                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

JANE DOE,                             NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-696

BAPTIST PRIMARY CARE,
INC.,

      Appellee.

_____________________________/

Opinion filed October 12, 2015.

An appeal from the Circuit Court for Duval County.
L.P. Haddock, Judge.

Theodore S. Pina, Jr., of Nichols & Pina, LLLP, Jacksonville, for Appellant.

Franklin Duke Regan and William Tupper Stone, Jr., of Saalfield, Shad, Stokes,
Inclan, Stoudemire & Stone, P.A., Jacksonville, for Appellee.




SWANSON, J.

      Appellant, Jane Doe, appeals the two final orders entered by the trial court

which, taken together, result in the dismissal with prejudice of counts I and II of

her amended complaint. Upon careful consideration of appellant’s arguments on
appeal, as well as the allegations raised within the four corners of her complaint,

we affirm the dismissal of count I, but reverse the dismissal of count II.

      According to the Amended Complaint, in June 2006 appellant was

diagnosed with “Human Immune-Deficiency Virus” (“HIV”). She was seen by a

physician employed by appellee, Baptist Primary Care, Inc., who confirmed the

diagnosis and began treatment. Appellant chose to keep the diagnosis private “in

light of the social stigma which is associated with HIV.”           In October 2007

appellant’s husband began a new job through which he and appellant obtained

coverage under a group health insurance plan. As a consequence, on October 15,

2007, appellant contacted appellee to request a referral to another physician and

provided appellee with her new insurance information.          Appellee’s employee,

Melissa Cotton, was assigned the task of making the referral.            Cotton was

specifically instructed to make this referral as soon as possible in light of

appellant’s diagnosis, and was provided the new insurance information containing

the name of the husband’s employer. Sometime after October 15, 2007, however,

Cotton disclosed to her boyfriend that appellant was HIV positive. Coincidentally,

the boyfriend worked for the same employer as did the husband. Later, Cotton

also disclosed appellant’s medical condition to other individuals employed by the

company. Then, in approximately January 2009, appellant’s husband was asked

by his employer to drop appellant from the group health insurance plan, but he

                                          2
refused.   Several days later, he was terminated from his employment.             In

approximately April 2009, Cotton’s boyfriend contacted appellant’s husband and

disclosed to him that appellant was HIV positive.

      Count I of the Amended Complaint is entitled “Violation of Privacy by

Disclosure of Private Information.” It alleges that Melissa Cotton, as appellee’s

employee, had access to confidential and private health information concerning

appellant’s status as being HIV positive. It further alleges that Cotton “knew, or

reasonably should have known, that [appellant] expected this medical information

to be kept confidential and private, absent her specific written consent,” and at all

material times, appellee, acting through its employee, Melissa Cotton, “had a duty

pursuant to Baptist Primary Care Policies and Procedures and Florida statutory and

common law to refrain from disclosing [appellant’s] confidential, private, [h]ealth

information without her specific, written consent.” Finally, it alleges appellee

breached that duty by disclosing the “confidential, private” information to

members of the public “without [appellant’s] specific, written, consent.” The

Amended Complaint additionally alleges the information was of no concern to

those to whom it was disclosed “or to the public in general,” was highly offensive

to appellant, and, “[a]s a direct and proximate result of the disclosure, [appellant]

suffered damages including mental anguish and emotional distress, embarrassment,

and humiliation,” which losses are “permanent or continuing[.]”

                                         3
      Count II is entitled “Negligent Training and Supervision,” and alleges the

following:


             20. At all times material, Baptist Primary Care had a duty in
      light of the doctor-patient relationship, Florida statutory and common
      law and pursuant to its own policies and procedures, to prevent
      disclosure of [appellant’s] confidential medical information without
      her specific, written consent.

      This duty required Baptist Primary Care to ensure that its employees
      were properly educated, trained, and supervised in the handling of
      such confidential, private, health information.

            21. Baptist Primary Care breached its duty to [appellant] in the
      following respects:

      a. Negligently failing to have in place and enforce adequate and
      appropriate policies and procedures to ensure the protection of the
      confidential, private, medical information of patients, particularly
      those patients with HIV, including [appellant];

      b. Negligently failing to provide adequate educational instruction to
      its employees as to the regulation and guidelines concerning
      disclosure of confidential, private, medical information of patients,
      especially those patients with HIV, including [appellant];

            22. As a direct and proximate result of the negligence of Baptist
      Primary Care as alleged herein, [appellant’s] confidential, private,
      medical information, was disclosed to members of the public without
      her consent.

             23. As a direct and proximate result of the negligence of Baptist
      Primary Care and the disclosure of her confidential, private, medical
      information, [appellant] suffered damages including mental anguish
      and emotional distress, embarrassment, and humiliation. These losses
      are permanent or continuing in nature and she will suffer them in the
      future.

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      In response to appellee’s motion to dismiss the Amended Complaint, the

trial court entered a non-final order in which it dismissed count I, finding appellant

had failed to state a cause of action under Florida’s common law right to privacy.

Nonetheless, it dismissed count I without prejudice and granted appellant twenty

days within which to amend the count. The trial court dismissed count II with

prejudice, however, finding the allegations sounded in medical negligence and

appellant failed to comply with the statute of limitations in section 95.11(4)(b),

Florida Statutes, and the pre-suit notice requirements in chapter 766, Florida

Statutes. Following entry of the order of dismissal, appellant allowed the twenty-

day window to amend count I to lapse and, instead, filed an appeal in this Court.

Because the appeal was premature, we exercised our discretion accorded by

Florida Rule of Appellate Procedure 9.110(l), and relinquished jurisdiction to the

trial court in order “to obtain a final appealable order from the lower tribunal.”

During the period of relinquished jurisdiction, appellee filed a second motion again

asking the court to dismiss count I, but adding a second ground urging the trial

court to dismiss the count as a sanction for appellant’s failure to amend it within

the twenty days granted by the court. In response, appellant filed a motion to strike

appellee’s motion to dismiss, stating: “It is the order granting the previous Motion

which needs to be amended.” On March 24, 2015, the trial court acquiesced in

appellee’s request and entered its final Order Dismissing with Prejudice Count I of

                                          5
Plaintiff’s Amended Complaint as a sanction, finding appellant “knowingly failed

to file an amendment to Count I of the Amended Complaint within the time the

court allotted,” and “offered no explanation on the record of this matter.” In light

of these findings, the trial court concluded “the record warrants dismissal with

prejudice of Count I of the Amended Complaint, there being no sanction less

severe which appears to be a viable alternative.” Appellant filed the foregoing

order in this Court, jurisdiction was at last properly invoked, and the parties filed

their respective briefs. We now turn to resolving the two points raised on appeal

by appellant.

                                        POINT I

      Despite the trial court’s explicit order dismissing count I with prejudice as a

sanction for appellant’s failure to amend the count, under Point I of her initial

brief, appellant completely ignores the ruling and, instead, addresses the merits of

the trial court’s initial order dismissing the count without prejudice for failing to

state a cause of action for which relief could be granted. Although, in its answer

brief, appellee argues at some length its position that the trial court did not abuse

its discretion in dismissing the count as a sanction, appellant chose not to file a

reply brief addressing that argument.

      Our exclusive duty as a court of appeal is “to determine whether the [lower

tribunal] made any ruling or conducted the proceedings in a manner contrary to

                                           6
established principles of law to the prejudice of the appellant.” Fla. Dep’t of

Corrections v. Bradley, 510 So. 2d 1122, 1124 (Fla. 1st DCA 1987) (quoting

Carolina Lumber Co. v. Daniel, 97 So. 2d 156, 158 (Fla. 1st DCA 1957)). In that

respect, the decision of the trial court enjoys a presumption of correctness and the

burden falls to the appellant to demonstrate error. Applegate v. Barnett Bank of

Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). “‘An appellant who presents no

argument as to why a trial court’s ruling is incorrect on an issue has abandoned the

issue[.]’” Davis v. State, 153 So. 3d 399, 400 (Fla. 1st DCA 2014). As the Fourth

District Court of Appeal observed:

      This Court will not depart from its dispassionate role and become an
      advocate by second guessing counsel and advancing for him theories
      and defenses which counsel either intentionally or unintentionally has
      chosen not to mention. It is the duty of counsel to prepare appellate
      briefs so as to acquaint the Court with the material facts, the points of
      law involved, and the legal arguments supporting the positions of the
      respective parties. See Estate of Barret, 137 So. 2d 587 (Fla. 1st DCA
      1962) and Clonts v. Spurway, 104 Fla. 340, 139 So. 896 (1932).
      When points, positions, facts and supporting authorities are omitted
      from the brief, a court is entitled to believe that such are waived,
      abandoned, or deemed by counsel to be unworthy. Again, it is not the
      function of the Court to rebrief an appeal. We basically work within
      the framework of the briefs although, admittedly, there are instances
      where errors are so glaring or fundamental that a court will adjudicate
      them on its own initiative in its original opinion.

Polyglot Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983)

(on motion for rehearing). See also City of Miami v. Steckloff, 111 So. 2d 446,

447 (Fla. 1959) (“[P]oints covered by a decree of the trial court will not be

                                         7
considered by an appellate court unless they are properly raised and discussed in

the briefs.”); Anheuser-Busch Co. v. Staples, 125 So. 3d 309, 312 (Fla. 1st DCA

2013) (holding an appellate court is “not at liberty to address issues that were not

raised by the parties”); David M. Dresdner, M.D., P.A. v. Charter Oaks Fire Ins.

Co., 972 So. 2d 275, 281 (Fla. 2d DCA 2008) (deeming any potential issue

pertaining to the final judgment for attorney’s fees and costs waived or abandoned

as no argument regarding the issue was made on appeal). The fact that appellant

raised her objection in her motion to strike appellee’s second motion to dismiss is

illuminating. It reveals appellant was clearly on notice of how the trial court might

rule in light of appellee’s alternative theory for the dismissal of count I. By her

failure to address that alternative basis in Point I of her initial brief, the trial court’s

final order as it relates to count I stands uncontested. In short, we hold that in light

of her silence on the singular reason why the trial court dismissed count I in its

final order, appellant has abandoned the argument for reversal. Consequently, we

affirm the dismissal of count I of appellant’s Amended Complaint.

                                        POINT II

        The trial court’s reasons for dismissing count II of the Amended Complaint

are twofold: (1) the count is barred by the two-year statute of limitations for

medical malpractice claims, and (2) appellant failed to comply with the mandatory




                                             8
pre-suit screening requirements found in chapter 766, Florida Statutes. Underlying

those reasons is the trial court’s finding that the allegations in count II

      raise issues of medical negligence, as the allegations arise out of the
      receiving of medical care and require proof that the alleged actions of
      [appellee] herein represented a breach of the prevailing professional
      standard of care in the hiring, training, supervision, or retention of
      [appellee’s] employee who divulged the information to her boyfriend.

(Emphasis added.) Under the trial court’s first reason for dismissing count II,

appellant was required to file her claim within the two-year statute of limitations

for medical malpractice claims, as dictated by sections 95.11(4)(b) and 766.106(4),

Florida Statutes.    The court, however, found more than two years had elapsed

between the last alleged disclosure by the employee, Melissa Cotton, and the filing

of the appellant’s lawsuit. Furthermore, the trial court ruled that appellant’s failure

to comply with the pre-suit screening requirements found in chapter 766, Florida

Statutes, was “fatal” to her medical malpractice claim.

      When evaluating a motion to dismiss for failure to state a cause of action,

      “‘the trial court must accept the allegations of the complaint as true.
      Likewise, the appellate court must accept the facts alleged in a
      complaint as true when reviewing an order that determines the
      sufficiency of the complaint. Whether a complaint is sufficient to
      state a cause of action is an issue of law. Consequently, a ruling on a
      motion to dismiss for failure to state a cause of action is reviewable on
      appeal by the de novo standard of review.’”

Locker v. United Pharm. Grp., Inc., 46 So. 3d 1126, 1128 (Fla. 1st DCA 2010)

(quoting Brewer v. Clerk of Cir. Ct., Gadsden Cnty., 720 So. 2d 602, 603 (Fla. 1st

                                            9
DCA1998), quoting Sarkis v. Pafford Oil Co., Inc., 697 So. 2d 524, 526 (Fla. 1st

DCA 1997)). Appellee’s motion to dismiss admitted all well-pleaded facts and all

reasonable inferences that arguably arose from those facts, and the trial court could

not look beyond the four corners of the complaint in deciding the motion. Stubbs

v. Plantation Gen. Hosp. Ltd. P’ship, 988 So. 2d 683, 684 (Fla. 4th DCA 2008).

      Applying these principles to the instant order of dismissal, our singular task

is to “‘decide from [the allegations] whether the claim arises out of the rendering

of, or the failure to render, medical care or services.’” Shands Teaching Hosp. &

Clinics, Inc. v. Estate of Ashley Lawson, 40 Fla. L. Weekly D2000, D2000 (Fla.

1st DCA Aug. 28, 2015) (quoting Baptist Hosp. of Fla., Inc. v. Ashe, 948 So. 2d

889, 890 (Fla. 1st DCA 2007)) (internal quotation marks omitted). We are mindful

in completing this task, however, of the Florida Supreme Court’s cautionary rule

expressed in Integrated Health Care Services, Inc. v. Lang-Redway, 840 So. 2d

974, 980 (Fla. 2002), wherein it emphasized that the provisions of chapter 766

“should be construed in a manner that favors access to courts.’” Id. (quoting Patry

v. Capps, 633 So. 2d 9, 13 (Fla. 1994)).

      As regards the application of the statute of limitations in sections 95.11(4)(b)

and 766.106(4), the supreme court in J.B. v. Sacred Heart Hospital of Pensacola,

635 So. 2d 945 (Fla. 1994), ruled the key inquiry is whether the action “‘aris[es]

out of any medical, dental, or surgical diagnosis, treatment, or care.’” Id. at 947

                                           10
(quoting § 95.11(4)(b), Fla. Stat.). If doubt exists over the applicability of the

statute, the supreme court held “the question is generally resolved in favor of the

claimant.” Id. In analyzing the statute of limitations issue in J.B., the supreme

court accorded the terms, “diagnosis,” “treatment,” and “care,” their ordinary

meanings:

      “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. 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.’ ‘Treatment’
      means ‘the action or manner of treating a patient medically or
      surgically.’ ‘Care’ means ‘provide for or attend to needs or perform
      necessary personal services (as for a patient or child).’ Likewise, in
      medical terms, ‘diagnosis’ means ‘[t]he determination of the nature of
      a disease.’ ‘Treatment’ means ‘[m]edical or surgical management of
      a patient.’ And ‘care’ means ‘the application of knowledge to the
      benefit of . . . [an] individual.’”

Id. at 948 (quoting Silva v. Sw. Fla. Blood Bank, Inc., 601 So. 2d 1184, 1187 (Fla.

1992)).

      In J.B., J.B.’s brother, L.B., an AIDS patient, was receiving treatment from

Sacred Heart Hospital in Pensacola, Florida. According to the allegations in the

complaint, the hospital was requested by its medical staff to have L.B. transferred

to another treatment facility in Alabama. Because social services were unable to

provide the necessary transportation by ambulance, J.B., a layman with no medical

                                        11
training, was contacted and agreed to drive L.B. to Alabama, all the while under

the impression that L.B. was suffering from Lyme’s Disease. L.B. was released to

J.B.’s care with a raging fever and a heparin lock in his arm. During the trip, L.B.

“‘began to thrash about and accidentally dislodged the dressing to his heparin lock

causing J.B. to reach over while driving in an attempt to prevent the lock from

coming out of L.B.’s arm.’” J.B., 635 So. 2d at 947 (quoting the allegations in the

complaint). In the process, J.B. came into contact with fluids seeping from around

the lock site.   J.B. subsequently contracted AIDS.      He sued the hospital for

negligence in arranging the transportation, “in that it knew of L.B.’s condition, the

level of care that would be required in transporting him, and the risk involved[.]”

Id.   The questions presented to the the supreme court were whether section

95.11(4)(b) applied to bar the action, and whether chapter 766 applied to the cause

of action. In deciding whether the statute of limitations in section 95.11(4)(b)

applied to defeat J.B.’s claim against the hospital, the supreme court concluded that

Silva v. Southwest Florida Blood Bank, Inc., was dispositive of the issue. It said:

      According to the allegations in J.B.’s complaint, at the time the
      Hospital contacted him to drive his brother to Alabama, J.B. had no
      medical condition for which he sought medical services at the
      Hospital. His injury arose solely through the Hospital’s use of him as
      a transporter. The simple question we must decide is whether this
      injury arose from the Hospital’s medical diagnosis, treatment, or care
      of J.B. Applying the law as set forth in Silva, we conclude that it did
      not. Accordingly, this suit is not a medical malpractice action for
      chapter 95 purposes and the two-year statute of limitations is
      inapplicable.
                                         12
Id. (emphasis added).

      As for the applicability of chapter 766, the supreme court read section

766.106(1)(a), Florida Statutes (defining a claim for medical negligence), and

section 766.202, Florida Statutes (defining “medical negligence” as “medical

malpractice”), “in conjunction” and concluded “chapter 766’s notice and presuit

screening requirements apply to claims that ‘aris[e] out of the rendering of, or the

failure to render, medical care or services.’”        Id. at 949 (citing section

766.106(1)(a)). Looking to the allegations in the complaint, the supreme court

noted J.B. claimed the hospital was negligent in using him to transport his brother.

It observed the complaint “does not allege that the Hospital was negligent in any

way in the rendering of, or the failure to render, medical care or services to J.B.”

Id. Accordingly, it concluded the complaint did not “state a medical malpractice

claim for chapter 766 purposes, and the notice and presuit screening requirements

[were] inapplicable.” Id.

      Applying the supreme court’s rationale expressed in J.B. to the Amended

Complaint in the present case, and taking as true the well-pleaded allegations set

forth therein, we conclude that appellant’s claimed injury allegedly caused by the

divulgence of medical information by appellee’s employee to third parties did not

stem from appellee’s provision of a medical diagnosis, treatment, or care to

appellant, but from simple negligence. See Bell v. Indian River Mem’l Hosp., 778
                                        13
So. 2d 1030, 1033-34 (Fla. 4th DCA 2001) (citing J.B.); Lynn v. Mount Sinai Med.

Ctr., Inc., 692 So. 2d 1002, 1003 (Fla. 3d DCA 1997) (explaining that “[m]erely

because a wrongful act occurs in a medical setting does not necessarily mean that it

involves medical malpractice,” and concluding “[t]he wrongful act must be directly

related to the improper application of medical services, and the use of professional

judgment or skill”); Liles v. P.I.A. Medfield, Inc., 681 So. 2d 711, 712 (Fla. 2d

DCA 1995) (holding “not every wrongful act by a health care provider amounts to

medical malpractice”); Stackhouse v. Emerson, 611 So. 2d 1365 (Fla. 5th DCA

1993) (ruling that a plaintiff was entitled to plead claims of intentional torts

unrelated to, or independent of, medical diagnosis, care or treatment).       Thus,

appellant’s complaint, likewise, does not state a cause of action for medical

malpractice, and neither the two-year statute of limitations period in section

95.11(4)(b), nor the pre-suit notice requirement in chapter 766 apply to defeat

appellant’s claim.

      We further conclude that our recent en banc decision in Shands Teaching

Hospital & Clinics, Inc. v. Estate of Ashley Lawson does not persuade us to hold

otherwise.   In Shands, the deceased patient had been receiving psychiatric

treatment from the hospital in a manner directly calculated to keep her in a locked

unit, which was “the service that Ms. Lawson’s condition allegedly required.” 40

Fla. L. Weekly at D2001 (emphasis in original). Thus, contrary to the explicit

                                        14
allegations in the complaint claiming the action was not one for medical

negligence, we stressed that courts “must look beyond legal labels urged by

plaintiffs and ‘must[] apply the law to the well-pleaded factual allegations and

decide the legal issue of whether the complaint sounds in simple or medical

negligence.’” Id. (quoting Dr. Navarro’s Vein Ctr. of Palm Beach, Inc. v. Miller,

22 So. 3d 776, 778 (Fla. 4th DCA 2009)). In contrast, in the present case, we are

presented with no “legal labels.” The alleged history of past medical treatment that

had been provided to appellant by appellee does not serve to define the alleged

negligent acts of appellee’s employee.

      This is not a case where “the factual allegations belie the conclusory legal

allegations.” Dr. Navarro’s Vein Ctr. of Palm Beach, Inc. v. Miller, 22 So. 3d at

778. Nor is it a case where the factual allegations suggest any “medical skill or

judgment” was exercised by appellee in training its employees not to disseminate

its patients’ medical conditions to the public.    Rather, we conclude this case

belongs to the category of cases recognized in Shands as not implicating medical

standards of care. See, e.g., Quintanilla v. Coral Gables Hosp., Inc., 941 So. 2d

468 (Fla. 3d DCA 2006) (involving the spilling of hot tea on a patient); Tenet St.

Mary’s Inc. v. Serratore, 869 So. 2d 729 (Fla. 4th DCA 2004) (considering the

allegation of the inadvertent kicking of a patient); Lake Shore Hosp., Inc. v.

Clarke, 768 So. 2d 1251 (Fla. 1st DCA 2000) (involving a slip and fall injury in the

                                         15
hospital); but cf. Palms W. Hosp. Ltd. P’ship v. Burns, 83 So. 3d 785 (Fla. 4th

DCA 2011), rev. dismissed, 139 So. 3d 867 (Fla. 2014) (holding the trial court

departed from the essential requirements of the law in denying the hospital’s

motion to dismiss where the choice of the hospital’s physicians not to treat the

plaintiff in the emergency room, which choice allegedly caused the plaintiff’s

death, called up the standard of care involved in the hospital’s evaluation and

treatment of the plaintiff and, therefore, the complaint stated a cause of action for

medical malpractice). As we stressed in Shands, in those situations presented in

the above-cited cases, “medical standards of care didn’t matter,” and “[j]urors

could resolve the negligence question by referring to common experience[.]” 40

Fla. L. Weekly at D2001. The same can be said of the instant case. Consequently,

we hold this is not a medical malpractice case and the trial court erred in

dismissing count II of the Amended Complaint.

      AFFIRMED, in part, REVERSED, in part, and REMANDED for further

proceedings consistent with this opinion.

OSTERHAUS and KELSEY, JJ., CONCUR.




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