Arbitration Awards and Judicial Review of Contracts for Illegality

By Jacek Stramski

In Visiting Nurse Association of Florida, Inc. v. Jupiter Medical Center, Inc. (SC11-2468), the Florida Supreme Court held that courts cannot review, or refuse to enforce, an arbitration award based on a claim of contract illegality.

A brief procedural and background history is provided in a previous post located here.

The Supreme Court began its analysis by noting that because the transaction subject to the contract involved interstate commerce, as it related to Medicare patients, the challenged arbitral award and any review of it would be governed by the Federal Arbitration Act (FAA). The FAA in turn preempts any conflicting state law on arbitration relating to matters in interstate commerce.

Relying on Hall Street Associates, LLC v. Mattel, Inc., 552 U.S. 576 (2008), the Court noted that the statutory grounds for vacating or modifying an arbitrator’s award under the FAA provided in 9 U.S.C. ss. 10 and 11, respectively, are the exclusive grounds for judicial review of an arbitration award. The Court concluded that because illegality is not a basis for vacating or modifying an arbitrator’s award under either of those provisions, a charge of illegality would not permit a court to review an arbitrator’s award that otherwise did not fall under the other listed bases for judicial review (such as corruption, fraud, partiality, exceeding of arbitral powers).

The Court rejected Jupiter Medical Center’s claim that the arbitrators exceeded their powers by construing the contract in a manner resulting in illegality because the arbitration panel construed the contract in dispute, as provided for in the arbitration clause. In other words, because it was within the powers of the arbitration panel to interpret the contract, the arbitration panel could not exceed its powers by construing the contract even if that interpretation might read illegal provisions into the contract. The Court upheld the arbitration award under the Florida Arbitration Code on essentially the same grounds, namely that illegality is not one of the statutory grounds in s. 682.13, F.S., available for judicial review of an arbitration award, and because the arbitration panel was acting within its powers when it interpreted the contract at issue.

The somewhat counterintuitive result of this unanimous decision is that an arbitration award issued under an illegal contract (or a contract interpreted to contain illegal provisions) may be enforceable by the courts even if the contract would have been otherwise void had it not contained an arbitration clause. Contract killers and cartel kingpins, take note.

Court Rules on Local Red-light Camera Ordinances

By Jacek Stramski

The Supreme Court’s joint opinion issued Thursday in Masone v City of Aventura (SC12-644) and City of Orlando v. Udowychenko (SC12-1471) invalidated the municipal red light traffic camera enforcement systems set up by ordinance in those cities. The ordinances that established the enforcement systems, enacted before the effective date of Ch. 2010-80, Laws of Fla. (which expressly permits use of traffic camera equipment for local enforcement of traffic light laws, provided that specific conditions are met), were challenged on the basis that they were preempted by state law.

In a 5-2 decision, the Supreme Court agreed that these local ordinances were preempted. The Court recognized that municipalities have broad home rule powers and that section 316.008(1)(w), Fla. Stat. (2008) granted local governments the authority for “[r]egulating, restricting, or monitoring traffic by security devices.” However, that provision did not authorize local governments to implement systems for enforcing red light infractions separate from the Uniform Traffic Control Law in chapter 316, Fla. Stat., as state law provided that “[t]he provisions of [chapter 316] shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized.” Section 316.007, Fla. Stat. (2008). Additionally, section 318.121, Fla. Stat. (2008) provided that “[n]otwithstanding any general or special law, or municipal or county ordinance, additional fees, fines, surcharges, or costs other than the court costs and surcharges assessed under s. 318.18(11), (13), and (18) may not be added to the civil traffic penalties assessed in this chapter.”

The Court therefore held that because the comprehensive traffic safety statutes in chapters 316 and 318 already provided for the enforcement of red light laws and because no statute expressly authorized local governments to establish separate enforcement procedures with respect to red lights, both local enforcement systems were preempted by state law.

Attorney’s Fees in Extraordinary Writ Proceedings

By Jacek Stramski

Last week the Supreme Court clarified the procedure available to a party who wishes to seek attorney’s fees in an original writs proceeding at the appellate level.

The decision, issued in Advanced Chiropractic and Rehabilitation Center Corp. v. United Automobile Insurance Co., (SC13-153), followed a finding by the 4th District Court of Appeal (DCA) that a motion for attorney’s fees filed by United Automobile Insurance Co. (UAIC) after the DCA granted a petition for certiorari was untimely because the request for attorney’s fees was made by motion after the petition was granted, and not in a pleading, which the 4th DCA concluded was only the petition, response, and reply in original writ proceedings under Rule 9.100, Fla. R. App. P. Advanced Chiropractic and Rehabilitation Center Corp. v. United Automobile Insurance Co., 103 So.3d 869, 871 (Fla. 4th DCA 2012), relying on Stockman v. Downs, 573 So.2d 835, 837 (Fla.1991), where the Supreme Court held that claims for attorney’s fees must satisfy the “fundamental concern” of notice, and that failure to plead entitlement to attorney’s fees would constitute a waiver of the claim.

The Court began its analysis by looking to rule 9.400(b), which provides a timeframe for filing a motion for attorney’s fees in appellate proceedings. The Court agreed with the 4th DCA that rule 9.400(b) is inapplicable to original writs proceedings, as the rule specifically provides that a “motion for attorneys’ fees may be served not later than the time for service of the reply brief…” whereas in original writs proceedings under rule 9.100, no reply brief is contemplated.

The Court, however, disagreed the 4th DCA’s reliance on Stockman to conclude that a claim for attorney’s fees in an original writs proceeding must be made in the “pleadings.” The Court pointed out that the holding in Stockman was limited to proceedings under the Florida Rules of Civil Procedure, and did not apply to matters under the rules of appellate procedure. The Court also noted that the “fundamental concern” of notice that was at issue in Stockman was not at issue in this case, as UAIC had sought attorney’s fees below in both county and circuit court.

The Court ultimately looked to rule 9.100 itself, and concluded that since neither it nor any precedent provides a procedure for requesting attorney’s fees in an original extraordinary writ proceeding, such requests would be controlled generally by rule 9.300, which governs appellate motions. That rule provides that “[u]nless otherwise prescribed by these rules, an application for an order or other relief available under these rules shall be made by filing a motion therefor.” Rule 9.300, Fla. R. App. P. Because no time limit for motions for attorney’s fees is specified in that rule, the Court ruled that any timely motion for attorney fees filed in an original writs proceeding could be considered. The Court also concluded that the motion filed by Advanced Chiropractic and Rehabilitation Center was timely under that standard, as it was filed six days after the DCA granted the petition for a writ of certiorari.

Court Clarifies Standard of Proof in Civil Proceedings that Involve Monetary Penalties

By Jacek Stramski

Today the Florida Supreme Court unanimously clarified that where the Legislature authorizes a state agency to impose a civil penalty in a court of competent jurisdiction, the agency’s burden of proof is a preponderance of the evidence unless a different evidentiary standard is provided by law. South Florida Water Management District v. RLI Live Oak, LLC (SC12-2336).

The case began as a dispute between the South Florida Water Management District (District) and RLI Live Oak, LLC (RLI) over whether property owned by RLI contained wetlands and therefore came under jurisdiction of the District. Following a bench trial, the trial court found for the District and awarded it civil penalties. The 5th District Court of Appeal (DCA) reversed the trial court, holding that the trial court improperly relied on a preponderance of the evidence standard to support its findings. RLI Live Oak, LLC v. South Florida Water Management District, 99 So. 3d 560 (Fla. 5th DCA 2012). The 5th DCA, relying Dep’t of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996), where the Supreme Court specified that an agency is required to meet a clear and convincing burden of proof to impose an administrative penalty, held that the clear and convincing standard applied to civil penalties as well.

The Supreme Court reversed the 5th DCA, and clarified that the holding in Osborne was limited to administrative penalties. The Court held that in civil proceedings, where the statutory authorization to seek civil penalties does not specify an applicable burden of proof, an agency must meet its burden of proof by a preponderance of the evidence and not by clear and convincing evidence.

Florida Supreme Court Holds that Pregnancy Discrimination is Prohibited Under State Law

The Florida Supreme Court held today in Delva v. Continental Group, Inc. (SC12-2315), that the Florida Civil Rights Act (FCRA), sections 760.01-760.11, Fla. Stat., which in part prohibits discrimination in employment on the basis of sex, encompasses discrimination on the basis of pregnancy.

A previous post provides a background to the case and summarizes oral arguments.

The uncertainty as to whether pregnancy discrimination was covered under FCRA arose from the fact that FCRA and its predecessor were modeled in part on Title VII of the Federal Civil Rights Act of 1964, which was found to not prohibit discrimination on the basis of pregnancy as a per se form of sex discrimination by the U.S. Supreme Court in General Electric Co. v. Gilbert, 429 U.S. 125, 145 (1976). Title VII was subsequently amended by Congress to specifically include pregnancy discrimination as a form of sex discrimination, while FCRA’s predecessor statute was not.

Florida’s Third and Fourth District Courts of Appeal were divided on how to interpret this revision to Title VII and its impact on FCRA. The Fourth District Court of Appeal in Carsillo v. City of Lake Worth found that since the Congressional amendment to Title VII was presented as clarifying the original intent behind the law, and since FCRA is patterned after Title VII, FCRA encompasses discrimination on the basis of pregnancy as well. 995 So.2d 1118 (Fla. 4th DCA 2008). By contrast, the Third District Court of Appeal in Delva v. Continental Group, Inc., held below in this case that FCRA does not cover pregnancy discrimination because it was not modified to include it explicitly, as was Title VII. 96 So.3d 956 (Fla. 3d DCA 2012).

In considering the scope of the prohibition on sex discrimination under FCRA, Justice Pariente, writing for the majority, found that “the statutory phrase making it an “unlawful employment practice for an employer . . . to discriminate . . . because of . . . sex,” as used in the FCRA, includes discrimination based on pregnancy, which is a natural condition and primary characteristic unique to the female sex.” (Op. at 2).

The Court pointed out that the expressed legislative intent is for FCRA to be interpreted liberally. Section 760.01(3), Fla. Stat. The Court adopted the reasoning of the Massachusetts Supreme Court in Mass. Elec. Co. v. Mass. Comm’n Against Discrimination, which when considering a similar law held that because the ability to become pregnant is a primary characteristic of the female sex, and is unique to it, any discrimination on the basis of pregnancy is discrimination that uses sex as the basis of discrimination. 375 N.E.2d 1192, 1198 (Mass. 1978).

The Court asserted that discrimination based on pregnancy is in fact discrimination based on sex because it is discrimination as to a natural condition unique to only one sex and that arises “because of [an] individual’s . . . sex.”

The lone dissent by Chief Justice Polston posited that the term “pregnancy” should not be read into FCRA as it was not explicitly included in the statute.

Vicarious Liability and the Beneficial Ownership Exception to the Dangerous Instrumentality Doctrine

By Jacek Stramski

It’s 6:00PM. Do you know where the cars titled in your name are?

On April 10, the Florida Supreme Court issued an opinion addressing the beneficial ownership exception to the dangerous instrumentality doctrine, which provides an exception to the doctrine that a vehicle owner who permits another to use the vehicle may be liable for any harm caused by the negligent use of the vehicle. The opinion, issued in Christensen v. Bowen (SC12-2078), is available here. A discussion about oral arguments held in the case is available here.

In the opinion, the Court unanimously held that Robert Christensen, who purchased a vehicle for his wife while the two were involved in divorce proceedings, and who was listed on the title as a co-owner of the vehicle, could be held vicariously liable in a wrongful death action stemming from a fatal accident in which his ex-wife negligently struck and killed another while driving the vehicle. The Court held that vicarious liability under the dangerous instrumentality doctrine could apply even though the car was intended by Christensen to be used by his ex-wife, and even though Christensen had neither keys to the car nor access to the garage where the car was kept.

The Court began its analysis by noting that “[t]he underlying rationale of the [dangerous instrumentality] doctrine is that if a vehicle owner, who has control over the use of the vehicle, exercises his or her control by granting custody of the vehicle to another, the owner commits himself or herself to the judgment of that driver and accepts the potential liability for his or her torts.” (Op. at 5).

The Court recognized that there is a beneficial ownership exception to the dangerous instrumentality doctrine. The exception precludes vicarious liability when the titleholder lacks beneficial ownership of the vehicle. However, the Court held that the exception only applies in cases where equitable and legal rights of control have passed to another and the titleholder retains bare legal paper title. Such a situation might arise when a car is sold but title retained as security for the full payment of the purchase price, or where a common law purchase of a vehicle is effected but the title has not been updated to reflect the transfer.

In other words, “beneficial ownership is unrelated to physical access to a vehicle, past use of a vehicle, or intent to use or not use a vehicle. Rather, beneficial ownership arises from legal rights that allow an individual to exert some dominion and control over the use of the vehicle.” (Op. at 12). The Court added that for purposes of motor vehicle litigation, title determines ownership, and ownership reflected in a title can only be disproven by objective evidence of a “conditional sale or incomplete faulty transfer.” (Op. at 14).

Because Christensen did not present any evidence that he transferred his co-ownership interest in the vehicle, he retained the legal right (if not practical ability) to exert control over the vehicle. He therefore could not avail himself of the beneficial ownership exception to the dangerous instrumentality doctrine.

Florida Supreme Court Considers Procedural Due Process of State’s Involuntary Commitment System

By Jacek Stramski

National attention is focusing on the lack of adequate public mental health services, which has turned the criminal justice system into the repository for individuals with mental health problems. The New York Times covered the issue recently, following a study released by the non-profit Treatment Advocacy Center. At the same time, Florida’s system of involuntary civil commitment is being scrutinized for a lack of procedural safeguards that would ensure the release of a person involuntarily committed who no longer meets the criteria for such commitment. And this when, according to the state of Florida, 20,000 people are apparently on the wait list for Home and Community Based Medicaid Services, including mental health residential services. (Ans. Br. at 18 and 23).

The workings of Florida’s involuntary commitment statutes were discussed in oral arguments held today before the Florida Supreme Court in J.R. v. Palmer (SC13-1549). Briefs in the case are available here.

The appellant in the case, J.R., was charged with a felony in 2000 and was found incompetent to stand trial in 2001. In 2004, after no evidence was presented that J.R. would ever be competent to stand trial, criminal charges against J.R. were dismissed and he was involuntarily committed to a residential facility under the care and custody of the state’s Agency for Persons with Disabilities (APD). J.R. eventually challenged the statutes governing his involuntary commitment in federal district court, where he lost. On appeal, the 11th Circuit Court of Appeals certified questions of statutory interpretation to the Florida Supreme Court to determine whether Florida’s involuntary commitment statutes provide the required procedural due process protections.

As background, a person may be involuntarily committed if the person has an intellectual disability and (1) the person lacks ability to consent and lacks basic self-care abilities such that no close supervision would result in a real and present threat to the person’s well-being; or (2) the person is likely to injure others if allowed to remain at liberty. Section 393.11, Fla. Stat. A person who has been involuntarily committed may only be released upon order of the committing court. Because involuntary commitment restricts an individual’s liberty, involuntary commitment requires rigorous due process protections, which the 11th Circuit in this case held to include a periodic review requirement to determine if a person continues to meet the criteria required for involuntary commitment. See Parham v. J.R., 442 U.S. 584 (1979) and Williams v. Wallis, 734 F.2d 1434 (11th Cir. 1984). The 11th Circuit’s opinion is available here.

J.R. argues that chapter 393, Fla. Stat., creates a facially unconstitutional scheme of involuntary commitment because it does not require APD to engage in a periodic review to determine if the individual remains a threat to himself or others after being committed, and because the statutes do not require APD to petition a court to order release of an involuntarily committed individual if the individual no longer meets involuntary commitment criteria. Therefore, J.R. contends, the statutes violate procedural due process requirements on their face because they do not explicitly require APD to take any action to secure a person’s release after that person would no longer be subject to involuntary commitment in the first instance.

The state counters that section 393.0651, Fla.Stat., which directs APD to conduct support plan reviews to determine whether a client is placed in the least restrictive facility, and chapter 393, Fla. Stat. generally, can be interpreted to imply a requirement that APD evaluate whether an involuntarily committed person meets the is eligible for such commitment, and, if such eligibility cannot be established, to petition the trial court for an order directing the person’s release.

If the Court refuses to read the periodic review and petition requirements into the statutes, the federal 11th Circuit Court of Appeals may find Florida’s involuntary commitment scheme to be unconstitutional.

Retroactive Application of the Miller Rule to Juvenile Life Without Parole Sentences

By Herron Bond

In Falcon v. State (SC13-865), argued on March 6, 2014 (oral arguments available here), the Supreme Court of Florida considered a motion for post-conviction relief about whether to allow individualized sentencing for a 15 year old who in 1999 was given a mandatory sentence of life without the possibility of parole for the murder of a cab driver in 1997.

In her initial brief, Falcon argued that her sentence is unconstitutional following the decision of the U.S. Supreme Court in Miller v. Alabama, 567 U.S. ___ (2012). In Miller, the U.S. Supreme Court ruled that mandatory sentences of life without parole for juvenile offenders violate the 8th Amendment’s prohibition on cruel and unusual punishment. The Court found that a sentence given to a juvenile under mandatory sentencing schemes which treat juvenile offenders the same as adult offenders is not proportional to the offense because children possess certain transient traits, such as “immaturity, irresponsibility…and recklessness,” that make them less culpable for their actions and more likely to reform than adults. According to Falcon, the Court’s reasoning in Miller is particularly applicable in her case because her upbringing was marked by mental and sexual abuse by her step-father and a feeling of abandonment after her parents’ divorce.

Falcon argued that the Miller rule should apply retroactively in state collateral review proceedings. She claimed that the U.S. Supreme Court intended its decision to apply in the collateral review phase, pointing to the fact that a consolidated plaintiff in Miller was also seeking post-conviction relief. Falcon also argued that the rule from Teague v. Lane, 489 U.S. 288, compels the State to apply the Miller rule in her case because “evenhanded justice requires that [a new rule] be applied retroactively to all who are similarly situated.” Finally, Falcon argued that retroactive application would be consistent with the standard articulated by the Florida Supreme Court in Witt v. State, which weighs fairness against the need for finality in determining whether to apply a rule retroactively. 387 So.2d 922 (Fla. 1980). Under Witt, a ruling from the U.S. Supreme Court that is constitutional in nature must be “of fundamental significance” in order to satisfy the balancing test. According to Falcon, the Miller rule is of fundamental significance because it limits the sentencing power of the state, significantly affects fairness, impugns to the accuracy of the prior sentence, and will affect a relatively small number of convictions because the mandatory sentencing statute has only been in place for 20 years.

In its answer brief, the State argued that Federal law does not mandate Florida’s retroactive application of the Miller rule. According to the State, the Court in Miller never addressed retroactivity when granting relief to the consolidated post-conviction plaintiff. Additionally, the State claimed that states are not required to rely on the test from Teague.

The State’s answer brief focused primarily on whether retroactive application of the Miller rule would comply with Florida’s Witt standards. The State claims that Miller does not comply because the rule is not “of fundamental significance.” First, the State pointed to the fact that Miller did not preclude the State’s ability to issue a life sentence, it merely added additional procedures before doing so. Next, the State argued that the rule is not of sufficient magnitude to warrant retroactivity because it has no bearing on the determination of guilt or innocence. Finally, the State pointed to the fact that the rule will affect a large number of previously-convicted defendants and place a substantial burden on the administration of justice by requiring large amount of new evidence in the individualized sentencing hearings.

The Legislature may resolve some of these issues going forward; the House recently passed CS/HB 7035, which addresses juvenile sentencing for a range of crimes. It remains to be seen how the Florida Supreme Court will address sentences already issued.

E-Zer Said than Done: Court Considers Will Prepared With Commercially Available Form

By Jacek Stramski

The Supreme Court’s decision in Aldrich v. Basile (SC11-2147), issued last week, provides the latest example of how using a commercial form to prepare a will can turn out to be much more expensive in the long run than enlisting some professional help to do so.

The decedent, Ms. Aldrich, in 2004 executed a will on an “E-Z Legal Form” (you can’t make this up, folks). In the will, Ms. Aldrich stated that specific property of hers, including her house, car, bank accounts and life insurance, be distributed to her sister, Ms. Eaton. Ms. Aldrich provided in the will that if her sister should predecease her, then all of her listed property should be left to her brother, Mr. Aldrich. The will did not have a residuary clause that would apply to any property not listed in the will.

Inevitably, the sister predeceased Ms. Aldrich and left her property to Ms. Aldrich. Ms. Aldrich placed the property in a new account that she opened up for the purpose of keeping the newly inherited money. When Ms. Aldrich passed in turn, Mr. Aldrich was appointed personal representative of her estate. Two of Ms. Aldrich’s nieces asserted an interest in the probate action, stating that part of the estate was subject to intestate succession (a set of default rules of inheritance that apply to a deceased person’s property not subject to a will).

Mr. Aldrich initiated an adversary proceeding, arguing that Ms. Aldrich intended her entire estate to pass to him. In support, he pointed out that only he and the sister were listed in the will, that section 732.6005(2), Fla. Stat., provides that a will shall be construed to pass all property owned by the testator at death, and that Florida applies legal presumptions against interpreting wills to result in partial intestacy. The trial court held in favor of the nieces, finding that the lack of general devises and a lack of a residuary clause in the will meant that the property acquired by Ms. Aldrich after the execution of her will was not disposed of by the will, and would pass through intestacy. The First District Court of Appeal reversed the trial court, finding that the intent of the deceased expressed in the will indicated that her property should pass to her brother.

On appeal, the Supreme Court unanimously held that the property acquired by Ms. Aldrich after her will was executed was not subject to the will. The Court noted that the intention of a testator as expressed in the will does control the disposition of the testator’s property, but only to the extent specified in the will. The Court pointed out that section 732.101, Fla. Stat., which provides that any part of an estate that is not disposed of by will is subject to intestacy, was not limited for estates containing after-acquired property. The fact that Ms. Aldrich kept a hand-written note with her will, drafted after the death of Ms. Aldrich’s sister, which would grant all her property to her brother, was not relevant as that note was not executed in accordance with the requirements of the Florida Probate Code.

Justice Pariente filed a concurring opinion, in which she stated that this case reminded her of the phrase “penny-wise and pound-follish,” and lamented the lack of foresight of Ms. Aldrich in “using a commercially available form, an “E-Z Legal Form,” which did not adequately address her specific needs—apparently without obtaining any legal assistance.” A worthwhile lesson for all.

Are Administrative Negligence Claims Against Hospitals Subject to Medical Malpractice Act Requirements?

By Herron Bond

Earlier this month the Supreme Court of Florida heard arguments in Burns v. Palms West Hospital (SC12-1387), a dispute revolving around claims for administrative negligence brought against a hospital for continuing to retain physicians who had previously refused to treat patients with certain emergency medical conditions.

In 2006, a patient with a severe gastrointestinal condition was admitted to Palms West Hospital. The Hospital, party to a contract with the State of Florida to provide 24 hour emergency medical care in the field of gastroenterology, contacted six physicians under its employ to provide care. All six refused to respond to the call and the patient subsequently died while being transported to another hospital.

One month later, Enrique Casasnovas was admitted to the Hospital with a similar condition. Again, the Hospital’s six gastroenterologists refused to provide care and Casasnovas was transferred to another hospital after a four hour delay. A short time after being transferred, he suffered a cardiac arrest, which led to his death several weeks later.

The Personal Representative for Casasnovas’ estate filed suit against the Hospital under section 766.110 of the Medical Malpractice act and under a theory of administrative negligence for failing to terminate the six gastroenterologists despite the 24 hour care agreement with the State and knowledge of the physicians’ previous failure to provide services to patients with emergency conditions. The Hospital argued that the claims should be dismissed because the Estate failed to comply with the pre-suit requirements of the MMA. To this point, the Estate responded that it was under no obligation to comply with the Act because its claims were founded in administrative negligence, not medical malpractice. The Fourth DCA ruled in favor of the Hospital, finding that “the medical negligence umbrella is wide and often encompasses business decisions which result in injury to the patient.” The Estate sought discretionary review by the Supreme Court of Florida.

In its initial brief to the Court, the Estate first urged that the pre-suit provision of the MMA should be narrowly construed because it restricts access to the courts. Pointing to two Florida appellate decisions, the Estate claimed that this provision (in its narrowly construed form) requires a defendant to prove that the use of a medical negligence standard of care is necessary for the plaintiff’s claim. Liles v. P.I.A. Medfield, Inc., 681 So.2d 711 (Fla. 2d DCA 1995); Pierrot v. Osceola Mental Health, Inc., 106 So.3d 491, 493 (Fla. 5th DCA 2013). According to the Estate, the Fourth DCA based its ruling on two findings, neither of which considered the necessity of a medical negligence standard of care: First, the court considered causation, ruling that the claims “[are] medical negligence claim[s] when [the Estate] is claiming that [the decedent’s] death resulted from the lack of treatment.” Second, the court found that the claims are for medical negligence because they “would likely be proved using the prevailing standard of care for hospitals.”

The Estate argued that the Hospital would not have been able to satisfy its burden of proving that a medical standard of care was necessary for the claims at issue had the Hospital properly construed the pre-suit requirements. According to the Estate, the claims could have been brought under an administrative negligence standard because the claims were based on the Hospital’s administrative decision-making and the physicians’ non-medical decision to refuse care. The Estate claimed that the physicians’ refusal was “part of an ongoing business-decision dispute between the physician groups” and that their absence had nothing to do with their medical assessments of the patient. Further, the Estate cited similar cases in which courts allowed administrative negligence claims in a health care setting. Joseph v. University Behavioral LLC, 71 So.3d 913 (Fla. 5th DCA 2011)(Psychiatric facility failed to separate patients despite a request, resulting in a physical altercation); Acosta v. HealthSpring of Fla., Inc., 2013 WL 3723310 (Fla. 3d DCA July 17, 2013)(Hospital delayed the patient’s transfer to another hospital to secure a “preferred provider” rate at a specific facility); Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002 (Fla. 3d DCA 1997)(Hospital mislabeled a urine sample); Burke v. Snyder, 899 So.2d 336 (Fla. 4th DCA 2005)(Hospital negligently hired a physician who sexually assaulted a patient during a medical examination).

Next in its initial brief, the Estate argued that the Fourth DCA failed to address its statutory claim under §766.110 of the MMA. This provision requires the Hospital to “adopt procedures for selection and review of the medical care and treatment that its medical staff was rendering to patients” and “supervise that medical staff to ensure that its risk management processes were being diligently carried out.” According to the Estate, the Hospital violated this statute by retaining these gastroenterologists, thereby jeopardizing future patients’ access to medical care.

Finally, the Estate claimed that Fourth DCA’s grant of certiorari relief was improper because the lower court did not depart from the essential requirements of the law. According to the Estate, the lower court’s ruling that the claims fell outside of medical negligence would constitute a legal error (assuming arguendo that the ruling was erroneous), falling short of a “departure from the essential requirements of law.”

In its reply brief, the Hospital argued that the claims are “for medical negligence” because the underlying conduct of the physicians is medical in nature. To this point, the Hospital cited § 766.106(1)(a), Fla. Stat. (2008), which defines a “claim for medical negligence” as “a claim, arising out of the rendering of, or the failure to render, medical care or services.” The Hospital urges that this definition clearly includes the claims at issue in this case because without the physicians’ “failure to render” medical care, no administrative action by the Hospital would have been necessary. The Hospital drew a comparison to Tunner v. Foss, 655 So. 2d 1151 (Fla. 5th DCA 1995), in which the Fifth DCA ruled that a plaintiff’s claims were “for medical negligence” where a doctor refused to “obtain reasonable and necessary consultations from specialists/and or hospitalize” the decedent, even though the physician’s actions were motivated by a desire to avoid economic loss that would result from obtaining the consultations. According to case law cited by the Hospital, claims derived from the wrongdoing of a physician must rely upon the medical negligence standard of care. Burke v. Snyder, 899 So. 2d 336 (Fla. 4th DCA 2005). Thus, the MMA would apply to common law and statutory claims in this case.

Next, the Hospital argued that the pre-suit requirements of the MMA should apply even if the claims were not found to rely on medical negligence by the physicians. The Hospital provided two justifications for the argument. First, the pre-suit requirements are not limited to negligence claims, pointing to several situations in which courts and the legislature have recognized that the provision applies even when the claim does not rely on a medical standard of care (intentional torts, contract claims, claims derived from actions by nonprofessionals, and claims based on a business decisions made by a hospital). Second, the Hospital argued that its administrative actions ,would be subject to a medical standard of care, regardless of the underlying conduct of the physician, because those actions are “professional services involving medical judgment and skill.” The Hospital pointed to Florida courts’ recognition that “the ongoing duty to review and evaluate medical staff at issue in this case is part of the delivery of medical services to the public” O’Shea v. Phillips, 746 So. 2d 1105, 1109 (Fla. 4th DCA 1999) and 2003 amendments to the MMA, which substituted the term “medical malpractice” for the broader term “medical negligence.” §766.106(1)(a), Fla. Stat.

Regarding the claim that the pre-suit requirements restrict the Estate’s access to courts, the Hospital responded by arguing that the provision applies uniformly to all plaintiffs asserting medical malpractice claims and, in order to uphold the intent of the legislature, mere procedural difficulty should not be sufficient to circumvent the Act.

Finally, the Hospital argued that the lower court’s ruling that the claims fell outside of medical negligence constituted a departure from the essential requirements of law because, after heavy litigation, courts have determined that claims such as the plaintiff’s fall within the MMA.