       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT
                             July Term 2014

    STEVE BUCK, as Personal Representative of the Estate of JOAN
                       BROWN, deceased,
                           Appellant,

                                   v.

COLUMBIA HOSPITAL CORPORATION OF SOUTH BROWARD, d/b/a
  WESTSIDE REGIONAL MEDICAL CENTER, a Florida company,
                       Appellee.

                            No. 4D13-2165

                         [September 10, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dale Ross, Judge; L.T. Case No. 12-027829 (08).

   Jonathan M. Streisfeld and Scott J. Weiselberg of Kopelowitz Ostrow
Ferguson Weiselberg Keechl, Fort Lauderdale, for appellant.

   Fann & Petruccelli, P.A., Fort Lauderdale, and Mark Hicks, Dinah
Stein, and Shannon Debus-Horn of Hicks, Porter, Ebenfeld & Stein, P.A.,
Miami, for appellee.

FORST, J.

   The trial court dismissed the complaint filed by Appellant Steve Buck
based on his failure to comply with the pre-suit requirements of Chapter
766, Florida Statutes (2012). Appellant argues the trial court erred by
applying Chapter 766 to his complaint because the complaint stated a
claim of simple negligence, as opposed to medical negligence. We disagree
with Appellant and affirm.

                              Background

   Appellant/Plaintiff Steve Buck, as personal representative of the
decedent’s estate, filed a complaint against Appellee/Defendant Westside
Regional Medical Center for the wrongful death of the decedent. The
complaint alleged the following facts:
      On or about May 5, 2012, [the decedent] was brought to
       Westside and admitted due to complications related to her
       chronic obstructive pulmonary disease [“COPD”].
      On or about May 7, 2012, [the decedent] was scheduled to
       have x-rays; consequently, she was transported from her room
       to the radiology floor.
      Prior to the x-rays being taken, [Appellee’s] transport techs
       moved [the decedent] from the transport gurney and lifted her
       onto the x-ray table. In the course of moving [the decedent]
       from the gurney to the x-ray tables, [Appellee’s] employees
       and/or agents accidentally dropped [the decedent] onto the
       hard x-ray table surface causing her to sustain a fracture of
       her lumbar spine.

Because of the decedent’s age, medical condition, and other factors, the
treatment options for the broken back were limited, and her condition
began to decline. The complaint alleges that the broken back, “sustained
at the hands of [Appellee],” ultimately caused the accidental death of the
decedent.

    Appellee moved to dismiss the complaint, alleging that Appellant failed
to comply with the pre-suit requirements of Chapter 766, Florida Statutes,
which covers causes of action in medical negligence cases. Section
766.106 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.” § 766.106(1)(a), Fla. Stat. (2012).

   At a hearing Appellee’s motion, Appellant argued that the pre-suit
requirements of Chapter 766 do not apply because the four corners of the
complaint in this case state a cause of action in general negligence, as
opposed to medical negligence. The trial court ultimately disagreed and
granted Appellee’s motion to dismiss. The complaint was dismissed, with
prejudice, and a final judgment was entered in favor of Appellee.

   On appeal, Appellant argues that the trial court erred by dismissing his
complaint because the four corners of the complaint state a cause of action
in ordinary negligence as opposed to medical negligence.

        Decedent was injured as a Result of Medical Negligence

   We review an order dismissing a complaint with prejudice de novo.
Stubbs v. Plantation Gen. Hosp. Ltd. P’ship, 988 So. 2d 683, 684 (Fla. 4th
DCA 2008) (“Stubbs I”) (quoting Palumbo v. Moore, 777 So. 2d 1177, 1178
(Fla. 4th DCA 2000)). “A motion to dismiss for failure to state a cause of

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action admits all well pleaded facts as true, as well as reasonable
inferences from those facts[;] . . . [a] court may not properly go beyond the
four corners of the complaint in testing the legal sufficiency of the
allegations set forth therein.” Id. (internal quotations and citations
omitted).

    A claim for negligence is subject to Chapter 766’s pre-suit requirements
“if the wrongful act is directly related to the improper application of
medical services and the use of professional judgment or skill.” Stubbs v.
Surgi-Staff, Inc., 78 So. 3d 69, 70 (Fla. 4th DCA 2012) (“Stubbs II”) (internal
quotations and citations omitted). On the other hand, “[c]laims of simple
negligence or intentional torts which do not involve the provision of
medical services do not require compliance with Chapter 766 presuit
requirements.” Indian River Mem’l Hosp. v. Browne, 44 So. 3d 237, 238
(Fla. 4th DCA 2010). When determining whether a complaint alleges a
cause of action in medical negligence versus simple negligence, “[t]he key
inquiry is whether the action arises out of medical diagnosis, treatment,
or care.” Stubbs II, 78 So. 3d at 70-71 (internal quotations and citations
omitted).

    In addressing this issue, balance is required. On the one hand,
“[i]rreparable harm can be shown where a court incorrectly denies a
motion to dismiss for failure to follow pre-suit requirements, as doing so
would eliminate the cost-saving features the Act was intended to create.”
Palms W. Hosp. Ltd. P’ship v. Burns, 83 So. 3d 785, 788 (Fla. 4th DCA
2011) (citing Dr. Navarro’s Vein Ctr. of the Palm Beach, Inc. v. Miller, 22 So.
3d 776, 778–79 (Fla. 4th DCA 2009)). On the other hand, the Florida
Supreme Court has declared “that the pre-suit screening procedures
should be read in a way which favors access to the courts.” Id. (citing
Integrated Health Care Servs., Inc. v. Lang–Redway, 840 So. 2d 974, 980
(Fla. 2002)).

   The Florida Supreme Court, in Silva v. Southwest Florida Blood Bank,
Inc., 601 So. 2d 1184 (Fla. 1992), addressed the pertinent “medical
negligence” terms:

      First, there is no ambiguity to clarify in the words “diagnosis,”
      “treatment,” or “care,” and we find that these words should be
      accorded their plain and unambiguous meaning. In ordinary,
      common parlance, the average person would understand
      “diagnosis, treatment, or care” to mean ascertaining a
      patient’s medical condition through examination and testing,
      prescribing and administering a course of action to effect a
      cure, and meeting the patient’s daily needs during the illness.

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      This parallels the dictionary definitions of those terms.
      According to Webster’s Third International Dictionary (1981),
      “diagnosis” means “the art or act of identifying a disease from
      its signs and symptoms.” Id. at 622. “Treatment” means “the
      action or manner of treating a patient medically or surgically.”
      Id. at 2435. “Care” means “provide for or attend to needs or
      perform necessary personal services (as for a patient or
      child).” Id. at 338. Likewise, in medical terms, “diagnosis”
      means “[t]he determination of the nature of a disease.”
      Stedman’s Medical Dictionary 428 (25th ed. 1990).
      “Treatment” means “[m]edical or surgical management of a
      patient.” Id. at 1626. And “care” means “the application of
      knowledge to the benefit of . . . [an] individual.” Id. at 249.

Id. at 1187.

    The complaint at issue in this case alleges the decedent sustained
injuries while she was in the hospital being treated for her COPD. During
the course of her treatment, and while she was being transported from
her gurney to an x-ray table by hospital employees and/or agents, she
was dropped and injured. As such, this case is very similar to Stubbs II.
In that case, we held the trial court correctly applied the Chapter 766 pre-
suit requirements to a complaint that alleged “[a] hospital orderly . . .
instructed [the appellant] to move from a test bed to a gurney and that she
fell while attempting this due to [the orderly’s] negligence in failing to
exercise reasonable care in assisting her and in failing to prevent her fall.”
Stubbs II, 78 So. 3d at 70, 71.

    We are aware that our holding in Stubbs II was based in part upon
discovery which revealed that the “orderly” referenced in the complaint
“was a nurse, not an orderly” and the court’s decision referenced the
nurse’s “provision of medical care and services.” Id. at 71. Moreover,
Judge May’s concurring opinion presents “[her] view [that] once a medical
procedure has begun, whatever happens during that procedure should be
subject to the requirements for filing a medical negligence action if the
allegations are directed at medical personnel.” Id. at 72 (May, J.,
concurring) (emphasis added). In the instant case, we do not know if the
individuals who were transporting the decedent were doctors, nurses,
“transport tech,” or orderlies. However, we find that is not determinative,
as the complaint itself leads to the conclusion that these hospital
employees or agents were engaged in “the rendering of . . . medical care or
services” in that they were involved in lifting the decedent from the
transport gurney and placing her on the x-ray table as part of a medical
procedure (medical imaging by use of x-rays). As such, they were providing

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for or attending to the patient’s needs and/or performing “necessary
personal services.” Silva, 601 So. 2d at 1187.

    Our conclusion finds support in the case law addressing this issue that
found that the complaint constituted a claim of medical negligence:
Stubbs II, 78 So. 3d at 71-72 (patient was being moved from a “test bed”
to a gurney); Indian River Memorial Hospital, 44 So. 3d at 238 (patient fell
out of a stretcher and the medical negligence related to the failure to
properly secure her on the stretcher). See also S. Miami Hosp. v. Perez, 38
So. 3d 809, 812 (Fla. 3d DCA 2010) (claim for damages attributable to
patient’s fall from a hospital bed in the critical care unit deemed a medical
negligence action); Neilinger v. Baptist Hosp. of Miami, Inc., 460 So. 2d 564,
566 (Fla. 3d DCA 1984) (patient “was descending from an examination
table under the direction and care of hospital employees”); Corbo v. Garcia,
949 So. 2d 366, 368-69 (Fla. 2d DCA 2007) (plaintiff was injured while
connected to physical therapy “electric stimulation” machinery that was
allegedly not properly maintained); Goldman v. Halifax Med. Ctr., Inc., 662
So. 2d 367, 368 (Fla. 5th DCA 1995) (the complaint alleges that the
operator of mammographic equipment “negligently applied excessive
pressure and caused one of [the plaintiff’s] silicone breast implants to
rupture” and that the equipment had not been properly calibrated); St.
Anthony’s Hosp., Inc. v. Lewis, 652 So. 2d 386, 387 (Fla. 2d DCA 1995)
(“The duty of the hospital to select and review health care personnel arises
under the medical malpractice statute [and] the negligent medical
treatment ‘is both necessary to the claims against the [hospital] and
inextricably connected to them.’”) (quoting Martinez v. Lifemark Hosp. of
Fla., Inc., 608 So. 2d 855, 857 (Fla. 3d DCA 1992)).

    The cases in which the court found that the claims related to “ordinary”
negligence are markedly different: Quintanilla v. Coral Cables 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) (concluding the medical treatment had not begun when the plaintiff
was hit in the head with a dental x-ray machine); Tenet St. Mary’s, Inc. v.
Serratore, 869 So. 2d 729 (Fla. 4th DCA 2004) (patient injured when
hospital employee, attempting to return the patient’s chair to an upright
position by kicking the footrest, inadvertently kicked the patient); Lynn v.
Mount Sinai Med. Ctr., Inc., 692 So. 2d 1002, 1004 (Fla. 3d DCA 1997)
(finding that the “regimented collection of urine samples is not a ‘medical
service’”). It is further noted that none of these “ordinary negligence”
decisions were predicated on the negligent employee’s job title or
responsibilities, i.e. whether they were “medical personnel.”

                                Conclusion

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   We find that the instant action arises out of the provision of medical
care and is “directly related to the improper application of medical services
and the use of professional judgment or skill.” See Stubbs II, 78 So. 3d at
70 (internal quotations and citations omitted). Accordingly, the trial court
correctly dismissed the complaint by applying the pre-suit requirements
of Chapter 766, and we affirm.

   Affirmed.

GROSS and GERBER, JJ., concur.

                            *         *        *

   Not final until disposition of timely filed motion for rehearing.




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