Pursuit of Ch. 415 Neglect or Abuse of a Vulnerable Adult Claims Against Hospitals in Florida
Florida law provides statutory causes of action for medical malpractice (F.S. Ch. 766) and neglect of a vulnerable person (Ch. 415). This article discusses efforts by injured patients to recover against hospitals under Ch. 415 rather than Ch. 766. Specifically, it addresses 1) whether a Ch. 415 neglect of a vulnerable adult claim is an available remedy for a patient to pursue recovery against a hospital; and 2) if so, what actions by the hospital or its staff can serve as a foundation for a patient’s Ch. 415 claim.
Regarding the first issue, Ch. 415’s statutory language and the caselaw on this issue suggest patients, if they qualify as a vulnerable adult under Ch. 415, have a right of action under Ch. 415 separate from any other cause of action available to them, including Ch. 766 medical malpractice claims. Regarding the second issue, the same caselaw also makes clear a Ch. 415 claim against a hospital cannot be based on allegations of medical negligence.
These two principles seem straightforward; in reality, they are anything but. Instead, the same caselaw that suggests patients have a remedy under Ch. 415 against a hospital independent of other claims the patient may have against the hospital has created significant problems in understanding 1) what actions by a hospital or its staff could make the hospital a Ch. 415 caregiver (an essential element of a Ch. 415 neglect of a vulnerable adult claim); and 2) whether allegations plead in support of a Ch. 415 claim are allegations of medical negligence.
Regarding the first point, Ch. 415’s statutory language is clear a person or entity must affirmatively accept a caregiver role before a vulnerable adult can pursue a Ch. 415 claim against that person or entity. Although two Florida district courts of appeal have commented in dicta hospitals may serve as Ch. 415 caregivers, neither decision provides any analysis or discussion as to what actions by the hospital or its staff could indicate such affirmative acceptance. Neither does the language of Ch. 415 itself. Therefore, it is nearly impossible to determine what actions by a hospital or its staff could constitute such affirmative acceptance.
Second, Ch. 415 provides “neglect” of a vulnerable adult can consist of a caregiver’s failure to provide a vulnerable adult with medicine or medical services. Despite this language, the caselaw referenced above states Ch. 415 claims against hospitals cannot be based on allegations of “medical negligence,” which Ch. 766 defines as a claim arising out of the rendering of, or the failure to render, medical care or services. Although Ch. 415’s definition of neglect provides that a Ch. 415 neglect claim can be based on failing to provide a vulnerable adult with medicine or medical services, this caselaw reads into Ch. 415 a requirement that a patient’s Ch. 415 claim must be based on actions by the hospital or its staff that do not relate to the rendering or failure to render medical care or services.
Establishing that a Ch. 415 claim against a hospital is not based on allegations of medical negligence is difficult, as an extensive body of caselaw construes virtually any alleged actions by a hospital or its staff as allegations of medical negligence, no matter what claim is premised on those actions. This caselaw suggests there are few allegations a patient can make to support a Ch. 415 claim against a hospital a court will not consider allegations of medical negligence.
This is the correct result. Hospitals only provide medical care or services and Ch. 766, not Ch. 415, was intended by the Florida Legislature to be the sole remedy for patients injured by health care providers like hospitals. Patients, therefore, should be confined to Ch. 766 to assert any claims against a hospital based on the hospital or its staff’s actions.
The Relevant Statutes: F.S. Chs. 415 and 766
• Neglect of a Vulnerable Adult: Ch. 415 — Ch. 415 was enacted as part of the Adult Protective Services Act, which was passed to assist “vulnerable adults,” whom the act defines as “a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging.”1 The legislature intended to give these individuals “the same rights as other citizens and, at the same time, protect the individual from abuse, neglect and exploitation.”2 The act provides for assistance and services for vulnerable adults, including protective supervision.3 The act also provides a civil remedy for any vulnerable adult who has been abused, neglected, or exploited.4 Under this provision, a vulnerable adult can recover actual and punitive damages, costs, and attorneys’ fees.5 The statute also states, “The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a vulnerable adult.”6
Ch. 415 defines “abuse” as “any willful act or threatened act by a relative, caregiver, or household member which causes or is likely to cause significant impairment to a vulnerable adult’s physical, mental, or emotional health.”7 It defines “neglect” as:
[T]he failure or omission on the part of the caregiver or vulnerable adult to provide the care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult, including, but not limited to, food, clothing, medicine , shelter, supervision, and medical services , which a prudent person would consider essential for the well-being of a vulnerable adult. The term “neglect” also means the failure of a caregiver or vulnerable adult to make a reasonable effort to protect a vulnerable adult from abuse, neglect, or exploitation by others. “Neglect” is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.8
A “caregiver” is defined by Ch. 415 as:
[A] person who has been entrusted with or has assumed the responsibility for frequent and regular care of or services to a vulnerable adult on a temporary or permanent basis and who has a commitment, agreement, or understanding with that person or that person’s guardian that a caregiver role exists. “Caregiver” includes, but is not limited to, relatives, household members, guardians, neighbors, and employees and volunteers of facilities as defined in subsection (9).9
Finally, “exploitation” includes misappropriating the vulnerable adult’s funds or property or failing to use the vulnerable adult’s income and assets for his or her support or maintenance.10
& #x2022; Medical Malpractice: Ch. 766 — Ch. 766 is the vehicle for asserting claims for medical negligence against health care providers in Florida. The Florida Legislature enacted Ch. 766 in 1985 “to provide a plan for prompt resolution of medical negligence claims.”11
Ch. 766 defines a “‘[c]laim for medical negligence’ or ‘claim for medical malpractice’ [as] a claim, arising out of the rendering of, or the failure to render, medical care or services.”12 To prove a claim of medical negligence, a plaintiff must prove “the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.”13 The prevailing professional standard of care is the “level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”14 To determine if a plaintiff is pursuing a medical negligence claim versus some other claim, a court must “look to whether the plaintiff must rely on the medical negligence standard of care as set forth in [§]766.102(1).”15
Ch. 766 contains several procedural requirements that must be satisfied before suit can be filed.16 The claimant first must conduct an investigation to corroborate 1) there are reasonable grounds to believe all prospective defendants were negligent in his or her treatment or care; and 2) that negligence resulted in injury.17 This corroboration consists of “a verified written medical expert opinion” from a medical expert, whom Ch. 766 defines as a health care provider in the same or similar specialty as the allegedly negligent health care provider.18
After the presuit investigation is complete, a claimant must give written notice to the allegedly negligent health care provider(s) of his or her intent to file suit.19 The notice must be accompanied by the verified medical expert opinion.20 Upon receipt of the notice, the health care provider’s insurer or the health care provider (if self-insured) has 90 days to investigate the claim.21 During this presuit period, the parties can engage in informal discovery, such as written questions, document requests, and unsworn statements.22 If the claim is denied, that denial must be accompanied by a verified medical expert opinion.23 Upon denial of the claim or the passage of 90 days from receipt of the notice, the claimant has 60 days or the remaining period in the two-year medical malpractice statute of limitations, whichever is greater, to file suit.24
The Relevant Caselaw
In Bohannon v. Shands Teaching Hospital and Clinic, Inc., 983 So. 2d 717 (Fla. 1st DCA 2008), a patient received a transplant at the defendant acute care hospital and was allegedly improperly intubated,25 leaving the patient in a vegetative state.26 The patient’s family terminated life support after 79 days and sued the hospital, asserting a Ch. 415 claim for “‘medical abuse and neglect resulting in wrongful death.’”27 In support of this claim, the plaintiffs alleged the patient “entered the defendant hospital for transplant surgery, was improperly intubated post-surgery, and as a result, ‘developed profound encephalopathy and persistent vegetative state.’”28 Plaintiffs further alleged the patient was a vulnerable adult, the hospital and its employees were “‘entrusted with, or assumed the responsibility for, frequent and regular care of services to [the patient] with the commitment, agreement or understanding that with him a caregivers [sic] role existed as that term is defined in [§]415.103(4),’” and the hospital had provided the patient “‘with day or residential care or treatment and is a ‘facility’ as that term is defined by [§]415.102(8).’”29 Plaintiffs further alleged:
At all times material hereto [d]efendant had a non-delegable duty to provide to the deceased, Scott Allen Gould, a patient placed entirely and exclusively in their [sic] care, the knowledge, skill and care which is generally used in similar cases and circumstances by healthcare providers in communities having similar medical standards and available facilities, or that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar healthcare providers.30
The defendant hospital moved to dismiss the Ch. 415 claim and “assert[ed] that chapter 415 ‘was not enacted to impose civil liability for medical negligence beyond that already permitted under Florida’s medical malpractice and wrongful death statutes, especially not against acute care hospitals which intend only to provide limited short term surgical care to patients, and which never intended to provide day or residential care to a vulnerable adult.’”31 The hospital also argued Ch. 415 was “‘not intended to apply to medical negligence of the type described in Count I of the [a]mended [c]omplaint’” and that the plaintiffs’ Ch. 415 claim was really a Ch. 766 medical negligence claim, whose presuit requirements the plaintiffs had not complied with.32 The hospital further argued the plaintiffs failed to state a Ch. 415 claim because they did not sufficiently allege there was an agreement between the patient and the hospital to provide frequent and regular care to the patient, as required by Ch. 415.33
The trial court dismissed the Ch. 415 claim, noting, “‘this is clearly a medical malpractice case’ and ‘not a case that involves a vulnerable person and a caregiver.’”34 It gave plaintiffs leave to file an amended complaint asserting a medical negligence claim under Ch. 766, which they did not do.35 The trial court entered final judgment and plaintiffs appealed.36
The Bohannon court upheld the trial court’s dismissal of the Ch. 415 count, noting “the plaintiffs/appellants sought to make defendant/appellee hospital vicariously liable for the actions of its healthcare providers under a medical negligence standard of care.”37 It further held the allegations supporting the Ch. 415 claim were allegations of medical negligence.38
Despite holding the plaintiffs’ allegations in support of their Ch. 415 claim were allegations of medical negligence and upholding dismissal on that basis, the Bohannon court was unwilling to rule a hospital could never constitute a caregiver against whom a Ch. 415 claim can be maintained, despite being urged to do so by the defendant hospital and its amicus curiae, the Florida Hospital Association.39 The Bohannon court wrote: “We reject the position of the hospital and its amicus curiae because we can conceive of scenarios in which acute care hospitals might become ‘caregivers’ of ‘vulnerable adults’ under the [Ch.] 415 definitions, and might then ‘abuse’ or ‘neglect’ those vulnerable adults.”40 The court’s rationale was:
For example, once [patient] became comatose, he arguably became a “vulnerable adult” as that term is defined in [Ch.] 415, and once the hospital undertook his care in that condition for the period after the improper intubation until life support was terminated, instead of sending him to a long term care facility, it arguably became a “caregiver” as that term is defined in chapter 415. If, during the period after the improper intubation and before [patient]’s life support was terminated, the hospital’s agents or employees had intentionally “abused” or “neglected” him, as those terms are defined in chapter 415, the hospital would arguably have been subject to suit under [F.S. §]415.1111. However, there are no allegations in the amended complaint that the hospital “abused” or “neglected” [patient] during the period after he entered a “persistent vegetative state.”41
The Bohannon court also noted, however, Ch. 415 “was not intended by the Florida Legislature to provide an alternate cause of action for medical negligence.”42
The takeaway from Bohannon is 1) a hospital can be a Ch. 415 caregiver; and 2) a patient cannot base a Ch. 415 claim against a hospital on allegations of medical negligence.
Shortly after Bohannon, the Third District Court of Appeal decided Tenet South Florida Health Systems v. Jackson, 991 So. 2d 396 (Fla. 3d DCA 2008). In Tenet, the personal representative of a patient sued a hospital, asserting a claim under Ch. 415.43 The complaint alleged the patient received pre-operative care at the hospital, was admitted a week later for a carotid artery procedure, and then remained in the hospital for 11 days before being transferred out.44 The complaint alleged the hospital was negligent in:
[F]ailing to administer proper nursing care and other medical services and was negligent by failing to perform an inpatient nursing assessment; failing to implement “latex precautions”; failing to adequately assess and monitor; failing to appreciate early implications of increasing respiratory rate and sore throat in a patient with recent neck surgery and multiple allergies; and failing to provide appropriate care and treatment.45
The hospital moved to dismiss the plaintiff’s Ch. 415 claim, arguing it really was a claim for medical malpractice under Ch. 766 and asserting the plaintiff failed to comply with Ch. 766’s presuit notice requirement.46 The trial court denied the motion to dismiss and the hospital filed a petition for a writ of certiorari to quash the order denying its motion to dismiss.47
The Third DCA reversed the trial court’s denial of the motion to dismiss, noting:
Chapter 415 was enacted to protect vulnerable adults from neglect by caregivers and specifically defines the terms caregiver and neglect as used in the statute. Based on the allegations of the [c]omplaint, [defendant hospital] neither meets the required definition of a caregiver, nor does the [c]omplaint allege neglect by [defendant hospital] as defined by the statute.48
In support of this conclusion, the Tenet court further noted:
Based on the allegations of the [c]omplaint, [defendant hospital] does not meet the [Ch.] 415 definition of a caregiver. The allegations in the Complaint are that [patient] was admitted to [hospital], which is a hospital, for the purpose of a surgical procedure, a right carotid endarectomy. Nowhere in the complaint is there any allegation that there existed “a commitment, agreement, or understanding…that a caregiver role exist[ed]” between [defendant hospital] and [patient].49
As in Bohannon, the Tenet court noted that, even if the plaintiff had sufficiently alleged the hospital met the definition of a caregiver under Ch. 415, the Ch. 415 claim would still be one for medical negligence.50 The court’s rationale for this conclusion was:
The [c]omplaint alleges that [the patient] was admitted to [the hospital] for a right carotid endarectomy, a medical procedure. [The plaintiff] alleges injuries during this hospitalization due to the failure to perform an inpatient nursing assessment; failure to implement “latex precautions”; failure to assess and monitor; failure to appreciate early implication of increasing respiratory rate and sore throat in a patient with recent neck surgery and multiple allergies; and failure to provide appropriate care and treatment. These are all medical care or services which the plaintiff claims were either negligently rendered or not rendered at all resulting in injury. All of these allegations can be proven only through evidence that the alleged negligent action or inaction of a health care provider, i.e. , the nurse or other medical care providers, fell below the prevailing standard of care in the community for that health care provider resulting in injury.51
Despite reversing the trial court’s denial of the hospital’s motion to dismiss, the Tenet court, like the Bohannon court, noted: “This is not to say that a hospital such as [the defendant hospital] cannot be a caregiver pursuant to the statute….We state only that, based on the allegations in this [c]omplaint, [defendant hospital] does not meet the [Ch.] 415 definition of a caregiver.”52
Most of the published post- Bohannon and Tenet circuit court decisions considering a hospital’s motion to dismiss a patient’s Ch. 415 claim have denied the motion and allowed the patient to pursue a Ch. 415 claim against the hospital.53 In one such case, Baker v. Memorial Healthcare Group, Inc., No. 16-2010-CA-2756, 2010 WL 9043410 (Fla. Cir. Ct. 2010), the court denied the hospital’s motion to dismiss because the “[p]laintiff’s complaint, unlike the complaint at issue in Bohannon, contains factual allegations, which if viewed in the light most favorable to [p]laintiff, allege the elements of a cause of action under [§]415.1111.” That court also noted: “The existence of a cause of action for medical malpractice under [Ch.] 766 does not necessarily negate the existence of a claim under [Ch.] 415.”54
Bohannon , Tenet , and Ch. 415 Seem to Suggest Patients Can Bring Ch. 415 Claims Against Hospitals 55
Ch. 415 states the remedies provided under that statute are in addition to any other causes of action available to a vulnerable adult. Specifically, §415.1111 provides, “The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a vulnerable adult.”56 This theoretically includes any Ch. 766 claims a vulnerable adult may have.57 Under this statutory provision, Ch. 415, therefore, should be construed as providing a cause of action separate from Ch. 766.
The existence of a Ch. 415 cause of action for hospital patients is also implied in both Bohannon and Tenet.58 If a hospital can be a patient’s caregiver, as both cases suggest, conceivably there are scenarios in which a patient can pursue a Ch. 415 neglect claim against a hospital, assuming the patient can satisfactorily allege the other elements of a Ch. 415 neglect claim. This is a much more difficult task than one would think, however.
Difficulties Created by Bohannon , Tenet , and Ch. 415
Although Ch. 415’s statutory language and Bohannon and Tenet suggest there are scenarios in which patients can pursue Ch. 415 claims against hospitals, a plaintiff still must satisfy two hurdles to do so: 1) establish the hospital affirmatively accepted a caregiver role; and 2) establish the hospital or its staff’s alleged actions were not allegations of medical negligence. These are difficult hurdles to overcome, particularly the second.
• What Actions Constitute the Hospital’s Affirmative Acceptance of a Role as Caregiver? — The first hurdle, which is presented by Bohannon and Tenet, is their lack of guidance as to what actions on a hospital or its staff’s behalf could constitute the hospital’s affirmative acceptance of a role as the patient’s caregiver, a necessary element of a Ch. 415 claim.
Ch. 415 defines a “caregiver” as a person “who has been entrusted with or has assumed the responsibility for frequent and regular care of or services to a vulnerable adult on a temporary or permanent basis who has a commitment, agreement, or understanding with that person or that person’s guardian that a caregiver role exists.”59 Absent affirmative acceptance of such a role, a person is not a caregiver for purposes of Ch. 415; however, Ch. 415 does not define what would constitute such “affirmative acceptance.”60 Neither do Bohannon or Tenet. In fact, neither decision provides any guidance on this issue. In Bohannon, the hospital’s “affirmative acceptance” consisted of its decision not to send the patient to a long-term care facility after improper intubation left the patient in a vegetative state.61 That court provided no basis for concluding the decision not to transfer the patient constituted a commitment or agreement with the patient a caregiver relationship existed. Clinically, it may have been perfectly appropriate to keep a patient in the hospital, but the case does not address this issue. Similarly, Tenet provides no discussion or analysis regarding what facts could constitute affirmative acceptance of a caregiver role by a hospital other than noting that “[n]owhere in the complaint is there any allegation that there existed a ‘commitment, agreement or understanding…that a caregiver role existed’ between [defendant hospital] and [patient].”62
The Tenet and Bohannon decisions leave plaintiffs, hospitals, and courts with no guidance in determining what actions on a hospital or its staff’s part could constitute affirmative acceptance of a role as a patient’s caregiver. The single factual scenario in which a court has stated a hospital might be a caregiver is if the patient is in a vegetative state and the hospital does not transfer the patient to a long-term care facility. This complete lack of guidance in Ch. 415, Tenet and Bohannon as to what factual allegations could establish a hospital’s affirmative acceptance of a caregiver role is problematic because the facts of every case involving a Ch. 415 claim against a hospital will be different because of each patient’s unique medical issues.
• When Does a Failure to Provide a Vulnerable Adult with Medical Care or Services Constitute Ch. 415 Neglect? — Ch. 415 defines “neglect” as a failure to provide the care, supervision, and/or services necessary to maintain a vulnerable adult’s physical or mental health, including food, medicine, or medical services.63 The statutory language, thus, expressly contemplates a Ch. 415 neglect claim can be based on a caregiver’s failure to provide a vulnerable adult with medicine or medical services. Despite this language, however, Bohannon and Tenet both conclude a Ch. 415 claim cannot be based on allegations of medical negligence.64
To find the definition of “medical negligence,” one must refer to Ch. 766, which provides that a claim for medical negligence is “a claim arising out of the rendering of, or the failure to render, medical care or services. ”65 At least on the face of the two statutes, therefore, it appears one could base separate and independent Ch. 766 and Ch. 415 claims against the same person or entity based on the same failure to provide medical care or services.
However, Bohannon and Tenet both concluded a Ch. 415 claim against a hospital cannot be based on allegations of medical negligence.66 Ch. 415’s definition of neglect suggests this is the wrong result; if a hospital is a caregiver, the patient is a vulnerable adult, and the hospital fails to provide the patient with medical care or services, that seems to be an actionable violation of Ch. 415. Nevertheless, courts are likely to dismiss any Ch. 415 claim against a hospital based on the failure to provide medical care or services, as the Bohannon and Tenet courts did, because the courts will construe the claim as being based on allegations of medical negligence.
• A Ch. 415 Claim Against a Hospital Will Likely Be Classified as a Ch. 766 Claim — Even to the extent a vulnerable adult believes himself or herself to have crafted factual allegations supporting a Ch. 415 claim against a hospital that do not constitute allegations of medical negligence, another problem presents itself in the extensive body of Florida caselaw that construes virtually any alleged action by a hospital or its staff as relating to the rendering of or failure to render medical care or treatment, as constituting allegations of medical negligence.67 In reviewing this caselaw, it is striking how broadly courts are willing to read Ch. 766’s definition of medical negligence. The cases reflect many disparate actions on behalf of a hospital or its staff, which courts invariably find to be allegations of medical negligence. The consequence of the courts’ broad reading of Ch. 766’s definition of medical negligence is that, no matter how a claim is styled, courts likely will treat virtually any claim against a hospital or other health care provider as premised upon allegations of medical negligence, thereby converting the claim into a claim for medical malpractice under Ch. 766.
This includes Ch. 415 claims. Tenet held the hospital’s alleged “failure to perform an inpatient nursing assessment; failure to implement ‘latex precautions’; failure to assess and monitor; failure to appreciate early implication of increasing respiratory rate and sore throat in a patient with recent neck surgery and multiple allergies; and failure to provide appropriate care and treatment” were “all medical care or services which the plaintiff claims were either negligently rendered or not rendered at all resulting in injury.”68 These allegations all seem to be the types of alleged failures to provide a vulnerable adult with medical care or services that could constitute a basis for a Ch. 415 neglect claim under Ch. 415’s definition of neglect. However, the Tenet court still held these were allegations of medical negligence that could not support a Ch. 415 neglect claim.69 In light of this decision and the caselaw described above, it is difficult to see what allegations a plaintiff could make against a hospital to support a Ch. 415 claim that a court would not consider to be allegations of medical negligence. For instance, in reviewing the cited cases, a Ch. 415 claim could not be based upon giving a plaintiff the wrong food, incorrectly operating medical equipment, failing to assess a patient, screening of a donor’s blood, or leaving foreign objects in a patient during a medical procedure.70
The consequence of all this is that a court is likely to treat anything styled as a Ch. 415 claim against a hospital as based on allegations of medical negligence, therefore, constituting a Ch. 766 claim, no matter the factual allegations supporting that claim.71 Successfully alleging a Ch. 415 claim against a hospital based on allegations that are not allegations of medical negligence, thus, is likely to be a difficult task.
Conclusion
Although §415.1111 and Ch. 415’s definition of neglect both suggest a patient can bring a Ch. 415 claim against a hospital based upon the failure to provide a vulnerable adult patient with medical care or services, Bohannon and Tenet both suggest a patient’s ability to pursue such a claim is very limited. Both cases give no guidance how a hospital indicates affirmative acceptance of a role as a patient’s caregiver, so a patient is left in the dark how to sufficiently allege that a hospital or its staff affirmatively accepted a role as the patient’s Ch. 415 caregiver. Both cases also read into Ch. 415 a requirement that a Ch. 415 neglect claim not be based upon allegations of medical negligence, despite language in Ch. 415 that seems to suggest such a claim can be based on a caregiver’s failure to provide a vulnerable adult with medical care or services. This prohibition against Ch. 415 claims based upon allegations of medical negligence, when considered in combination with caselaw that holds virtually any claim against a hospital to be based on allegations of medical negligence, no matter what the alleged actions of the hospital or its staff were, suggest attempting to pursue a Ch. 415 claim against a hospital likely will be a losing battle for a patient.
This is the right result. Hospitals provide medical care and services and any claim against them necessarily relates to such care and services. Restricting a patient’s ability to bring a Ch. 415 claim against a hospital does not impair the patient’s ability to recover for injuries the patient suffered as a result of his or her care or treatment at a hospital, as the patient retains a remedy under Ch. 766. Bohannon made clear that Ch. 415 is “not intended by the Florida Legislature to provide an alternate cause of action for medical negligence.”72 Although doing so in a convoluted way, Bohannon and Tenet achieve a result consistent with that intention.
1 Fla. Stat. §415.102(27).
2 Fla. Stat. §415.101(2).
3 Fla. Stat. §§415.105-06.
4 Fla. Stat. §415.1111 (“A vulnerable adult who has been abused, neglected, or exploited 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. The action may be brought by the vulnerable adult, or that person’s guardian, by a person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian, or by the personal representative of the estate of a deceased victim without regard to whether the cause of death resulted from the abuse, neglect, or exploitation.”).
5 Id.
6 Id.
7 Fla. Stat. §415.102(1).
8 Fla. Stat. §415.102(16) (emphasis added).
9 Fla. Stat. §415.102(5).
10 Fla. Stat. §415.102(7).
11 Fla. Stat. §766.201(2).
12 Fla. Stat. §766.106(1)(a).
13 Fla. Stat. §766.102(1).
14 Id.
15 Integrated Health Care Services, Inc. v. Lang-Redway, 840 So. 2d 974, 980 (Fla. 2002).
16 J.B. v. Sacred Heart Hosp. of Pensacola, 635 So. 2d 845, 848 (Fla. 1994) (“Chapter 766, Florida Statutes (1989), which governs standards for recovery in medical malpractice and medical negligence actions, imposes certain notice and presuit screening requirements upon a claimant. These provisions must be met in order to maintain a medical malpractice or medical negligence action against a healthcare provider.”); Weinstock v. Groth, 629 So. 2d 835, 836 (Fla. 1993) (“It is clear that the provisions of the Medical Malpractice Reform Act must be met in order to maintain an action against a healthcare provider.”).
17 Fla. Stat. §766.203.
18 Fla. Stat. §§766.203(1)-(2); 766.102(5).
19 Fla. Stat. §766.106.
20 Id.
21 Fla. Stat. §766.106(3).
22 Fla. Stat. §§766.106(6); 766.205.
23 Fla. Stat. §766.203(3).
24 Fla. Stat. §766.106(4).
25 Intubation is the placement of a flexible plastic tube into the trachea (windpipe) to maintain an open airway through which to administer certain drugs.
26 Bohannon, 983 So. 2d at 717-18.
27 Id at 718.
28 Id.
29 Id. at 719.
30 Id. (emphasis removed).
31 Id. at 720.
32 Id.
33 Id.
34 Id.
35 Id.
36 Id.
37 Id. at 721.
38 Id.
39 Id. at 720.
40 Id.
41 Id. at 720-21 (emphasis added).
42 Id. at 721.
43 Tenet, 991 So. 2d at 396.
44 Id. at 398.
45 Id.
46 Id.
47 Id.
48 Id.
49 Id. at 399.
50 Id. (“Even if the [c]omplaint were to allege sufficiently that [defendant hospital] were a caregiver pursuant to Chapter 415, the claim is still one for medical malpractice and not for elder abuse.”).
51 Id.
52 Id. (citing Bohannon ).
53 See, e.g., Carr v. Memorial Healthcare Group, Inc., No. 16-2009-CA-017582, 2010 WL 7124792 (Fla. Cir. Ct. 2010) (denying hospital’s motion to dismiss and noting, “In Bohannon v. Shands Teaching Hospital and Clinics, Inc., 983 So. 2d 717 (Fla. 1st DCA 2008), the First District Court of Appeal held that plaintiff’s [sic] could properly allege a cause of action under Chapter 415 in the event they alleged facts supporting the statutory elements of a vulnerable adult, a caregiver, and statutory neglect. In this case, the plaintiff properly alleged those elements.”); Smith v. Memorial Healthcare Group, Inc. , No. 16-2010-CA-002777, 2010 WL 9422526 (Fla. Cir. Ct. June 22, 2010) (same).
54 Baker, 2010 WL 9043410 at *1 (citing Fla. Stat. §415.1111).
55 This article does not address what a patient must allege to establish he or she meets Ch. 415’s definition of a vulnerable adult. Neither Bohannon nor Tenet, nor any other published opinion has addressed this issue, other than Bohannon’s comment the improperly intubated patient in that case “arguably became a ‘vulnerable adult’” once he became comatose. Bohannon, 983 So. 2d at 720.
56 Fla. Stat. §415.1111.
57 Baker, 2010 WL 9043410 at *1 (Fla. Cir. Ct. 2010) (“The existence of a cause of action for medical malpractice under Chapter 766 does not necessarily negate the existence of a claim under Chapter 415.”).
58 Bohannon, 983 So. 2d at 719-20 (“We reject the position of the hospital and its amicus curiae because we can conceive of scenarios in which acute care hospitals might become ‘caregivers’ of ‘vulnerable adults’ under the Chapter 415 definitions, and might then ‘abuse’ or ‘neglect’ those vulnerable adults.”); Tenet, 991 So. 2d at 399 (“This is not to say that a hospital such as North Shore cannot be a caregiver pursuant to the statute.”).
59 Fla. Stat. §415.102(5) (emphasis added).
60 S.S. v. Dept. of Children and Family Services, 805 So. 2d 879, 880 (Fla. 2d DCA 2001) (No caregiver relationship existed between a daughter and mother because “[t]he facts here do not reveal that [daughter] S.S. had any kind of commitment to [mother] M.S. or that S.S. and M.S. had any kind of agreement that S.S. would act as M.S.’s caregiver.”).
61 Bohannon, 983 So. 2d at 720.
62 Tenet, 991 So. 2d at 399.
63 Fla. Stat. §415.102(16).
64 Bohannon, 983 So. 2d at 720-721 (upholding the dismissal of a plaintiff’s Ch. 415 claim on the grounds the claim improperly was based on allegations of medical negligence and noting Ch. 415 “was not intended by the Florida Legislature to provide an alternate cause of action for medical negligence”); Tenet, 991 So. 2d at 399 (upholding dismissal of Ch. 415 claim in part because the claim was supported by allegations of medical negligence).
65 Fla. Stat. §766.106(1)(a) (emphasis added).
66 See note 64.
67 See, e.g., Stubbs v. Surgi-Staff, Inc. , 78 So. 3d 69, 70 (Fla. 4th DCA 2012) (alleged negligence in patient’s fall when patient attempted to move from treatment to gurney under the direction of a hospital orderly arose from the rendering of medical care or services); Palms West. Hosp., Ltd. Partnership v. Burns, 83 So. 3d 785, 788 (Fla. 3d DCA 2011) (claims against hospital for negligent retention and continued staffing of doctors who failed to treat patients were claims arising under Ch. 766); Dr. Navarro’s Vein Centre of the Palm Beach, Inc. v. Miller, 22 So. 3d 776 (Fla. 4th DCA 2009) (patient’s burns suffered during laser hair removal arose out of the rendering of medical care of services because the procedure must be performed or supervised by a physician); Puentas v. Tenet Hialeah Health System, 843 So. 2d 356 (Fla. 3d DCA 2003) (claim that arose from the hospital’s kitchen employees giving plaintiff incorrect food was a claim for medical malpractice); Goldman v. Halifax Medical Center, Inc. , 662 So. 2d 367 (Fla. 5th DCA 1995) (hospital employee’s alleged failure to properly calibrate mammography machine so plaintiff’s breast implant ruptured was a claim of medical negligence); Nellinger v. Baptist Hospital of Miami, Inc. , 460 So. 2d 564 (Fla. 3d DCA 1984) (plaintiff who slipped on a pool of amniotic fluid while getting off an examination table alleged a claim for nonmedical, simple negligence, but court held it was a claim for medical malpractice). Lifesouth Cmty. Blood Centers, Inc. v. Fitchner, 970 So. 2d 379 (Fla. 1st DCA. 2007) (claim for negligent screening of donor blood arose from the rendering of a medical service); Lakeland Reg’l Med. Ctr. v. Pilgrim, 107 So. 3d 505 (Fla. 2d DCA 2013) (patient injured when a piece of a brush broke and lodged in her pancreatic duct during endoscopic procedure had to comply with presuit requirements for medical negligence claims); Mount Sinai Med. Ctr. v. Fotea, 937 So. 2d 146, 147 (Fla. 3d DCA 2006) (claim for improper commitment under the Baker Act resulting from erroneous blood and urine tests arose out of the rendering of medical services); Paulk v. Nat’l Med. Enters. Inc., 679 So. 2d 1289 (Fla. 4th DCA 1996) (claim against hospitals alleging they operated as criminal enterprise to defraud patients by extending hospitalization without medical necessity to exhaust available insurance coverage was claim for medical malpractice); Tunner v. Foss, 655 So. 2d 1151 (Fla. 5th DCA 1995) (claim alleging physician failed to refer patient to specialist or admit him to hospital due to the physician’s economic self-interest arising out of relationship with corporate healthcare provider was one for medical malpractice).
68 Tenet, 991 So. 2d at 399.
69 Id.
70 To be fair, however, courts also routinely hold that claims that could probably be construed as claims for medical malpractice based upon the caselaw discussed above are not based on the rendering of medical care or treatment and, therefore, are not subject to Ch. 766’s presuit screening requirements. See, e.g., Quintanilla v. Coral Gables Hosp., Inc., 941 So. 2d 468, 470 (Fla. 3d DCA 2006) (nurse spilled hot tea on patient); Mobley v. Gilbert E. Hirschberg, P.A., 915 So. 2d 217, 219 (Fla. 4th DCA 2005) (plaintiff hit in the head with a dental x-ray machine); Holmes Reg’l Med. Ctr., Inc. v. Dumigan, 151 So. 3d 1282 (Fla. 5th DCA 2014) (hospital’s failure to remove drug from its inventory when it knew or should have known it had been recalled over four months after the manufacturer’s recall); Burke v. Snyder, 899 So. 2d 336 (Fla. 4th DCA 2005) (doctor committed sexual battery during exam); Tenet St. Mary’s, Inc. v. Serratore, 869 So. 2d 729 (Fla. 4th DCA 2004) (hospital employee, attempting to return the patient’s chair to an upright position by kicking the footrest, inadvertently kicked the patient).
71 The previously discussed circuit court cases are contrary to this conclusion. However, those decisions are too sparse of detail to determine whether they are consistent with the true thrust of Bohannon and Tenet.
72 Bohannon, 983 So. 2d at 721.
Stephen P. Smith is an associate at Smith Hulsey & Busey in Jacksonville and former law clerk to Judge Gary R. Jones of the U.S. District Court for the Northern District of Florida. He is a graduate of the University of Notre Dame and Vanderbilt Law school, and practices in the areas of medical malpractice, health care litigation, and commercial litigation.
