020-CA-000341
_____________________________

HOSPITAL SPECIALISTS, P.A.,

Appellant,

v.

KATHLEEN DEEN, as personal
representative of the estate of
William Alvin Deen, deceased,
ABDI ABBASSI, M.D. and
DIGESTIVE DISEASE
CONSULTANTS, LLC, a limited
liability company, ET AL.,

Appellees.
_____________________________

Nonfinal Appeal of Order from the Circuit Court for Duval County.
Bruce R. Anderson, Jr., Judge.

Brian M. Pederson and Davis C. Love, of Childs, Hester & Love,
P.A., Jacksonville, for Appellant.

Thomas S. Edwards, Jr., of Edwards & Ragatz, P.A., Jacksonville,
for Appellee, Kathleen Deen, as personal representative of the
estate of William Alvin Deen, deceased.

No Appearance for Other Appellees.

November 21, 2023
LAMBERT, J.

Hospital Specialists, P.A., (“Hospital Specialists”) appeals a
nonfinal order entered by the trial court granting the motion of
Appellee, Kathleen Deen, as personal representative of the estate
of William Alvin Deen, deceased, to amend a wrongful death
medical malpractice complaint to assert a claim for punitive
damages. 1 Concluding that the record evidence and the proffered
evidence do not reasonably show that Hospital Specialists engaged
in the behavior described and defined in section 768.72(2) and (3),
Florida Statutes (2017), as required for the recovery of punitive
damages, we reverse.

BACKGROUND

According to the operative complaint, Hospital Specialists is a
Florida professional association providing hospitalist 2 services at
St. Vincent’s Medical Center (“St. Vincent’s”) in Jacksonville,
Florida. On June 8, 2018, William Alvin Deen presented himself
to the emergency room at St. Vincent’s complaining of abdominal
pain following a colonoscopy. A CT scan of Deen’s abdomen
revealed that his colon had been perforated, which Appellee
asserted was related to the colonoscopy. Deen was then admitted
for surgery to repair his colon.

At approximately 8:20 p.m. that same evening, the nurses on
duty noted that Deen was hypotensive (had low blood pressure)
and drowsy. As Hospital Specialists was providing medical care to
Deen while he was a patient in St. Vincent’s, the nurses contacted
Hospital Specialists’ after-hours answering service to inform about
Deen’s condition. Robert Lancaster, an advanced registered nurse
practitioner (“ARNP”) who, on an independent contractor basis,

1 We have jurisdiction under Florida Rule of Appellate
Procedure 9.130(a)(3)(G).
2 Hospitalists are specialists in inpatient medicine who work

in a hospital. Robert M. Wachter & Lee Goldman, The Emerging
Role of “Hospitalists” in the American Health Care System, 334, no.
7 New England J. of Med. 514 (1996).

2
provided services on behalf of Hospital Specialists, responded to
the call and ordered that Deen be administered an intravenous
saline bolus.

Hospital Specialists’ next contact regarding Deen was the
following morning, June 9th, at approximately 5:45 a.m., when the
hospital nursing staff notified Lancaster to advise that Deen was
again hypotensive and that he now also had critically elevated
troponin 3 levels. An EKG was performed that showed that Deen
had suffered an acute myocardial infarction. 4 Lancaster ordered
an immediate consult with a cardiologist. Deen was taken to a
cardiac catheterization lab where a stent was implanted. He later
went into respiratory failure and was intubated. Deen passed
away the following morning.

Appellee sued various parties alleging that their negligence
resulted in Deen’s death. Pertinent here, Appellee alleged that
Hospital Specialists was vicariously liable for Lancaster’s
negligence. She asserted that Lancaster had failed to properly
assess and diagnose Deen and that he did not timely and
appropriately react thereafter to Deen’s symptoms. Appellee
alleged that, within a reasonable degree of medical probability,
had Deen been provided with the appropriate care, he would not
have suffered the myocardial infarction which led to his ultimate
death.

Appellee later moved under section 768.72, Florida Statutes,
and Florida Rule of Civil Procedure 1.190 to amend her complaint
to assert a claim for punitive damages. In the proposed amended

3 Troponin is a complex of three proteins integral to
regulating, among other things, the contraction of the cardiac
muscle. See Johannes Mair et al., Clinical Significance of Cardiac
Contractile Proteins for the Diagnosis of Myocardial Injury, 31
Advances in Clinical Chemistry 63 (1994).
4 An acute myocardial infarction is more commonly known as

a heart attack. Moussa Saleh & John A. Ambrose, Understanding
Myocardial Infarction, Nat’l Library of Med. (Sept. 3, 2018),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6124376/.

3
complaint, Appellee alleged that Hospital Specialists, through its
president, Dr. Ateeque Khan, committed acts of intentional
misconduct or gross negligence by assigning Lancaster, a nurse
practitioner, to provide after-hours care to Deen, a patient with
complex health problems that were beyond Lancaster’s
permissible scope of practice. Appellee further alleged that by
doing so, Hospital Specialists violated its own written practice
protocol, which limited Lancaster’s care of its patients to those
with “common health problems,” and that, through Dr. Khan, it
had thus condoned, ratified, or consented to the alleged grossly
negligent care that Lancaster provided to Deen.

The trial court held a hearing on the motion to amend.
Medical records, deposition transcripts, and Hospital Specialists’
written protocol establishing the framework of the duties between
Lancaster and Hospital Specialists were proffered to the court for
consideration; however, no live testimony was presented.

In the order granting Appellee’s motion, the trial court found
that Deen was a patient with complex health problems. It
determined that by having Lancaster, instead of Dr. Khan, who
was Lancaster’s supervising physician, respond to the hospital
nursing staff after-hours call regarding Deen’s deteriorating
condition, Hospital Specialists violated its own written protocol
and section 464.012, Florida Statutes, by allowing Lancaster to
treat a patient with complex health problems.

The trial court also found that Dr. Khan failed to implement
any measures to ensure that either Lancaster or the hospital staff
would contact him directly pertaining to Deen’s physical condition.
The court concluded that Dr. Khan had thus ratified, condoned,
and consented to Lancaster’s decisions on how best to treat Deen
and that Hospital Specialists had actively and knowingly
participated in conduct that would warrant punitive damages.

STANDARD OF REVIEW

Our review of a trial court’s order on a motion for leave to
amend a complaint to assert a claim for punitive damages is de
novo. Werner Enters., Inc. v. Mendez, 362 So. 3d 278, 281 (Fla. 5th
DCA 2023) (citing Grove Isle Ass’n v. Lindzon, 350 So. 3d 826, 829

4
(Fla. 3d DCA 2022)); Fed. Ins. v. Perlmutter, 48 Fla. L. Weekly
D1903 (Fla. 4th DCA Sept. 27, 2023) (“Because the trial court
properly did not consider live witness testimony in ruling on the
motion [to amend the complaint to assert a claim for punitive
damages], our review is de novo.” (citing Cleveland Clinic Fla.
Health Sys. Nonprofit Corp. v. Oriolo, 357 So. 3d 703, 705 (Fla. 4th
DCA 2023))). In conducting our de novo review, we consider the
record evidence and the proffered evidence in the light most
favorable to the plaintiff. Est. of Blakely by and through Wilson v.
Stetson Univ., Inc., 355 So. 3d 476, 481 (Fla. 5th DCA 2022) (citing
Est. of Despain v. Avante Grp., Inc., 900 So. 2d 637, 644 (Fla. 5th
DCA 2005)).

AN OVERVIEW OF PUNITIVE DAMAGES CLAIMS

Section 768.72, Florida Statutes (2017), is titled “Pleading in
civil actions; claim for punitive damages.” Subsection (1) of this
statute provides that no claim for punitive damages in a civil
action shall be permitted “unless there is a reasonable showing by
evidence in the record or proffered by the claimant which would
provide a reasonable basis for recovery of such damages.” See also
Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995)
(explaining that section 768.72 creates a substantive legal right for
a party not to be subject to a punitive damages claim unless a trial
court first determines that there is a reasonable basis for the
recovery of such damages).

Resultingly, a punitive damages claim is not properly pled in
the initial complaint; instead, under section 768.72(1), a plaintiff,
as allowed by the rules of civil procedure, may move to amend his
or her complaint to obtain court approval to assert a claim for
punitive damages. Once the motion is filed and set for hearing,
the trial court is tasked with being a “gatekeeper” to assess
whether the claimant has shown a reasonable evidentiary basis for
the recovery of punitive damages. See Varnedore v. Copeland, 210
So. 3d 741, 745 (Fla. 5th DCA 2017) (noting that a trial court
functions as a gatekeeper when assessing whether a plaintiff’s
specific claim may justify an award of punitive damages). This
gatekeeping obligation similarly tasks the trial court with
preventing a party from being subjected to a punitive damages

5
claim when no reasonable basis for these damages has been shown.
Bistline v. Rogers, 215 So. 3d 607, 611 (Fla. 4th DCA 2017).

Here, Appellee seeks punitive damages against Hospital
Specialists for allowing Lancaster to treat Deen, a patient with
highly complex problems. For punitive damages to be imposed
against an employer, principal, corporation, or other legal entity
for the conduct of one of its employees or agents, the employee or
agent’s behavior or actions must be of such a nature to constitute
“intentional misconduct” or “gross negligence.” See § 768.72(2)–
(3). The term “intentional misconduct” means “that the defendant
had actual knowledge of the wrongfulness of the conduct and the
high probability that injury or damage to the claimant would
result and, despite that knowledge, intentionally pursued that
course of conduct, resulting in injury or damage.” § 768.72(2)(a).
“Gross negligence” is separately defined in the statute as conduct
that “was so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights of
persons exposed to such conduct.” § 768.72(2)(b).

If the conduct of the employee or agent meets either
threshold, then, under section 768.72(3), the employer, principal,
corporation, or legal entity may be subject to punitive damages if:
(1) it actively and knowingly participated in such conduct; (2) its
officers, directors, or managers knowingly condoned, ratified, or
consented to such conduct; or (3) the officers, directors, or
managers engaged in conduct that constituted gross negligence
and that contributed to the loss, damages, or injury suffered by the
claimant.

Courts are also reminded that when analyzing a motion to
amend brought under section 768.72, punitive damages are not
intended to be compensation for injury but instead “are private
fines levied by civil juries to punish reprehensible conduct and to
deter its future occurrence.” Perlmutter, 48 Fla. L. Weekly at
D1903 (quoting Cooper Indus., Inc. v. Leatherman Tool Grp., Inc.,
532 U.S. 424, 432 (2001)). Punitive damages are reserved only for
conduct that is “so outrageous in character, and so extreme in
degree . . . [that] the facts [of the case] to an average member of
the community would arouse his resentment against the actor, and

6
lead him to exclaim, ‘Outrageous!’” Id. (alterations in original)
(quoting Oriolo, 357 So. 3d at 706).

In that vein, the Florida Supreme Court has analogized the
requisite level of negligence necessary for the assessment of
punitive damages under section 768.72 to that necessary for a
conviction for criminal manslaughter. Valladares v. Bank of Am.
Corp., 197 So. 3d 1, 11 (Fla. 2016) (citing Carraway v. Revell, 116
So. 2d 16, 18–19 (Fla. 1959)). The negligence

must be of a “gross and flagrant character, evincing
reckless disregard of human life, or of the safety of
persons exposed to its dangerous effects, or there is that
entire want of care which would raise the presumption of
a conscious indifference to consequences, or which shows
wantonness or recklessness, or a grossly careless
disregard of the safety and welfare of the public, or that
reckless indifference to the rights of others which is
equivalent to an intentional violation of them.”

Id. (quoting Owens-Corning Fiberglas Corp. v. Ballard, 749 So.
2d 483, 486 (Fla. 1999)).

THIS CASE

Appellee’s argument for an assessment of punitive damages
against Hospital Specialists is essentially that, by allowing
Lancaster to provide after-hours care for Deen, Hospital
Specialists violated its written protocol, of which Lancaster and
Dr. Khan were each named parties. Appellee reasons that, due to
the complexity of Deen’s medical condition or problems, the
medical care and treatment that Deen required was outside the
scope of Lancaster’s duties and responsibilities as an ARNP.

Hospital Specialists’ protocol at issue established a practice
model under which Lancaster, as a nurse practitioner, was
permitted to provide inpatient health care services under the
general supervision of Dr. Khan. Among other things, Lancaster
was allowed to: (1) manage the health care of those patients for
which he had been educated; (2) see patients independent of, but
under the general supervision of, the physician; (3) perform

7
physical examinations and assessments; (4) treat common health
problems considered under the practices of Internal Medicine; and
(5) prescribe, initiate, monitor, alter, or order any prescription
medication within the scope of his training and knowledge base,
including controlled substances as outlined in Florida Statutes.

The protocol also established Dr. Khan’s duties and
responsibilities. Specifically, Dr. Khan was to (1) provide general
supervision over routine health care and management of common
health problems; (2) provide consultation and/or accept referrals
for complex health problems; and (3) be available by telephone or
other communication device when he was not physically available
on St. Vincent’s premises. Dr. Khan was also to be consulted for
any condition that was outside the scope of Lancaster’s practice.

Appellee also asserted that Lancaster’s care and treatment
of Deen exceeded that permissible under section 464.012, Florida
Statutes (2017). This statute set forth those functions that an
ARNP may perform within the framework of an established
protocol. They include the prescription or ordering of medication;
initiating appropriate therapies; managing selected medical
problems; monitoring and managing patients with stable chronic
diseases; and initiating, monitoring, or altering therapies for
certain uncomplicated acute illnesses. See § 464.012(3)–(4). And
while Lancaster, as an ARNP, may perform these functions, a
physician “shall maintain supervision for directing the specific
course of medical treatment.” See Siegel v. Husak, 943 So. 2d 209,
213 (Fla. 3d DCA 2006) (quoting § 464.02(3), Fla. Stat. (2003)).

As previously indicated, our standard of review in this case
is de novo. More particularly, as no live testimony was weighed or
considered by the trial court, we are in the same position as the
trial court when analyzing whether the proffered evidence
provides a reasonable basis for the recovery of punitive damages.

Our review of the record evidence and proffered evidence
shows that well before the June 8 after-hours call from the hospital
nursing staff to Hospital Specialists about Deen’s condition, Dr.
Khan had seen and treated Deen in the hospital and had
established a post-surgery treatment plan for the hospital’s
nursing staff to follow. The records do show that Dr. Khan, on

8
behalf of Hospital Specialists, assigned Lancaster to take after-
hours call for the evening of June 8 for his patients, not just Deen.
The records also indicate that the symptom of hypotension related
to Lancaster by the hospital nurses on the evening of June 8 falls
within an ARNP’s permissible scope of care, and that the
administration of an intravenous saline bolus, as directed by
Lancaster, can be an appropriate response to this symptom.

Appellee’s argument for asserting a punitive damages claim
is not, however, predicated on whether Lancaster, in general, may
properly administer care for hypotension. Instead, Appellee
asserts that, due to the known complexity of Deen’s medical
problems at the time, Lancaster’s care in ordering the intravenous
saline bolus, without first consulting with Dr. Khan, violated both
Hospital Specialists’ aforementioned protocol and section 464.012,
Florida Statutes. Assuming that Lancaster’s action violated the
protocol and section 464.012, the dispositive question here, though,
is whether assigning Lancaster to take after-hours call for Dr.
Khan’s patients, including Deen, was so outrageous in character
or reprehensible to expose Hospital Specialists to a claim for
punitive damages under section 768.72. Our answer is “No.”

A finding of intentional misconduct, under section
768.72(2)(a)’s definition, would require that Dr. Khan had actual
knowledge that, under the aforementioned circumstances, there
was a high probability that additional injury or damage would
result to Deen by permitting Lancaster to take the after-hours call.
There is insufficient record evidence or proffered evidence that Dr.
Khan either knew or otherwise intended for Lancaster to
independently order medical treatment for Deen outside the scope
of Lancaster’s practice without consulting him.

Furthermore, even if there were sufficient evidence to
demonstrate that Dr. Khan knew or intended that Lancaster
would treat Deen outside the scope of Lancaster’s practice without
first consulting him, the evidence would have to further
demonstrate that Dr. Khan knew that there was a high probability
that additional injury or damage would result to Deen. It is not
enough that such a result could or might occur.

9
 Additionally, there is insufficient evidence that Dr. Khan
condoned or ratified Lancaster’s independent treatment with
actual knowledge of a high probability that doing so would result
in additional harm or death to Deen. There is insufficient record
or proffered evidence demonstrating that Dr. Khan was either not
available or refused to consult with Lancaster by phone regarding
Deen’s physical condition. We therefore conclude that Appellee
failed to demonstrate a reasonable basis for an award of punitive
damages based on “intentional misconduct.”

The proffered evidence is similarly unavailing to reasonably
show the existence of “gross negligence.” On the evening of June
8, Dr. Khan’s hospitalized patients were under the care of a team
of nurses, with Lancaster being available for any after-hours calls;
and they were all operating under treatment plans ordered by Dr.
Khan. Again, there is no evidence to show that Dr. Khan was
unavailable for consultation by phone if an issue arose regarding
Deen. The facts of the case do not rise to the level of Hospital
Specialists, through Dr. Khan or Lancaster, evincing a reckless or
conscious disregard of or indifference to human life to meet the
definition of gross negligence under section 768.72(2)(b). See
Valladares, 197 So. 3d at 11.

Finally, we therefore also conclude that the actions of Dr.
Khan, as president of Hospital Specialists, in allowing Lancaster
to first take the after-hours call regarding Deen, did not rise to a
willful and malicious level whereby Hospital Specialists could be
found directly liable for punitive damages. See Schropp v. Crown
Eurocars, Inc., 654 So. 2d 1158, 1159–60 (Fla. 1995). Accordingly,
we reverse the order under review and direct the trial court to
enter an order denying Appellee’s motion to amend.

REVERSED and REMANDED for the entry of an order
denying the motion to amend the complaint.

MAKAR and KILBANE, JJ., concur.

10
 _____________________________

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

11