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
WINNIEFRED RAMSAY,
Appellant,
v. Case No. 5D22-1161
LT Case No. 2021-CA-001382-A
SOUTH LAKE HOSPITAL, KERRY L.
NEALL, M.D., AND HOLLY B. SAUNDERS,
M.D.,
Appellees.
________________________________/
Opinion filed February 17, 2023
Appeal from the Circuit Court
for Lake County,
Dan R. Mosley, Judge.
Winniefred Ramsay, Miami, pro se.
Andrea Lozano Diederich, of
Marshall, Dennehey, Warner,
Coleman & Goggin, Orlando, for
Appellees, South Lake Hospital, Inc.
and Kerry L. Neall, M.D.
Christian P. Trowbridge, of Estes,
Ingram, Foels & Gibbs, P.A.,
Maitland, for Appellee, Holly B.
Saunders, M.D.
LAMBERT, C.J.
The pro se appellant, Winniefred Ramsay, timely appeals the final
order dismissing with prejudice her amended complaint for damages against
the appellees, South Lake Hospital, Inc. (“South Lake”) and Kerry L. Neall,
M.D. (“Dr. Neall”), as well as a separate final order dismissing the same
amended complaint with prejudice against Holly B. Saunders, M.D. (“Dr.
Saunders”). The court dismissed the amended complaint because the
applicable statute of limitations had expired. For the following reasons, we
affirm both final orders.
BACKGROUND—
On March 27, 2016, Ramsay was involved in a motor vehicle accident
that resulted in her suffering “excruciating back pain and a visible bruise on
the left side of [her] chest.” Ramsay was transported from the accident site
to South Lake’s emergency room where, as she would later allege, after
approximately two hours, she was discharged after being told that her pain
was “arthritis.”
Ramsay sought medical treatment three days later at a different
medical facility, where, according to her, “after appropriate screening,” it was
“discovered” that she had sustained numerous fractures in her back.
2
LITIGATION—
On February 28, 2020, Ramsay filed a pro se complaint for
“negligence” against South Lake. South Lake moved to dismiss the
complaint; and, following a hearing on the motion, Ramsay was given leave
by the court to file an amended complaint.
On December 20, 2021, Ramsay filed the operative amended
complaint. In her amended complaint, Ramsay added Dr. Neall, the
“emergency medicine physician,” and Dr. Saunders, the “diagnostic
radiologist,” as new parties to the lawsuit, asserting that both were
employees of South Lake on March 27, 2016, “when the negligence
occurred.” Ramsay alleged that the “defendants failed to treat [Ramsay’s]
emergency medical condition because the examination conducted on [her]
fell below standards of ‘reasonable care,’” as evidenced by the fact that,
three days later, on March 30, 2016, after receiving “appropriate screening”
at a different facility, she was diagnosed with having seven fractures in her
back. Ramsay concluded her amended complaint by alleging that had the
defendants “conducted the appropriate screening and stabilized [her] on
March 27, 2016,” she would not have suffered the damages that she did.
Ramsay alleged that the foregoing behaviors of South Lake, Dr. Neall,
and Dr. Saunders violated section 395.1041, Florida Statutes (2015). This
3
statute, titled “Access to emergency services and care,” specifically declared
as legislative intent the vital importance for emergency services and care to
be provided by hospitals and physicians to every person in need of such
services and found that such persons have been denied emergency services
and care by hospitals. § 395.1041(1), Fla. Stat. (2015). 1 The statute further
provided that any person who suffers personal harm as a result of a violation
of this statute may recover damages in a civil action against the responsible
hospital administrative or medical staff or personnel. § 395.1041(5)(b), Fla.
Stat. (2015). However, a different subsection of the statute contains, in
pertinent part, the following caveat:
Neither the hospital nor its employees, nor any
physician . . . shall be liable in any action arising out
of a refusal to render emergency services or care if
the refusal is made after screening, examining, and
evaluating the patient, and is based on the
determination, exercising reasonable care, that the
person is not suffering from an emergency medical
condition . . . .
§ 395.1041(3)(g), Fla. Stat. (2015).
South Lake and Dr. Neall jointly moved to dismiss the amended
complaint. They argued that Ramsay’s cause of action was actually one for
1
Section 395.1041 has been referred to as Florida’s “patient dumping”
or “anti-dumping” statute. See St. Joseph’s Hosp., Inc. v. Cintron, 998 So.
2d 1192, 1193 (Fla. 2d DCA 2009).
4
medical malpractice or medical negligence and was time-barred under the
statute of limitations codified at section 95.11(4)(b), Florida Statutes (2015),
because it had not been filed within two years of the March 30, 2016 accrual
of the claim. This statute provides, in pertinent part:
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; however, in no event shall the action be
commenced later than 4 years from the date of the
incident or occurrence out of which the cause of
action accrued . . . .
§ 95.11(4)(b), Fla. Stat. (2015).
South Lake and Dr. Neall alternatively argued in their motion that
Ramsay’s action was not timely commenced within the four-year statute of
repose described within this subsection.
Dr. Saunders separately moved to dismiss Ramsay’s amended
complaint. In addition to the above arguments, Dr. Saunders asserted that,
even if Ramsay’s cause of action could be construed as having been brought
under section 395.1041, it was still barred by the separate four-year statute
of limitations for bringing an action founded on a statutory liability. See §
95.11(3)(f), Fla. Stat. (2015). Dr. Saunders argued that she was not sued by
Ramsay until December 20, 2021, almost five years and nine months after
5
the emergency room visit; thus, on the face of the amended complaint, the
claim against her was time-barred.
Ramsay responded to each motion. She maintained that her cause of
action was brought under section 395.1041 and was not a claim for medical
negligence; therefore, the four-year statute of limitations was applicable. As
to South Lake, Ramsay reminded that her initial complaint was filed on
February 28, 2020, well within four years of March 27, 2016, when she
suffered damages at South Lake’s emergency room.
Next, Ramsay asserted that her amended complaint, though
admittedly filed against Drs. Neall and Saunders on December 20, 2021, was
nevertheless timely under Florida Rule of Civil Procedure 1.190(c) because
it related back to the February 28, 2020 filing of her original complaint. This
rule provides that when a claim asserted in an “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.” Fla. R. Civ. P. 1.190(c).
Following a brief, properly noticed hearing, the trial court entered the
final order under review dismissing Ramsay’s action with prejudice against
Dr. Saunders “based upon expiration of the statute of limitations.” In a
separate final order also on appeal here, the trial court dismissed the
6
amended complaint with prejudice against South Lake and Dr. Neall. The
court concluded that Ramsay’s amended complaint asserted “factual
allegations of medical negligence, not section 395.1041, Florida Statutes,”
and that since the alleged acts of medical negligence occurred on March 27,
2016, the statute of limitations ha[d] expired on [Ramsay’s] claims.”
STANDARD OF REVIEW—
The standard of review of an order granting a motion to dismiss with
prejudice is de novo. Burgess v. N. Broward Hosp. Dist., 126 So. 3d 430,
433 (Fla. 4th DCA 2013). Pertinent here, a motion to dismiss based on the
expiration of a statute of limitations should be granted only in those
circumstances where the facts constituting the defense affirmatively appear
on the face of the complaint and its attachments 2 so as to conclusively
establish that the action is time-barred. Banks v. Alachua Cnty. Sch. Bd.,
275 So. 3d 214, 215 (Fla. 1st DCA 2019).
DISMISSAL OF THE AMENDED COMPLAINT AGAINST DR.
SAUNDERS—
Dr. Saunders argued at the motion to dismiss hearing that, assuming
Ramsay’s amended complaint was brought under section 395.1041, her
2
There were no attachments to Ramsay’s complaint or amended
complaint.
7
cause of action accrued on March 27, 2016, and suit was not filed against
Dr. Saunders until December 20, 2021; thus, it was time-barred under
section 95.11(3)(g)’s four-year statute of limitations for actions based on
statutory liability. The trial court agreed, orally granted the motion, and
thereafter entered the written final order now under review.
We hold that the trial court correctly dismissed Ramsay’s action
against Dr. Saunders. Accepting Ramsay’s premise that her cause of action
was one solely for a violation of section 395.1041, on the face of the
amended complaint, the statute of limitations to bring such an action had
expired. Dr. Saunders is a new and totally separate party who was added
into the case some five years and nine months after the cause of action
accrued. Under these circumstances, the amended complaint did not “relate
back” under Florida Rule of Civil Procedure 1.190(c) to the filing of Ramsay’s
original complaint in February 2020. See Lindsey v. H.H. Raulerson Jr.
Mem’l Hosp., 505 So. 2d 577, 578 (Fla. 4th DCA 1987) (holding that an
amended complaint that did not merely correct a misnomer but instead
added another physician as a totally separate party and to whom the statute
of limitations had already run did not relate back to the date of the filing of
the initial complaint); Johnson v. Taylor Rental Ctr., Inc., 458 So. 2d 845, 846
(Fla. 2d DCA 1984) (holding that the relation back doctrine permits the
8
correction of misnomers after the statute of limitations has expired, but not
the addition of new parties).
DISMISSAL OF THE AMENDED COMPLAINT AGAINST SOUTH LAKE
AND DR. NEALL—
As previously indicated, the trial court’s order of dismissal with
prejudice of Ramsay’s amended complaint against South Lake and Dr. Neall
determined that the amended complaint asserted a claim for medical
negligence, not a violation of section 395.1041, Florida Statutes. The court
held that because the alleged medical negligence occurred on March 27,
2016, 3 the statute of limitations expired on Ramsay’s claims against South
Lake and Dr. Neall. 4
“The determination of whether a complaint alleges a claim for medical
malpractice is a legal one and is, therefore, reviewed de novo.” Nat’l Deaf
Acad., LLC v. Townes, 242 So. 3d 303, 308 (Fla. 2018) (citing Dockswell v.
3
The cause of action arguably accrued on March 30, 2016, when
Ramsay was treated at a different facility and received the diagnosis of seven
fractures in her back. The accrual of the claim on March 30 does not affect
our analysis or the outcome of this appeal.
4
In his motion to dismiss, Dr. Neall had also raised the same argument
as Dr. Saunders that, assuming Ramsay’s claim was brought under section
395.1041, the four-year statute of limitations had expired when he was also
first added as party in December 2021. However, Dr. Neall did not make
that argument at the hearing, and it was not the basis of the trial court’s
dismissal of the action against him.
9
Bethesda Mem’l Hosp., Inc., 210 So. 3d 1201, 1206 (Fla. 2017); Pierrot v.
Osceola Mental Health, Inc., 106 So. 3d 491, 492 (Fla. 5th DCA 2013)).
“Medical negligence” or “medical malpractice” is defined as “a claim, arising
out of the rendering of, or the failure to render, medical care or services.” §
766.106(1)(a), Fla. Stat. (2015); accord § 95.11(4)(b), Fla. Stat. (2015).
Thus, “for an action to sound in medical malpractice, the act from which the
claim arises must be directly related to medical care or services, which
require the use of professional judgment or skill.” Rockledge HMA, LLC v.
Lawley, 310 So. 3d 112, 115 (Fla. 5th DCA 2020) (citing Townes, 242 So.
3d at 311–12).
The allegations of the complaint, and not the legal conclusions of a
plaintiff as to the type of cause of action asserted, controls the analysis. See
Dr. Navarro’s Vein Ctr. of Palm Beach, Inc. v. Miller, 22 So. 3d 776, 778 (Fla.
4th DCA 2009) (recognizing that in determining whether a complaint is for
medical malpractice or medical negligence, the trial court should “parse the
factual allegations from the legal conclusions alleged by the plaintiff”). Thus,
in determining whether Ramsay’s cause of action here fell within the
statutory definition of medical malpractice or medical negligence, the trial
court was tasked with analyzing whether Ramsay would be required to show
that the alleged negligence “‘represented a breach of the prevailing
10
professional standard of care,’ as testified to by a qualified medical expert,
in order to prove [her] claim.” Rockledge HMA, 310 So. 3d at 115 (quoting
Townes, 242 So. 3d at 311–12).
We agree with the trial court that the amended complaint alleged a
claim for medical negligence. Ramsay specifically alleged that the
examination of her at South Lake’s emergency room “fell below standards of
‘reasonable care,’” and that three days after being discharged from South
Lake, she received “appropriate screening” from a second “medical facility”
where she was diagnosed with having sustained seven fractures in her back.
Thus, by her own pleading, Ramsay would have been obligated to prove at
trial, through a qualified medical expert, that the standard of care that she
received at South Lake’s emergency room and from Dr. Neall in not
diagnosing the alleged fractures in her back breached the prevailing
standard of care. See Indian River Mem’l Hosp. v. Browne, 44 So. 3d 237,
238–39 (Fla. 4th DCA 2010) (holding that the manner by which a plaintiff’s
emergency room care was managed makes the claim one of medical
negligence, despite the plaintiff’s contrary assertions).
Ramsay’s initial complaint, filed just under four years after she
discovered the alleged negligence, was well outside the two-year statute of
limitations of section 95.11(4)(b) to bring a medical negligence claim.
11
However, as previously noted, section 95.11(4)(b) also contains what is
referred to as a four-year statute of repose for bringing such an action. 5
Thus, assuming the applicability of the statute of repose, Ramsay’s initial
complaint against South Lake was filed within four years. However, a
medical negligence cause of action brought under chapter 766, Florida
Statutes, requires that a plaintiff must first comply with a number of presuit
requirements before bringing the claim. See Univ. of Mia. v. Wilson, 948 So.
2d 774, 776 (Fla. 3d DCA 2006). The failure to do so warrants dismissal of
the action. Yocom v. Wuesthoff Health Sys., Inc., 880 So. 2d 787, 790 (Fla.
5th DCA 2004).
It is unnecessary for this court to describe these various chapter 766
presuit requirements because Ramsay has not argued that she complied
with them, nor could she. In her defense, Ramsay did not believe that she
needed to meet these requirements, as, in her view, she was not bringing a
claim in medical negligence. As we have explained in this opinion, Ramsay
was mistaken.
Lastly, we hold that the trial court’s dismissal of Ramsay’s amended
5
The statute of repose contained in section 95.11(4)(b) reflects the
“legislative determination that there must be an outer limit beyond which
medical malpractice suits may not be instituted.” Kush v. Lloyd, 616 So. 2d
415, 421 (Fla. 1992).
12
complaint with prejudice, as opposed to a dismissal without prejudice, was
proper. Simply stated, any efforts by Ramsay now to comply with chapter
766’s presuit screening requirements would be far too late under section
95.11(4)(b)’s statute of limitations or statute of repose. See John Doe No.
23 v. Archdiocese of Mia., Inc., 965 So. 2d 1186, 1188 (Fla. 4th DCA 2007)
(concluding that the trial court properly dismissed the amended complaint
based on the statute of limitations and since any further attempt to amend
the complaint would be futile, the dismissal was correctly entered with
prejudice); Childers v. Cape Canaveral Hosp., Inc., 898 So. 2d 973, 974 (Fla.
5th DCA 2005) (affirming the dismissal of a medical malpractice action with
prejudice when the complaint was clearly barred by the statute of repose);
Royle v. Fla. Hosp.-E. Orlando, 679 So. 2d 1209, 1212 (Fla. 5th DCA 1996)
(affirming dismissal of medical malpractice case with prejudice for failing to
comply with presuit requirements prior to expiration of statute of limitations);
cf. Popps v. Foltz, 806 So. 2d 583, 584–85 (Fla. 4th DCA 2002) (holding that
the failure to comply with the chapter 766 presuit requirements does not
warrant a dismissal with prejudice if the statute of limitations has not yet run).
Accordingly, the final orders of dismissal with prejudice are affirmed. 6
6
We have not overlooked Ramsay’s separate argument that the final
orders should be reversed because she claims that she was unable to
participate at the motion to dismiss hearing held by Zoom due to
13
AFFIRMED.
WALLIS and JAY, JJ., concur.
“technological problems.” See In the Int. of K.E., 335 So. 3d 226, 228 (Fla.
2d DCA 2022) (“When a party is disconnected from a remote proceeding due
to a technical malfunction or some other reason beyond their control and
judgment is entered against him or her, the proper course of action is to file
a motion to vacate the judgment alleging excusable neglect.”). Ramsay did
not file a motion for rehearing or reconsideration raising this argument prior
to filing her notices of appeal.
Ramsay did file responses below to the respective motions to dismiss
prior to the hearing, which the trial court noted in its dismissal orders that it
had reviewed. Lastly, Ramsay has fully briefed her substantive arguments
for reversal of the final orders; and, as reflected in this opinion, we have
found them to be without merit. However, consistent with K.E., our
affirmance here is without prejudice to Ramsay pursuing a motion to vacate
and the trial court conducting a limited evidentiary inquiry addressing the
motion. See id.
14