Specialty Hospital-Gainesville, Inc. v. Charles Barth

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-511
_____________________________
SPECIALTY HOSPITAL-
GAINESVILLE, INC.,
Appellant/Cross-Appellee,
v.
CHARLES BARTH,
Appellee/Cross-Appellant.
_____________________________
On appeal from the Circuit Court for Alachua County.
Monica J. Brasington, Judge.
July 15, 2019
B.L. THOMAS, J.,
Appellant/Cross Appellee Specialty Hospital-Gainesville
appeals a final judgment awarding Appellee/Cross Appellant
Charles Barth damages under section 415.1111, Florida Statutes,
which provides a cause of action for a vulnerable adult against
“any perpetrator” where the vulnerable adult has been “abused,
neglected, or exploited as specified in this chapter” (emphasis
added). Mr. Barth filed a complaint asserting damages under this
theory and sought damages for medical malpractice under chapter
766, Florida Statutes. The jury found Appellant liable for damages
on both counts.
On the medical-malpractice issue, Mr. Barth cross appeals the
trial court’s ruling designating Heartland of Orange Park as a non-
party under Fabre v. Martin 1, and section 768.81(3), Florida
Statutes. The jury found that Heartland’s negligence was also at
fault for medical negligence and damages during Heartland’s post-
operative treatment of Mr. Barth after he was treated at Specialty
Hospital of Gainesville.
We reverse in both appeals. We hold that under Bohannon v.
Shands Teaching Hosp. & Clinics, Inc., 2 an allegation of medical
negligence subject to the statutory requirements of chapter 766,
Florida Statutes, cannot form the basis of a claim under section
415.1111, Florida Statutes. On the cross appeal, we reverse and
hold that Specialty is responsible for the full amount of damages
to Mr. Barth on the medical-negligence claim.
Background
After suffering paralysis during an aortic-aneurism operation
at Shands Teaching Hospital and Clinics, Inc., Mr. Barth was
transferred to Select Specialty Hospital-Gainesville, a long-term
acute-care facility which provides medical treatment to wean
patients off breathing ventilators and wound care. Generally, such
hospitals focus on patients who are not healthy enough to return
home or enter an assisted-living facility, but who need medical
treatment for extended time periods. After Mr. Barth was treated
at Specialty, where he suffered a deep-tissue pressure ulcer, he
was transferred back to Shands and eventually Heartland of
Orange Park for treatment of the injury, including surgery to
replace necrotic skin and additional surgery necessitated by the
infections.
Mr. Barth later brought a two-count civil suit against
Specialty of Gainesville. Count I of the amended complaint alleged
Specialty committed medical malpractice by failing to reposition
Mr. Barth or otherwise prevent avoidable pressure ulcers, causing
catastrophic injuries. The parties stipulated that Mr. Barth
complied with the applicable pre-suit notice requirements under
chapter 766, Florida Statutes, for this count.
Specialty Hospital pled comparative fault by a non-party
tortfeasor as an affirmative defense, which identified Heartland of
1 623 So. 2d 1182 (Fla. 1993).
2 983 So. 2d 717 (Fla. 1st DCA 2008).
2
Orange Park Florida as a subsequent treater of Mr. Barth. Mr.
Barth filed a motion for summary judgment on Specialty ’s
comparative fault defense, arguing that Specialty was liable for
any negligence of subsequent treating providers because Specialty
caused the injury under Stuart v. Hertz Corp. 3 The trial court
denied Mr. Barth’s motion for summary judgment.
Count II alleged Specialty abused and neglected Mr. Barth in
violation of the Adult Protective Services Act, Sections 415.101-
415.113, Florida Statutes, by improperly restraining Mr. Barth
and by not responding to his calls for assistance, even when he
believed he was suffocating or choking. Count II alleged that Mr.
Barth was a “vulnerable adult” and that Specialty was a
“caregiver,” as those terms are defined in section 415.102, Florida
Statutes.
Specialty Hospital moved to dismiss Count II, arguing that it
described medical negligence and therefore could not support a
cause of action under Bohannon and section 415.1111, Florida
Statutes. The trial court denied Specialty’s motion to dismiss and
denied a later motion for summary judgment that made the same
argument. Specialty moved in limine to prohibit Mr. Barth from
entering expert medical testimony to prove his Chapter 415 claim,
which the trial court granted.
The following evidence was presented in the two-week jury
trial.
Carol Snyder, a wound care nurse, testified that Mr. Barth
developed a Stage II deep-tissue sacral bedsore at Specialty’s
facility. She testified that once any bedsore is discovered,
regardless of stage, it should be assessed and documented every
shift. She said Mr. Barth was given a specialty bed and Tegaderm
was placed on the wound to absorb drainage.
The parties stipulated that Mr. Barth’s medical expenses were
$363,531.24. Specialty admitted that the medical costs were
reasonable and necessary but denied causing the need for the
entire amount of medical treatment.
3 351 So. 2d 703 (Fla. 1977).
3
Mackenzie Slay, corporate representative for Specialty,
testified that Mr. Barth developed bedsores at Specialty’s facility
and that Specialty was noncompliant with policies and procedures.
She testified that daily individualized orders are required for
restraints and that improper use of restraints is abusive and
enhances the risk of injuries. She stated it is against Specialty’s
policy to fail to respond to call button requests or to place call
buttons out of reach. She said timely repositioning of patients is
the best way to prevent deep tissue bedsores and is especially
important for patients in restraints, and that paraplegics are
known to have a high risk for developing bedsores.
Karen Harrison, a registered nurse, testified that patients at
Specialty’s facility are at high risk for bedsores due to the type of
facility. She said that had an incident report been filed, nurses
should have quickly attended to Mr. Barth.
Dr. Shahrzad Grey, MD, a treating physician at Heartland,
testified by deposition that Mr. Barth arrived at Heartland on
June 1, 2012 and stayed there until August 13. She testified that
Mr. Barth’s records indicated a Stage II sacral wound when Mr.
Barth was discharged from Specialty’s facility. Dr. Grey had no
opinion, however, on where or how Mr. Barth developed his
pressure sores. Dr. Grey testified that the wound care team at
Heartland later noted Mr. Barth’s sacral injury as a Stage IV
wound.
Dr. Grey testified that the sacral wound was noted as
“suspected deep tissue injury” the day after Mr. Barth was
admitted to Heartland, and “did not make any change” at
Heartland. When asked, “you’re saying he was always a Stage IV
the whole time he was at Heartland?” she answered: “Based on
what I see here, the PUSH score is a 16 the whole time.”
Joyce Black, Ph.D., an expert on deep-tissue injury, opined
that Specialty failed to prevent Mr. Barth’s deep-tissue pressure
ulcer which manifested in their care. She stated that the wound
was avoidable. Dr. Black testified that Specialty’s nurses failed to
turn Mr. Barth from side to side to prevent excessive pressure on
the sacral area of his body which caused the deep-tissue injury.
She also testified that Specialty’s nurses failed to follow doctors’
orders and applicable protocols to treat pressure injuries. She
4
testified that because Mr. Barth was not turned regularly at
Specialty’s facility, he developed the injury which required
multiple surgeries to attempt to heal those injuries. Dr. Black was
not critical of Mr. Barth developing a Stage I wound at Specialty,
calling it a warning sign, but opined that nurses were negligent
after learning of the wound. Dr. Black testified that although
restraint of Mr. Barth’s arms was “the last option” to deal with
confused or agitated patients, Specialty attempted nothing else.
Dr. Black testified about Mr. Barth’s treatment at Heartland,
where Mr. Barth was transferred for aggressive treatment of his
sacral wound. She testified she would have applied different
bandages than Heartland used, but she said “in the end it wouldn’t
have changed the outcome.”
On cross-examination, Dr. Black reiterated that “failure to
move [Mr. Barth] is where the negligence is.” Dr. Black opined
that Shands incorrectly assessed Mr. Barth’s wound as a Stage II
pressure sore when it received him after discharge from Specialty,
because the injury was a full-thickness wound when Mr. Barth
arrived at Shands. Dr. Black admitted she did not notice Mr. Barth
had to wait fifty-six days at Heartland before getting a specialty
mattress or that in the seventy-four days Mr. Barth was at
Heartland, there were only two references to repositioning Mr.
Barth. She testified that if true, such conduct would constitute
breaches of the standard of care.
Mr. Barth testified by video deposition that he was admitted
to Shands for aortic-aneurism repair but was rendered a
paraplegic during the procedure. Mr. Barth’s first concrete
memory of Specialty’s facility was of his arms being tied down to
the sides of the bed with a breathing tube in his neck. He testified
that the glass across his room was reflective and he could see
nurses laughing and joking about whether anyone would respond
to his button calls, saying “it was a game to them.” He said he had
no memory of ever being repositioned by Specialty’s staff. He said
that whenever he was unable to breathe, he threw things into the
hall and pulled out his monitor wires to get nurses to come in, but
they would just lecture him and tighten his restraints.
Maggie Barth, Mr. Barth’s daughter, testified that her father
was put in restraints the day he was admitted to Specialty, and
5
that when she arrived each morning, he would be lying on his back.
When cross-examined about injuries found at other facilities, Ms.
Barth said, “You guys [Specialty] just did the sacral wound.” She
agreed Heartland should have prevented Mr. Barth from
developing additional pressure sores but said it was harder for
Heartland to move him due to his sacral wound.
Dr. Christopher Davey, an expert in wound care, testified that
Mr. Barth developed a preventable deep-tissue sacral injury at
Specialty’s facility. He testified that the sacral wound was not a
Stage II pressure ulcer when Mr. Barth was admitted to Heartland
– that it was “much worse than that.” On cross-examination, Dr.
Davey admitted that some patients develop pressure sores even
with the best of care, but opined that in Mr. Barth’s case, the injury
was caused by negligence. Dr. Davey testified that a Stage II
pressure sore is not itself indicative of negligence and he admitted
that Mr. Barth’s sore was documented as a Stage II sore. Dr. Davey
opined that the wound had developed into a Stage III wound at
Specialty’s facility. He further testified that if Heartland failed to
reposition Mr. Barth regularly, it would be a breach of the
standard of care and would be enough to cause a Stage II sore to
advance to a Stage IV wound.
Michelle Barth, Mr. Barth’s oldest child, testified that Mr.
Barth would “get very agitated” if the nurses did not respond to his
calls. She admitted that she believed Heartland also failed to
provide adequate care to Mr. Barth. Dr. Christopher Leber, a
physical rehabilitation specialist, testified about damages and a
life-care plan he prepared for Mr. Barth for the pressure sores. He
did not prepare an opinion on causation.
Dianne Cook, a nurse who worked for Specialty, testified that
keeping a patient in restraints without a doctor’s order was a
deviation of the standard of care. She further testified that using
restraints required a preliminary assessment of the patient’s
safety and a doctor’s order, with new orders every twenty-four
hours.
Dr. Lalit Kanaparthi, Mr. Barth’s treating physician at
Specialty’s facility, testified that he ordered Mr. Barth to be
restrained because he was at high risk of injury from pulling out
his newly installed ventilator and feeding tubes. Dr. Kanaparthi
6
testified that he never ordered restraints to punish patients; he
only ordered them if there was a high risk of life-threatening
injuries.
Dr. Charles Wilson, a physician at Specialty’s facility, testified
that he would order restraints for patients to protect a feeding
tube, a tracheostomy, or a central feeding line. He testified that
pulling out a feeding tube could cause a catastrophic health risk
for the patient.
Dr. Inna Sheyner, Specialty’s expert in geriatric medicine,
testified that she did not see any deviations from the standard of
care by Specialty’s staff. Dr. Sheyner also opined that Mr. Barth’s
wound progressed to a Stage IV pressure ulcer sometime after he
was discharged from Specialty’s hospital. Dr. Sheyner testified
that it would be impossible for Mr. Barth’s wound to take as long
to progress to a deep-tissue sore as Mr. Barth’s experts had
suggested.
At the close of trial, Specialty renewed its motion for directed
verdict; the trial court allowed both of Mr. Barth’s claims to go to
the jury. The jury found Specialty liable for medical malpractice
and awarded damages in the amount of $561,748.13 for present
and future medical costs and pain and suffering. The jury found
that there was comparative fault on the part of Heartland,
apportioning 30% of fault to Specialty and 70% of fault to
Heartland. The jury also found that Specialty was a caregiver
under Chapter 415, Florida Statutes, and that it neglected or
abused Mr. Barth by the improper use of restraints and the failure
to respond to Mr. Barth’s calls for medical assistance. The jury
awarded damages on this claim in the amount of $25,000. The jury
found that punitive damages were not warranted. Specialty
moved to set aside the verdict, and the trial court denied the
motion. Mr. Barth moved for attorneys’ fees under section
415.1111, Florida Statutes, following the verdict.
Analysis
I. The Appeal
As the supreme court has held, an “order on a motion for
directed verdict or for judgment notwithstanding the verdict is
reviewed de novo. . . [and the appellate court] must affirm the
7
denial of the motion ‘if any reasonable view of the evidence could
sustain a verdict in favor of the non-moving party.” Meruelo v.
Mark Andrew of Palm Beaches, Ltd., 12 So. 3d 247, 250 (Fla. 4th
DCA 2009). “In addition, [the reviewing court] must view the
evidence and all inferences of fact in the light most favorable to the
nonmoving party.” Kopel v. Kopel, 229 So. 3d 812, 819 (Fla. 2017).
In Bohannon v. Shands Teaching Hosp. & Clinics, Inc., 983
So. 2d 717, 720-21 (Fla. 1st DCA 2008), this Court held that
Chapter 415 “was not intended by the Florida Legislature to
provide an alternative cause of action for medical negligence.” Id.
at 721. The holding in Bohannon excluded any medical-
malpractice or medical-negligence claims from the orbit of chapter
415. And since our decision in Bohannon, rendered more than a
decade ago, the legislature has not abrogated that decision,
indicating legislative approval: “Long-term legislative inaction
after a court construes a statute amounts to legislative acceptance
or approval of that judicial construction. Goldenberg v. Sawczak,
791 So. 2d 1078, 1081 (Fla. 2001).
The Third District has interpreted the statute as we did in
Bohannon and continue to interpret the statute here. In the same
year this court decided Bohannon, the court held in Tenet S. Fla.
Health Sys. v. Jackson, that the hospital was not a “caregiver”
under section 415.102 (4), Florida statutes, but even assuming
arguendo that the hospital had become a caregiver, its alleged
“failure to appreciate early implication of increasing respiratory
rate and sore throat in a patient with recent neck surgery and
multiple allergies” was related to medical care or services. 991 So.
2d 396, 399 (Fla. 3d DCA 2008). And because the challenged
conduct involved medical care “negligently rendered or not
rendered at all resulting in injury[,]” remedies provided under
Chapter 766 were the appropriate avenue of relief for persons
injured as a result of medical negligence or malpractice. Id. And
neither our court in Bohannon or the Third District in Jackson
held that a plaintiff could simply add a count for medical
negligence to a suit seeking relief under chapter 415 based on
allegations of medical negligence.
Chapter 766, Florida Statutes, provides the exclusive remedy
for claims “arising out of the rendering of, or the failure to render,
medical care or services.” § 766.106(1)(a), Fla. Stat. (2018). To
8
determine if a claim asserts medical malpractice, a court will “look
to whether the plaintiff must rely upon the medical negligence
standard of care as set forth in section 766.102(1).” National Deaf
Acad., LLC v. Townes, 242 So. 3d 303, 309 (Fla. 2018). In Townes,
a violent altercation broke out at a treatment facility and staff
members tackled a resident and placed him in a “TACT protective
hold.” Id. at 306. Medical and non-medical staff were trained to
perform the TACT hold and were authorized to decide when it was
appropriate. Id. at 307. Because the TACT hold was administered
in that instance to protect residents of the facility, not provide
medical treatment to the plaintiff, the supreme court held it was
not directly related to medical care or services. Id. at 314.
Moreover, the allegations did not state medical negligence, as the
“administration of the hold ‘did not require medical skill or
judgment as non-medical staff were taught the procedure and were
authorized to decide whether to employ it.’” Id. (quoting Townes
v. Nat’l Deaf Acad., LLC, 197 So. 3d 1130, 1136 (Fla. 5th DCA
2016)).
This is the relevant analysis to determine whether a claim
asserting abuse of a vulnerable adult can be brought under chapter
415. If the claim involves medical negligence which requires
compliance with the pre-suit procedures and other provisions of
chapter 766, the claim cannot be asserted under chapter 415; if the
claim asserts non-medical negligence or criminal conduct, it can be
asserted under chapter 415.
That statute refers to “perpetrators” for a reason. § 415.1111,
Fla. Stat. (2018). The entire legislative scheme of chapter 415 is to
punish “perpetrators” of abuse, neglect or exploitation, not medical
negligence. Id.
The overarching and critical sentence in section 415.1111,
Florida Statutes, reads as follows: “A vulnerable adult who has
been abused, neglected or exploited 4 as specified in this chapter
has a cause of action against any perpetrator and may recover
actual and punitive damages for such abuse, neglect or
exploitation.” (Emphasis added). Supporting our decision in
Bohannon, and our analysis here, the legislature in the
4 Both parties agree that Specialty was not liable for any
exploitation of Mr. Barth.
9
immediately preceding subsection of 415.1111, Florida Statutes
provides that: “A person who knowingly and willfully fails to report
a case of known or suspected abuse, neglect, or exploitation of a
vulnerable adult, or who knowingly and willfully prevents another
person from doing so, commits a misdemeanor of the second
degree, punishable as provided in s.775.082 or s.775.083.” Under
the theory of Appellee, and the appellant in Bohannon, every nurse
or doctor, or any other person, that was aware of medical
negligence which could somehow be equated with abuse or neglect
under chapter 415, commits a crime, if the nurse or doctor is aware
of any “perpetrators” fails report such conduct to the Department
of Children and Families.
We must construe the statute in para materia:
A basic tenet of statutory interpretation is that a
“statute should be interpreted to give effect to every
clause in it, and to accord meaning and harmony to all of
its parts.” Acosta v. Richter, 671 So. 2d 149, 153–54
(Fla.1996). Accordingly, “statutory phrases are not to be
read in isolation, but rather within the context of the
entire section.” Id. at 154. In other words, “[j]ust as a
single word cannot be read in isolation, nor can a single
provision of a statute.... A provision that may seem
ambiguous in isolation is often clarified by the remainder
of the statutory scheme.” Smith v. United States, 508 U.S.
223, 233, 113 S. Ct. 2050, 124 L. Ed. 2d 138 (1993).
Jones v. ETS of New Orleans, Inc., 793 So. 2d 912, 914–15 (Fla.
2001).
The entire legislative scheme of chapter 415 is to protect
vulnerable adults, not to provide a duplicative remedy for medical
malpractice. The rationale is apparent from the very first section
of the act, 415.101, Florida Statutes, which specifically expresses
legislative intent: “The Legislature recognizes that there are many
persons in this state, who, because of age or disability, are in need
of protective services.” (Emphasis added). This is further explicated
in section 415.103(1), Florida Statutes, regarding the “Central
Abuse Hotline”: “The department shall establish and maintain a
central abuse hotline that receives all reports made pursuant to
section 415.1034 in writing or through a statewide toll-free
10
telephone number. Any person may use the statewide toll-free
telephone number to report known or suspected abuse, neglect, or
exploitation of a vulnerable adult[.]” (Emphasis added). This
subsection then provides detailed procedures for the department
to investigate such reports.
This chapter does not intend to criminalize health care
providers or anyone else who may fail to report medical negligence,
the subject of an entirely different chapter with includes extensive
procedures, investigations, and protections, including pre-suit
investigations: “Presuit investigation of medical negligence claims
and defenses . . . shall apply to all medical negligence claims and
defenses.” § 766.203(1), Fla. Stat. (2018) (emphasis added).
And we note that long before pre-suit and other specialized
procedures were implemented by the Legislature, the Florida
Supreme Court recognized the specialized unique nature of
medical-malpractice actions, stating that the “complex issues of
liability to be resolved in a medical malpractice action are foreign
to the resolution of liability in the typical personal injury suit.”
Stuart v. Hertz Corp., 351 So. 2d 703, 706 (Fla. 1977) (emphasis
added). The same logic applies here: the complex issues of medical
negligence under chapter 766 cannot be permitted to be litigated
as a parallel suit under section 415.1111, Florida Statutes,
designed to address a completely different type of wrongful
conduct.
We recognize section 415.1111, Florida Statutes, states that
the “remedies provided in this section are in addition to and
cumulative with other legal and administrative remedies provided
to a vulnerable adult.” But this sentence cannot be logically
interpreted to mean that a claim of medical negligence can be
transformed into a claim against a nurse or doctor as a
“perpetrator” of abuse, neglect, or exploitation, as we correctly
recognized in Bohannon. See also Sistrunk v. Hoshall, 530 So. 2d
935, 936 (Fla.1st DCA 1988) (“Although failure to obtain informed
consent may also constitute a technical battery, labeling the act an
intentional tort does not change the action from what it is, a
species of medical negligence”). The allegations here are all
“species of medical negligence.” While the sentence in section
415.1111, Florida Statutes, provides that its remedies are
“cumulative” to other legal and administrative remedies, this
11
language must be interpreted to refer to remedies outside of
chapter 766, Florida Statutes, such as negligence actions not
involving medical care or administrative actions against
caregivers who allow the abuse, neglect or exploitation of
vulnerable adults.
Appellee argues that the improper application and long-term
use of restraints was abuse or neglect of a vulnerable adult, not
medical negligence. Mr. Barth also argues that the nurses’ failure
to promptly respond to his calls for help states neglect of a
vulnerable adult, not medical malpractice. Appellant concedes
that Mr. Barth could have been found a vulnerable adult and that
hospitals can be “caregivers” in certain circumstances. See
Bohannon, 983 So. 2d at 720-21. But Specialty argues that it was
providing medical treatment, and that the evidence of improper
use of restraints and failure to timely respond to calls for help
stated medical negligence, thereby falling within Plaintiff’s
Chapter 766 claim. We agree.
All evidence presented by Appellee indicated that the abuse
or neglect was directly related to medical care or services. See
Bohannon, 983 So. 2d at 721; Tenet, 991 So. 2d at 399. Unlike in
Townes, where non-medical staff were authorized to employ the
TACT hold on a judgment call basis, the restraints here required
individualized orders each day from a doctor. See also 42 C.F.R. §
482.13(e)(5) (“The use of restraint or seclusion must be in
accordance with the order of a physician or other licensed
independent practitioner who is responsible for the care of the
patient . . . .”). Moreover, whereas the tactical hold in Townes was
used to control a violent situation and protect residents, a doctor
ordered Appellee’s restraints to protect the ventilation and feeding
tubes installed after Mr. Barth’s recent surgery.
Appellant argues that the nurses’ alleged failure to respond to
his distress calls alleged medical negligence, and Appellee testified
that the nurses failed to help him while he believed he was
suffocating or choking. This testimony addressed whether his
breathing anxiety on a new ventilator required nursing
intervention and thus implicates medical skill and judgment. The
reason Mr. Barth needed relief from his respiratory distress was
because he needed medical treatment. See Palms W. Hosp. LP v.
Burns, 83 So. 3d 785, 788 (Fla. 4th DCA 2011) (where a request
12
was made for help from a GI doctor, the on-call doctors’ failure to
respond stated medical negligence); South Miami Hosp., Inc. v.
Perez, 38 So. 3d 809, 812 (Fla. 3d DCA 2010) (holding that
allegations of nurses failing to monitor a patient and leaving him
unattended and unrestrained was a claim arising from failure to
render medical services).
This is not to say Mr. Barth failed to prove that his restraints
were negligently applied or that his nurses were not negligent in
their responses to his calls for help. But the responses and
restraints were part of Plaintiff’s medical treatment, and they
required a degree of medical skill or judgment. See Townes, 242
So. 3d at 309. The assertions regarding the restraint lie in medical
negligence, not abuse or neglect as prohibited in section 415.1111,
Florida Statutes.
Appellee’s claims were contained within his suit for damages
from medical malpractice and could not be maintained as a
separate count for damages resulting from alleged abuse or neglect
of a vulnerable adult under chapter 415. To hold otherwise would
be to completely disregard the legislature’s mechanism for claims
for damages for alleged medical malpractice under chapter 766.
Such a holding would be inconsistent with the legislature’s
comprehensive remedy for those claims which necessarily involved
consideration of the competing interests in preventing such claims
from unduly interfering with the effective delivery of complex
professional medical care while preserving patients’ constitutional
rights to access to courts.
We do not hold that claims under section 415.1111, Florida
Statutes, could never be asserted against a hospital or health-care
provider. As this court recognized in Bohannon, such claims could
be maintained for non-medical abuse or neglect. For example, if a
nurse or doctor committed a sexual offense against a vulnerable
adult or attempted to harm a vulnerable adult such a claim could
be asserted under section 415.1111, Florida Statutes. And any
person who knew of such abuse and failed to report it to law
enforcement could be charged under section 415.111, Florida
Statutes.
We therefore reverse the appeal and remand with directions
to enter a directed verdict for Specialty Hospital on Count II of the
13
verdict. As a matter of law, no cause of action existed under section
415.1111, Florida Statutes, based on the allegations of medical
negligence, which encompassed all claims asserted by Mr. Barth.
II. The Cross-Appeal
Denial of a motion for directed verdict on comparative fault
and denial of a motion for judgment notwithstanding the verdict
are both reviewed de novo. Jackson Cty. Hosp. Corp. v. Aldrich,
835 So. 2d 318, 325-326 (Fla. 1st DCA 2002). A trial court should
only grant directed verdict if no evidence was presented on which
the jury could rely. Id.
Adding a non-party to the verdict form requires the defendant
to prove by a preponderance of the evidence that the non-party’s
negligence caused the plaintiff’s injury. § 768.81(3)(a)2., Fla. Stat.
(2012); Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018
(Fla. 1984) (because “the testimony established a no better than
even chance for [plaintiff] to survive, even had there been an
immediate diagnosis of the aneurysm and emergency surgery . . . ,
a jury could not reasonably find that but for the negligent failure
to properly diagnose and treat [plaintiff] he would not have died”).
In Chaskes v. Gutierrez, 116 So. 3d 479, 487, 489 (Fla. 3d DCA
2013), the expert was unable to say there was a better than even
chance that if the proper procedures had been followed by either
defendant, the result would have been different. The Third
District cited Olsten Health Services, Inc. v. Cody, 979 So. 2d 1221,
1225 (Fla. 3d DCA 2008), as a model for evidence that would
survive a motion for directed verdict in pressure-ulcer cases. Id.
at 487 n.26. The expert in Cody testified:
[The nurse] breached the standard of care by not
‘get[ting]’ him to a physician on or about November 21;
and if he had been seen by a physician and/or taken to an
emergency room on November 21, the ‘fissure’ (the
almost-healed Stage 2 decubitus pressure ulcer) would
not have progressed into a Stage 4 pressure ulcer, and
therefore, Cody ‘would not have gone through the five
plus years of suffering with a stage four [pressure ulcer].’
Cody, 979 So. 2d at 1225 (alterations in original) (emphasis
omitted). This testimony was sufficient because it provided
14
evidence that the plaintiff’s wound in Cody would not have
progressed to Stage IV without the facility’s negligence.
Here, Specialty argues that Mr. Barth’s experts opined that
Heartland breached its duty of care and allowed the Stage II
pressure sore incurred at Defendant’s facility to progress into a
more serious Stage IV deep-tissue wound. Mr. Barth replies that
the experts were equivocal about whether Heartland breached the
standard of care, but that even if their testimony established duty
and breach, there was no testimony of Heartland’s negligence
causing the injury. We agree.
Dr. Black and Dr. Davey did not review Heartland’s records
in detail. They opined, however, that failing to provide Plaintiff
with pressure relief devices for forty-one days and only
repositioning him twice in seventy-four days would constitute
breaches of the standard of care. Specialty asked Dr. Davey:
Q. If Heartland’s records indicate that he was
repositioned only twice during the 74 days he stayed [at
Heartland], that would be a breach of the standard of
care, would it not?
A. It would.
Q. And within a reasonable degree of medical
probability would be enough for someone in [Mr. Barth’s]
medical condition to cause a Stage II pressure sore to turn
to a Stage III or IV, correct?
A. Yes. If you continue pressure, pressure sores get
worse, no question.
Together with Heartland’s records showing the actions
discussed with Dr. Davey and Dr. Black, the expert testimony
showed that Heartland’s failure to provide pressure relief devices
and reposition Plaintiff as needed were breaches of the standard
of care. This testimony also established that these breaches of care
could cause a Stage II pressure sore to develop into a Stage III or
Stage IV deep tissue sore.
However, the piece of crucial evidence missing in this case is
testimony that if Heartland had treated Mr. Barth with due care,
his pressure sore probably would have improved, or at least would
15
not have deteriorated to a Stage IV. Unlike in Cody, 979 So. 2d at
1225, where the expert opined that the plaintiff’s pressure ulcer
“would not have progressed into a Stage 4 pressure ulcer,” if the
facility had not been negligent, no one in this case testified that,
more likely than not, Mr. Barth’s damages would have been
different without Heartland’s negligence; in fact, the experts
testified that Specialty’s negligence alone made the resulting injury
inevitable. Cf. Gooding, 445 So. 2d at 1018; Chaskes, 116 So. 3d at
487, 489. Therefore, the trial court should have granted Mr.
Barth’s motion for directed verdict on Specialty’s comparative-
fault defense.
Dr. Davey did not testify that Mr. Barth’s wound had
deteriorated to Stage IV when he was discharged from Specialty’s
facility. Although Dr. Davey maintained that the wound was
“much worse” than a Stage II wound, he opined it was a Stage III
wound. Similarly, although Dr. Black testified that Mr. Barth’s
wound did not change in size or character at Heartland, and that
“[t]he damage had been done” by the time Mr. Barth got to
Heartland, she also testified that when Plaintiff was discharged
from Specialty’s facility to further treatment at Shands, that
provider was able to successfully stall the progression of the wound
and that “the damage started again” at Heartland. Dr. Black was
specifically opining that Specialty’s negligence made the wound’s
downward trajectory inevitable, but even so, her testimony showed
that Mr. Barth’s pressure ulcer could be stabilized temporarily
with proper care, yet “continued on a downhill course” at
Heartland. But regardless, Dr. Black’s testimony falls short of
opining that, but for Heartland’s additional negligent conduct, Mr.
Barth’s injury probably would have been different; in fact, she
expressly said she was not offering an opinion on how Mr. Barth’s
wound did or not progress at Heartland. Without any testimony
that Mr. Barth’s damages were the proximate result of any of
Heartland’s breaches of care, the trial court should not have
allowed Heartland on the verdict form for any apportionment of
damages.
In addition, Mr. Barth argues that even if Specialty somehow
proved causation by Heartland, Mr. Barth was nevertheless
entitled to a directed verdict on Defendant’s comparative-fault
defense, based on Stuart v. Hertz Corp., 351 So. 2d 703, 707 (Fla.
1977); see also Dungan v. Ford, 632 So. 2d 159, 162 (Fla. 1st DCA
16
1994) (holding plaintiff was entitled to jury instruction “that the
original tortfeasor was liable for damages caused by subsequent
improper medical treatment which aggravates or increases the
original injury”); Sistrunk v. Hoshall, 530 So. 2d 935, 936 (Fla. 1st
DCA 1988) (holding that the original tortfeasor was liable for a
subsequent treating physician’s failure to obtain informed
consent); Tucker v. Korpita, 77 So. 3d 716, 719 (Fla. 4th DCA 2011)
(citing Stuart for the proposition that the plaintiff was entitled to
a jury instruction that tortfeasor was liable for aggravated injury
and damages resulting from subsequent medical provider). Mr.
Barth argues that because Heartland was, at most, a subsequent
medical provider who aggravated an injury caused by the initial
tortfeasor, Specialty, as the initial tortfeasor, was liable even if
Specialty adequately proved everything it hoped to at trial
regarding Heartland. We agree and hold that Mr. Barth was
entitled to a directed verdict on the non-party’s purported fault
under Stuart.
In Stuart, the supreme court held that a subsequent provider
of medical malpractice was not a joint tortfeasor with the original
tortfeasor (the owner of the car leased to an at-fault driver in an
accident): “the action of the [plaintiff’s] doctor was in fact an
aggravating intervening cause of the ultimate condition of the
plaintiff. The parties causing plaintiff’s injuries were not joint
tortfeasors but distinct and independent tortfeasors.” 351 So. 2d
at 705 (emphasis added). That is precisely the case here. Heartland
was not a joint tortfeasor with Specialty because, assuming
arguendo any medical negligence was proven by legally sufficient
evidence, such negligence by Heartland was an “aggravating and
intervening cause” of Mr. Barth’s extensive injuries flowing from
his deep-tissue pressure ulcer. The logic underlying the rationale
of Stuart is that a wrong committed by the original tortfeasor, here
indisputably Specialty, cannot be diminished or made less culpable
by any subsequent tortfeasor who aggravates the original injury.
This is analogous to the well-established principle in criminal law
that an original criminal actor is legally culpable in a
manslaughter or murder prosecution for causing a life-threatening
wound, regardless of the potential aggravating factor of a lack of
medical care or medical malpractice. See, e.g., Gilliams v. State,
262 So. 3d 869, 870 (Fla. 1st DCA 2019) (“The bullet wound was a
life-threatening injury for which medical malpractice or lack of
17
optimal medical care was not a legally valid defense under the
circumstances”).
In this case, Specialty attempted to prove that its own
negligence and Heartland’s negligence combined to create a
serious Stage IV pressure sore, which would make them joint
tortfeasors. But no evidence was presented that Heartland caused
Plaintiff’s original injury. Had evidence been entered showing
causation, perhaps the jury could have legally determined, as
Specialty argues, that Mr. Barth sustained a single injury, a Stage
IV pressure ulcer, and that it would not have occurred without
combined negligence by both Heartland and Defendant. See
Gooding, 445 So. 2d at 1018; Jackson, 876 So. 2d at 12. But here,
no expert opined that Mr. Barth’s injury or damages would have
been any different without Heartland’s negligence. Thus, under
Stuart, the trial court erred in allowing apportionment of damages
between Specialty and Heartland, based on a lack of causation
evidence.
Florida’s adoption of comparative fault by statute in section
768.81, Florida Statutes, did not abrogate the Stuart rule, which
states that an initial tortfeasor is liable for subsequent medical
malpractice that adds new injuries or aggravates the initial injury.
There is no discussion of Stuart in Fabre, and the supreme court
does not reverse itself sub silentio. Puryear v. State, 810 So. 2d
901, 905 (Fla. 2002) (“We take this opportunity to expressly state
that this Court does not intentionally overrule itself sub silentio”).
Thus, the principle established in Stuart remains the law: an
alleged independent and subsequent tortfeasor’s negligence does
not diminish the liability of the original tortfeasor who caused the
injury to occur.
We agree with the analysis and rationale of Caccavella v.
Silverman, 814 So. 2d 1145, 1148-49 (Fla. 4th DCA 2002), review
denied, 860 So. 2d 976 (Fla. 2003), and find it applicable here, that
a physician’s alleged negligence in the post-operative treatment of
a patient does not diminish or absolve the negligence of the
original physician:
In Florida, an initial tortfeasor “may be held
responsible for all subsequent injuries including those
caused by medical negligence.” D'Amario v. Ford Motor
18
Co., 806 So. 2d 424, 435 (Fla. 2001) (citing among others
Stuart v. Hertz Corp., 351 So. 2d 703 (Fla. 1977)). This
rule applies “even where the initial tortfeasor is a
physician as well.” Letzter v. Cephas, 792 So. 2d 481, 485
(Fla. 4th DCA)(citing Davidson v. Gaillard, 584 So. 2d 71,
73–74 (Fla. 1st DCA 1991), disapproved on other grounds
by Barth v. Khubani, 748 So. 2d 260 (Fla. 1999)), review
granted, 796 So. 2d 535 (Fla. 2001). . . . “Joint tortfeasors
are usually defined as two or more negligent entities
whose conduct combines to produce a single injury.”
D'Amario, 806 So. 2d at 435 n.12 (citing Davidow v.
Seyfarth, 58 So. 2d 865, 868 (Fla. 1952)). As this court has
recently held, whether defendants are joint tortfeasors is
ordinarily a question of fact. See Letzter, 792 So. 2d at
486. Nevertheless, when determining the efficacy of a
release of one tortfeasor as it applies to other tortfeasors,
the trial court must necessarily consider the “facts” to be
those alleged in the complaint, in light of the plaintiff's
theory of liability. In these circumstances, the plaintiff is
in control of the allegations in the complaint, as well as
accepting or rejecting the terms of any release entered
into with one or several of the tortfeasors involved.
814 So. 2d at 1146-48.
Specialty asserted Heartland was a nonparty joint tortfeasor
subject to allocation of fault. But the facts simply do not bear that
out, even viewing the record in a light most favorable to Specialty.
The facts here establish that at most Heartland was a subsequent,
independent tortfeasor that may have aggravated the injury
caused by Specialty, but under Stuart, Specialty is liable for all
damages resulting from its negligent treatment of Mr. Barth that
caused the deep-tissue pressure ulcer. Whether Heartland’s
medical treatment may have exacerbated that injury is not legally
relevant under Stuart.
Section 768.81, Florida Statutes, which provides for the
allocation of fault among joint and several tortfeasors, does not
apply to independent and subsequent tortfeasors. Therefore, the
statute did not abrogate the decision in Stuart. And as we note, the
supreme court in Fabre neither discussed Stuart nor ever implied
that the statute abrogated its decision or applied to independent
19
tortfeasors, nor should it logically so apply. Independent
tortfeasors, such as Specialty and Heartland, assuming Heartland
was a tortfeasor, are independently liable for their separate and
distinct acts of wrongful conduct. They are not joint tortfeasors
involved in a single incident sharing liability for portions of the
fault of that incident.
We therefore reverse and remand with direction that
Heartland be removed from the verdict and final judgment as a
non-party and that all damages be assessed against Specialty.
Jackson County Hosp. Corp. v. Aldrich, 835 So. 2d 318, 332 (Fla.
1st DCA 2002) (reversing and directing verdict for one defendant
deemed partially at fault and affirming other defendant’s liability,
remanded with direction to award all damages against remaining
party at fault).
REVERSED and REMANDED.
LEWIS and ROBERTS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Jennifer Cates Lester and John D. Jopling of Dell Salter, P.A.,
Gainesville, for Appellant/Cross-Appellee.
Thomas S. Edwards of Edwards & Ragatz, P.A., Jacksonville;
Rebecca Bowen Creed of Creed & Gowdy, P.A., Jacksonville, for
Appellee/Cross-Appellant.
20