>> HEAR YE, HEAR YE, HEAR YE, THE SUPREME COURT OF FLORIDA IS NOT IN SESSION. ALL WHO HAVE CAUSE TO PLEAD, DRAW NEAR, GIVE ATTENTION AND YOU SHALL BE

Transcription

1 >> HEAR YE, HEAR YE, HEAR YE, THE SUPREME COURT OF FLORIDA IS NOT IN SESSION. ALL WHO HAVE CAUSE TO PLEAD, DRAW NEAR, GIVE ATTENTION AND YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES, THE GREAT STATE OF FLORIDA AND THIS HONORABLE COURT. LADIES AND GENTLEMEN. THE SUPREME COURT OF FLORIDA. PLEASE BE SEATED. >> WELCOME TO THE FLORIDA SUPREME COURT. THE FIRST CASE OF THE DAY IS BURNS VERSUS PALMS WEST HOSPITAL. JUDGE PARIENTE IS EXCUSED. YOU MAY PROCEED. >> THANK YOU, YOUR HONOR. MAY IT PLEASE THE COURT. MY NAME IS ANDREW HARRISON ON BEHALF OF THE PLAINTIFF ALONG WITH ME IS MY CO-COUNSEL SCOTT DONALDSON. MAY I RESERVE FIVE MINUTES FOR REBUTTAL? THANK YOU, YOUR HONOR. TWO ISSUES THIS CASE ARISES YES FROM MEDICAL TREATMENT IN A HOSPITAL FACILITY BUT OUR CONTENTION ON THE FIRST POINT, THE MAIN POINT ON OUR APPEAL THIS IS NOT A CLAIM. THE CLAIMS ARE NOT FOR MEDICAL MALPRACTICE. THE CLAIMS AT ISSUE BEFORE THIS COURT ARE NEGLIGENT AND NEGLIGENT RETENTION -- >> BEFORE YOU GET INTO THE MERITS OF THE CASE, CAN WE TALK A LITTLE BIT ABOUT PETITION FOR WRIT OF CERTIORARI. HOW WAS IT THAT THE DISTRICT COURT OF APPEALS HAD, HOW WAS IT THAT WAS GRANTED? HOW IS CERTIORARI GRANTED IN THIS CASE? >> YES, YOUR HONOR. THAT LEADS TO OUR SECOND POINT

2 ON APPEAL. THE TRIAL COURT DENIED THE HOSPITAL DEFENDANTS MOTION TO DISMISS. ONE OF THE GROUNDS THEY RAISED WAS FAILURE TO COMPLY WITH, I DON'T KNOW -- >> WE COULD GET SOME HELP WITH THE SOUND SYSTEM. GO AHEAD. >> THANK YOU, YOUR HONOR. ONE OF THE GROUNDS RAISED IN MOTION TO DISMISS WAS THE FAILURE TO COMPLY WITH PRESUIT WHICH WE DID NOT. THEY FILED A PETITION, THE HOSPITAL DEFENDANT FILED OF COURSE A PETITION FOR WRIT OF CERTIORARI WHICH THE FOURTH DISTRICT COURT OF APPEAL GRANTED. OUR CONTENTION ON THAT SECOND POINT THE APPELLATE COURT, YES THEY STATED THERE WAS ESSENTIAL DEPARTURE FROM THE REQUIREMENTS OF THE LAW WHICH IS THE CORRECT STANDARD BUT THE FOURTH DISTRICT DID NOT ACTUALLY HAVE ANY BASIS, ANY AUTHORITY TO HAVE GRANTED THAT CERT. THIS COURT IN TWO RECENT CASES, SAN PERDIDO AND RODRIGUEZ AS WELL AS WILLIAMS VERSUS OKEN THE MESSAGE TO INTERMEDIATE DISTRICT COURTS OF APPEAL. CERTIORARI IS LIMITED. >> SAN PERDIDO AND RODRIGUEZ WERE BOTH SOVEREIGN IMMUNITY CASES, WERE THEY NOT? >> YES, YOUR HONOR, THEY ARE CERTAINLY SOVEREIGN IMMUNITY CASES. >> THERE IS SOME STRONG POLICY SUGGESTION THAT IS PERHAPS THE IN MEDICAL MALPRACTICE SETTINGS THAT THE EXPENSE OF LITIGATING THOSE CASES IS SO HIGH THAT PERHAPS IT IS BEST TO HANDLE THE ISSUE OF PRESUIT REQUIREMENTS OR PRESUIT SATISFACTION ON THE FRONT END AND HAVE THAT DECIDED

3 BEFORE WE JUMP INTO AND DO A TRIAL. HOW DO YOU RESPOND TO THAT? >> WELL, TWO POINTS, YOUR HONOR. FIRST SOVEREIGN IMMUNITY HAS VERY SIMILAR PUBLIC POLICY GROUND. WHICH IS VERY WHY CERTIORARI RELIEF IS AVAILABLE FOR SOVEREIGN IMMUNITY. IT MAKES NO SENSE TO REQUIRE LAW ENFORCEMENT TO THROUGH AND THEY SHOULD NOT HAVE TO SIT THROUGH A TRIAL TO WAIT FOR PLENARY APPEAL IF THE CASE SHOULD NEVER HAVE BEEN BROUGHT IN THE FIRST INSTANCE. IN THIS CASE, YES, THERE ARE SOUND PUBLIC POLICY REASONS. SO MEDICAL MALPRACTICE CASE THAT IS THAT SAME UNDERLYING PREMISE. ONE OF OUR CONTENTIONS HERE THOUGH THIS CASE COULD NOT HAVE BEEN A MEDICAL MALPRACTICE CASE. WE COULD NOT HAVE COMPLIED. I KNOW THE DEFENDANT SAYS THIS IS FALSE BUT, AND DISINGENUOUS. I HOPE I'M NOT TAKEN THAT WAY. WE DON'T THINK SO. THERE IS NO EXPERT TESTIMONY IN THIS CASE, THERE WILL BE NO, ON A MEDICAL MALPRACTICE STANDARD OF CARE. >> WAIT. THIS ONE SEEMS A LITTLE DIFFICULT TO ME. AS YOU'RE TRYING TO PARSE OUT THE RETENTION ISSUE. IT WOULD COME TO THE HOSPITAL, WHO WOULD KNOT. DON'T YOU HAVE TO CROSS AN INITIAL THRESHOLD OF EVIDENCE, SOME KIND OF EVIDENCE IN THE CASE SUCH AS THIS THAT IT IS NECESSARY TO CALL IN EXPERT AND THAT, SOME WAY THAT'S THE KIND OF TREATING SPECIALIST ONE HAD TO HAVE. THOUGH DOES IT NOT IN SOME, SOME WAY TOUCH UPON RELEVANT MEDICAL

4 STANDARDS? >> TWO POINTS, YOUR HONOR. FIRST THE ESSENCE OF THIS CASE IS NOT MEDICAL. CERTAINLY THERE ARE -- >> NO, I UNDERSTAND YOU CAN SAY THAT UNTIL YOU'RE BLUE IN THE FACE BUT THE QUESTION IS, LET ME MAKE SURE I UNDERSTAND. I UNDERSTAND YOU'RE SAYING THIS HOSPITAL IS RESPONSIBLE BECAUSE THEY DID NOT HAVE DOCTORS WHO WOULD RESPOND TO THIS PATIENT? >> IT IS NOT JUST THAT THEY DIDN'T HAVE DOCTORS. THE POLICY WAS PUT IN PLACE -- >> THEY HAD DOCTORS AND THEY WOULDN'T COME FOR WHATEVER REASON, WHETHER IT IS NO INSURANCE OR WHATEVER. I MEAN, IT'S A SHAME THAT THIS KIND OF SITUATION ARISES BUT IT IS SOMETHING TO DO WITH DOCTORS NOT COMING TO THE HOSPITAL TO TREAT THIS PERSON, ISN'T IT? >> IT IS. I'M NOT GOING, CERTAINLY YOUR HONOR, I DON'T TO SHY AWAY FROM QUESTION BUT I KNOW YOUR INITIAL POINT WAS THE NECESSITY OF MEDICAL TREATMENT. I DON'T THINK THAT IS IN DISPUTE HERE AT ALL. THEY CONTACTED SIX EMERGENCY ROOM PHYSICIANS AND >> THAT IS NOT QUESTION IN DISPUTE. THE QUESTION IS WHETHER YOU PRESENT EVIDENCE TO A JURY. LET'S ASSUME I GO INTO THE JURY TRIAL AND THIS DEFENDANT JUST DENIED EVERYTHING AND YOU PROVE ONLY THAT THESE DOCTORS DIDN'T SHOW UP. SO WHAT? >> TWO THINGS. WE HAVEN'T TAKEN ANY TESTIMONY IN THIS CASE SO OF COURSE IT'S A MOTION -- >> YOU'RE SAYING THAT HAS

5 NOTHING TO DO AND ALL I'M SUGGESTING THIS IS ONE OF THOSE DIFFICULT CASE THAT IS ALTHOUGH YOU HAVE THAT NUANCE IT DOES TOUCH UPON THE RENDITION OF MEDICAL CARE AND THAT'S WHAT I'M STRUGGLING WITH. >> OKAY. I DIDN'T, IN TERMS OF THE -- >> NOT A SLIP AND FALL CASE. >> IT IS NOT A SLIP AND FALL CASE BUT IN TERMS OF THE NECESSITY FOR MEDICAL CARE THE QUESTION FOR MEDICAL MALPRACTICES IS THE STANDARD OF CARE. NOT THAT THERE IS A NEED FOR -- >> LET ME ASK YOU A QUESTION ABOUT THE STATUTE. IN PARTICULAR SECTION MORE PARTICULARLY SUBSECTION 7 OF NOW THERE IT SAYS, IN A MEDICAL NEGLIGENCE ACTION AGAINST A HOSPITAL OR A HEALTH CARE FACILITY OR MEDICAL FACILITY, A PERSON MAY GIVE EXPERT TESTIMONY ON THE APPROPRIATE STANDARD OF CARE AS TO ADMINISTRATIVE OR OTHER NON-CLINICAL ISSUES. WHY DOESN'T THAT PROVISION OF THE STATUTE FUNDAMENTALLY UNDERMINE THE DISTINCTION ON WHICH YOU'RE RELYING? >> A COUPLE OF POINTS. NUMBER ONE, THE EXPERT TESTIMONY IN THIS CASE, IT'S ABOUT HOSPITAL ADMINISTRATION. IT IS NOT ABOUT MEDICAL TREATMENT. SO YET -- >> I UNDERSTAND THAT BUT THAT DISTINCTION DOES NOT SEEM TO FIT, DOES NOT SEEM TO BE CONSISTENT WITH WHAT THE STATUTE SAYS WHICH, WHEN THE STATUTE EXPLICITLY RECOGNIZES THE EXPERT TESTIMONY IN A MEDICAL NEGLIGENCE ACTION AGAINST A HOSPITAL, MAY BE GIVEN WITH

6 RESPECT TO THE APPROPRIATE STANDARD OF CARE AS TO AN ADMINISTRATIVE ISSUE. >> I UNDERSTAND THAT AS TO THE ADMINISTRATIVE ISSUE. DOES NOT SAY AS TO THE ADMINISTRATIVE STANDARD OF CARE. THERE ARE CERTAINLY ADMINISTRATIVE ISSUES CAN ARISE IN A MEDICAL MALPRACTICE SETTING. I'M NOT TRYING TO REMOVE THAT FROM THIS CASE. THIS CASE IS NOT ABOUT A MEDICAL STANDARD OF CARE. IT IS -- >> LET ME SEE IF I CAN ASK THIS IN A DIFFERENT WAY. WHAT THEN DO YOU CONTEND ARE THE ELEMENTS THAT YOU WOULD HAVE TO PROVE IN THIS NEGLIGENT RETENTION? WHAT ARE THE ELEMENTS YOU WOULD HAVE TO SHOW TO THE COURT IN ORDER TO PREVAIL? >> WELL WE DO HAVE TO SHOW THERE WAS A DUTY, THERE IS A DUTY OF CARE. >> A DUTY OF CARE, OKAY. >> WE HAVE TO SHOW THERE WAS A STANDARD OF CARE WAS BREACHED AND CAUSATION, THE ELEMENTS OF A NEGLIGENCE CASE. >> WHAT WOULD BE THAT DUTY OF CARE? >> THE DUTY OF CARE WAS TO PROVIDE MEDICAL TREATMENT. THAT IS THE DUTY OF CARE. I UNDERSTAND THAT. I'M NOT TRYING TO SHY AWAY FROM THAT. >> PROVE CAUSATION? >> WHAT'S THAT? >> HOW DO YOU PROVE CAUSATION? >> WE HAVE TO PROVE CAUSATION THAT THE DELAY IN TREATMENT ACTUALLY PLAYED A ROLE IN THE DECEDENT'S DEATH. THE CAUSATION. >> WILL YOU HAVE MEDICAL

7 TESTIMONY IN REGARD TO THAT? >> WE DO NEED MEDICAL TESTIMONY FOR THAT. I'M NOT SOMETHING THAT CAN BE GIVEN BY WAY FOR DAMAGES. THE STANDARD OF CARE IS THE ONLY ISSUE FOR DETERMINING WHETHER A CASE IS MEDICAL MALPRACTICE. IT IS NOT DUTY. IT'S NOT CAUSATION. IT IS ONLY STANDARD OF CARE. IS THE STANDARD OF CARE IN THE CASE MEDICAL OR IS IT SOMETHING ELSE, NON-MEDICAL. IN THIS CASE WE SAY IT IS ADMINISTRATIVE. WE SAY IT IS BUSINESS. THAT IS WHAT THE CASE LAW FROM ALL DISTRICTS COURTS OF APPEAL HAVE FOUND, THIS COURT, I KNOW A DIFFERENT SET OF FACTS BUT A DIFFERENT STATUTE THAT WHAT IS STAY IT THE STATED IN THE LAW IS LANG-REDWAY. THE STANDARD OF CARE IN THIS WAYS AND I DON'T MEAN TO BEAT IT AROUND 100 TIMES I KNOW YOUR HONORS UNDERSTAND THIS, IT IS BASED ON ADMINISTRATIVE ACTIONS MADE BY THIS HOSPITAL. THIS IS NOT THE COMPETENCY OF THESE PHYSICIANS TO PERFORM THIS CARE. >> SO YOU HAVE TO SHOW THEN IN THIS NEGLIGENT RETENTION CASE THAT THERE WAS SOMETHING THAT WOULD HAVE BEEN DONE AND, BUT FOR THE FACT THAT THESE PHYSICIANS DID NOT SHOW UP AT THIS, WHATEVER HAPPENED TO THE PLAINTIFF HAPPENED? >> WELL, THESE PHYSICIANS OR, YES, A MEDICAL PHYSICIAN HAD TO GIVE THAT TREATMENT. BECAUSE WE WOULD NOT HAVE ANY DAMAGES. IT'S A COMMON LAW CLAIM AND I'M NOT GOING TO DENY THAT. THAT IS, THAT IS THE CASE TO PROVE DAMAGES.

8 WE HAVE TO SHOW CAUSATION ELEMENT, IT IS -- >> SO IN ORDER TO SHOW THAT THERE WERE DAMAGES, DON'T YOU NEED A MEDICAL EXPERT TO SAY, THERE IS THIS TREATMENT AVAILABLE AND BUT FOR NOT GETTING THIS TREATMENT THIS PLAINTIFF WOULD NOT HAVE SUFFERED THIS INJURY? >> YES, BECAUSE WE OTHERWISE WOULD HAVE NO DAMAGES. THAT'S CORRECT. >> AND SO YOU DON'T HAVE TO, BUT YOUR CONTENTION THEN YOU DON'T HAVE TO GET SOMEONE WHO IS GOING TO SAY THAT PRESUIT? >> YEAH BECAUSE IT IS NOT RELEVANT TO A MEDICAL MALPRACTICE CLAIM BECAUSE THE ONLY THING TO CONSIDER IS STANDARD OF CARE IN THE CASE. THOSE MEDICAL EXPERTS PLAY A ROLE IN THE CASE BUT THAT PRESUIT IS ONLY REQUIRED FOR A MEDICAL MALPRACTICE OR MEDICAL NEGLIGENCE CASE. AND WHICH PLAYS TO, WHICH TIES TO STANDARD OF CARE. IN EVERY TYPE OF SCENARIO WHICH IS OUTSIDE MEDICAL NEGLIGENCE NECESSARILY. >> SO LET ME SEE IF I UNDERSTAND YOUR ARGUMENT THEN. BECAUSE THERE WAS NO CARE ACTUALLY GIVEN IN THIS PARTICULAR CASE, THAT IS NOT AN ELEMENT THAT WE, YOU HAVE TO DEMONSTRATE, IT DOESN'T FALL UNDER MEDICAL MALPRACTICE PRESUIT REQUIREMENTS? >> NOT JUST THAT THERE WASN'T ANY CARE, THERE WAS ADMINISTRATIVE POLICY PUT INTO PLACE TO GUARANTY THERE WOULD BE NO CARE. THIS IS ABOUT THE ADMINISTRATION. IT IS NOT ABOUT THOSE DOCTORS. >> EXCUSE ME. DID YOU SAY THAT, IS THIS YOUR

9 CLAIM FOR MEDICAL NEGLIGENCE? >> I'M SORRY. >> IS THIS A CLAIM FOR MEDICAL NEGLIGENCE? >> NO, WE DID NOT BRING, THAT IS OUR CONTENTION THAT IT IS NOT A CLAIM FOR MEDICAL NEGLIGENCE. >> WELL UNDER STATUTE ON THE DEFINITIONS OF SUB 1-A CLAIM FOR MEDICAL NEGLIGENCE OR CLAIM FOR MEDICAL MALPRACTICE A CLAIM ARISING OUT RENDERING OR, A FAILURE TO RENDER MEDICAL CARE SERVICES. WOULDN'T THAT KIND FALL INTO THAT DEFINITION? >> WELL THE DEFENDANT RELIES ON AN INSURANCE CASE FOR A BROAD, FOR -- >> TALKING ABOUT THE STATUTE. >> RIGHT. BUT FOR WHAT ARISING OUT OF MEANS IS WHAT I'M SAYING. THEY'RE TAKING ARISING OUT OF AND SAYING IF THERE IS ANY MEDICAL TREATMENT OR A LACK OF MEDICAL TREATMENT, YOU APPLY THE INSURANCE, THE INTERPRETATION OF AN INSURANCE CONTRACT. AND YES, THERE WAS A FAILURE TO PROVIDE MEDICAL TREATMENT BUT THE STANDARD, THE REASON WHY THERE WAS A FAILURE TO PROVIDE THAT MEDICAL TREATMENT HAD NOTHING TO DO WITH MEDICINE AT YOU WILL. >> I KNOW BUT, IN ORDER TO PROVE THE UNDERLYING POINT AS HAS BEEN SAID EARLIER, WOULDN'T YOU HAVE TO HAVE MEDICAL EXPERTS TO DETERMINE CAUSATION AND -- >> YOU DO. BUT I GAVE AN EXAMPLE. I GAVE AN EXAMPLE IN A CAR ACCIDENT CASE, A SURGERY, A POST ACCIDENT SURGERY. MEDICAL EXPERTS COME INTO A CASE TO TESTIFY ABOUT CAUSATION TO SHOW THAT THE PLAINTIFF'S SURGERY IS CAUSALLY RELATED TO A

10 CAR ACCIDENT. I UNDERSTAND THAT IS A DIFFERENT SCENARIO. I UNDERSTAND THAT BUT IT SHOWS THAT MEDICAL EXPERTS COME INTO NON-MEDICAL MALPRACTICE CASES ALL THE TIME. THAT DOESN'T MAKE THEM MEDICAL MALPRACTICE CASES. CAUSATION AND DUTY ARE SEPARATE ISSUES, I MEAN THAT IS OUR CONTENTION THE ONLY ISSUE, I KNOW I SAID IT PROBABLY A DOZEN TIMES UP HERE BUT THE ONLY ISSUE IS STANDARD OF CARE AND THE FOLKS WHO ARE RELEVANT TO THAT ISSUE ARE ADMINISTRATORS, FOLKS, THAT WE CONTEND, THAT IS THE WAY FOR US TO PROVE THIS CASE, IS A HOSPITAL ADMINISTRATOR TO TALK ABOUT A HOSPITAL POLICY FOR FULFILLING ITS OBLIGATIONS WHICH IT PROMISED TO PROVIDE MEDICAL CARE. >> ARE HOSPITALS THAT HAVE EMERGENCY ROOMS, ARE THEY TO REQUIRED BY LAW TO ACCEPT PATIENTS COMING IN WHO ARE IN DIRE NEED OF MEDICAL ASSISTANCE? >> THEY ARE, YES. >> SO, LET'S SAY I HAD A HEART ATTACK OR SHOT OR SOMETHING LIKE THAT, A CAR ACCIDENT, THEY CAN'T REJECT ME BECAUSE I HAVE NO INSURANCE? >> CORRECT, YES, YOUR HONOR. >> SO WOULDN'T THE STANDARD OF CARE REQUIRE SUCH HOSPITALS TO HAVE ON CALL EXPERTS THAT COME IN WHEN THEY'RE NEEDED TO ASSIST SOMEBODY, ASSIST SOMEBODY WHO NEEDS THEIR HELP? >> NO, THAT IS ACTUALLY A SEPARATE ISSUE. THEY HAVE AN OBLIGATION TO PROVIDE THAT INITIAL EMERGENCY ROOM CARE. IN THIS CASE THE ALLEGATION -- >> WHAT IF THE INITIAL EMERGENCY ROOM CARE WOULD REQUIRE A

11 NEUROSURGEON TO COME IN AND DO BRAIN SURGERY? AREN'T THEY REQUIRED TO HAVE NEUROSURGEONS ON CALL THAT WILL TAKE CASES FROM FOLKS WHO HAVE NO INSURANCE OR CAN'T PAY? >> IT DEPENDS UPON THE ARRANGEMENT WITH THE STATE OF FLORIDA. IN THIS CASE THE NEED WAS GASTROENTEROLOGY CARE AND THE HOSPITAL HAD PROMISED CONTRACTUALLY WITH THE STATE. IT IS A FORM WHICH WAS ATTACHED TO OUR COMPLAINT TO PROVIDE 24 AND SEVEN CARE IN THAT FIELD. THE BOX SHOWS, MAY BE 25 AREAS, THERE ARE HOSPITALS IN THIS STATE, EMERGENCY ROOMS MAY NOT HAVE NEUROSURGERY DEPARTMENTS AT ALL, AT LEAST THAT IS MY UNDERSTANDING BUT THE ISSUE HERE WAS THE NEED, THAT THERE WAS A NEED FOR GASTROENTEROLOGY CARE AND THAT IS IN THE COMPLAINT AND THAT HASN'T BEEN DENIED THIS CASE. BUT THE ISSUE IS THE HOSPITAL PROMISED THAT CARE AND THEY KNEW IT COULD NOT BE PROVIDED BECAUSE OF CIRCUMSTANCES PRIOR TO THIS INCIDENT WHICH HAD NOTHING TO DO WITH MEDICINE. THEY HAD A PRIOR INCIDENT WHICH WAS UNDER THE EXACT SAME CIRCUMSTANCES AND THE POINT OF THAT INCIDENT IS THAT THE POLICY THAT WAS PUT IN PLACE DURING THAT MONTH, THAT MONTH GAP PERIOD OF TIME, THEY KNEW THEY COULDN'T PROVIDE THAT TREATMENT AT ALL. SO THEY HAD PROMISED TO PROVIDE THAT TREATMENT AND THEY KNEW THEY COULDN'T PROVIDE IT BECAUSE OF NON-MEDICAL REASONS, WHETHER IT IS ECONOMIC OR, IT DOESN'T MATTER FOR PURPOSES OF -- >> DEVIATION FROM THE STANDARD OF CARE, MAKING A MEDICAL

12 MALPRACTICE CASE? >> BUT THE DEVIATION IS THE ADMINISTRATIVE STANDARD OF CARE BECAUSE THE HOSPITAL PUT INTO PLACE ADMINISTRATIVE POLICIES. THIS WAS A CEO POLICY OR WHOEVER IN THE POLICY PUT IN A POLICY. WE'RE NOT GOING TO RETAIN DOCTORS AT ALL, TO FULFILL THIS TREATMENT, TO PROVIDE THE EMERGENCY ROOM CARE. THOSE WERE NOT MEDICAL DECISIONS. THAT WASN'T BECAUSE THEY VIEWED DOCTORS, THEY COULDN'T, AT LEAST ON THE RECORD BEFORE THIS COURT WHICH I UNDERSTAND IS LIMITED, THAT IT WASN'T BASED ON MEDICAL COMPETENCY. IT WASN'T BASED ON WE'VE EXAMINED THE UNIVERSITY OF FLORIDA MEDICAL SCHOOL PROGRAM. WE CAN'T FIND -- >> HAVEN'T WE UPHELD A CASE WHERE IT WAS RULED THAT THE MEDICAL MALPRACTICE, WHERE THE PATIENT, WHILE BEING TRANSFERRED TO THE ROOM, TO SOMEPLACE ELSE, IN THE HOSPITAL, FELL OFF THE GURNEY AND WAS INJURED? WASN'T THAT MEDICAL MALPRACTICE? >> YES, THERE ARE CASES, YES. >> I MEAN, BEING TRANSFERRED FROM ONE ROOM TO THE OTHER, I DON'T SEE ANY MEDICAL PROCEDURES BEING DONE. >> WHAT THE COURTS HAVE SAID THE KEY ISSUE THERE THERE WAS MEDICAL JUDGMENT AND SKILL. THOSE CASES, BECAUSE YOU HAVE WHEN THEY SLIP AND FALL, THEY ARE NOT RESTRAINED, BASED ON THE MEDICAL CONDITION. SO WHAT THE COURTS HAVE SAID IS THE ESSENCE OF THIS CLAIM IS, THE CHALLENGE, IT IS MEDICAL JUDGMENT AND SKILL IN THAT ACT. THAT IS WHAT THE COURTS HAVE REASONABLY DISTINGUISHED BETWEEN SLIP AND FALLS IN HOSPITALS, AND

13 PERSON WHO COPS TO THE HOSPITAL VERSUS A PATIENT WITH EXCESSIVE MAMMOGRAPHIC CALIBRATION OR SOMEONE WHO SHOULD BE RESTRAINED, OR DOESN'T GET A DIET, THOSE KIND OF CASES ARE BASED ON MEDICAL JUDGMENT AND MEDICAL SKILL WHICH DIRECTLY TIES INTO THE MEDICAL STANDARD OF CARE AND THE DECISIONS HERE HAD NOTHING TO DO WITH MEDICINE IN TERMS OF WHAT THE STANDARD OF CARE IS IN THIS CASE. THE STANDARD OF CARE IN THOSE CASES WITH THE MEDICAL JUDGMENT IN TAKING THIS PATIENT WHO WAS NOT WELL-EQUIPPED TO WALK FROM POINT A TO POINT B IN THE HOSPITAL BASED ON HIS MEDICAL CONDITION. WE DON'T HAVE, WE'RE NOT CHALLENGING THE TRANSFER PROCESS FROM THE HOSPITAL HERE TO THE EVENTUAL HOSPITAL. IT IS THE FACT THAT THE PROCESS THAT WAS PUT IN PLACE WAS, WAS AN ESSENTIAL NULLITY BECAUSE OF THE SIX DOCTORS AND THE HOSPITAL THAT IS, THAT THEY HAD, THEY SHOULD HAVE HAD ARRANGEMENTS WITH BUT DID NOT BECAUSE OF BUSINESS REASONS. >> YOU'RE DEEP INTO YOUR REBUTTAL TIME. >> THANK YOU VERY MUCH, YOUR HONOR. >> MAY IT PLEASE THE COURT. I'M MARK HICKS. I REPRESENT PALMS WEST. I WOULD LIKE TO START OUT TALKING ABOUT WHAT JUSTICE CANADY JUST SAID A MOMENT AGO. BACK IN BEFORE 2003 THERE WERE SOME ADMINISTRATIVE MATTERS THAT WERE DEEMED OUTSIDE OF MEDICAL MALPRACTICE. THERE WAS A COUPLE OF CASES ON THAT. THEN IN 2003 THE LEGISLATURE CHANGED THE STATUTE AND PUT IN

14 SECTION 7. AND SECTION 7 SAID THIS IS JUST FOR HOSPITALS, HEALTH CARE FACILITIES AND MEDICAL FACILITIES, NO ONE ELSE. NOT HMOs, NO ONE ELSE. THEY SAID IN A MEDICAL MALPRACTICE CASE AGAINST THE HOSPITAL, YOU CAN HAVE EXPERT TESTIMONY, I'M PARAPHRASING, ON STANDARD OF CARE INVOLVED, STANDARD OF CARE SPECIFICALLY IN THE STATUTE INVOLVING ADMINISTRATIVE MATTERS AND NON-CLINICAL MATTERS. NOW YOU LOOK, YOU LOOK AT THAT AND GO OVER TO THE DEFINITION OF A MEDICAL EXPERT. AND IT SAYS, AND THAT'S IN SECTION, THIS IS FOR THE PRESUIT AFFIDAVIT, SAYS THE MEDICAL EXPERT BASICALLY IS ANY PERSON LISTED IN WITHOUT QUALIFICATION AS SECTION 5 DOCTORS AS MEDICAL EXPERTS AND SECTION 7. PEOPLE THAT WILL TESTIFY ABOUT THE HEALTH CARE PROVIDER'S RESPONSIBILITIES AND STANDARD OF CARE IN ADMINISTRATIVE, NON-CLINICAL CONTEXT. SO LONG AS THE UNDERLYING CASE IS A MEDICAL MALPRACTICE CASE. THAT IS THE POINT. IT STARTS OFF WITH MEDICAL MALPRACTICE CASE. WELL THEY HAVE CONCEDED THAT THE UNDERLYING CASE IN THIS CASE IS A MEDICAL MALPRACTICE CASE. THAT IS, YOU HAD A EVALUATION -- >> IT'S A MEDICAL MALPRACTICE, WE'RE BACK TO EXPLAINING IT. BUT IT'S A MEDICAL MALPRACTICE CASE HOW WHEN THERE REALLY WAS NO PRACTICE THAT WAS DONE, THEY DIDN'T DO ANYTHING? >> YOUR HONOR, THE STATUTE SPECIFICALLY COVERS THE FAILURE TO PROVIDE MEDICAL CARE AND SERVICES.

15 SO WHAT WE HAVE HERE IS SOMEONE COMES INTO THE EMERGENCY ROOM. THERE'S A FULL EVALUATION. SOMEONE THEN DETERMINES IN THE EMERGENCY ROOM THAT A GASTROENTEROLOGIST IS NEEDED. THEY CALL ONE AFTER THE OTHER, EXPLAIN THE SITUATION. NEED YOU TO COME IN. THESE ARE UNDISPUTED ALLEGATIONS IN THE COMPLAINT. WE DON'T NEED TO WEIGH EVIDENCE OR ANYTHING ELSE. WE HAVE TO ACCEPT THE COMPLAINT IS TRUE FOR THIS PURPOSE. EACH ONE OF THEM IS CALLED AND THEY REFUSE TO COME IN AND NOW -- >> REFUSAL TO COME IN, BASED ON SOME KIND OF A HOSPITAL POLICY? THAT'S WHAT I THOUGHT HE WAS -- >> THEY ARE TRYING TO MAKE IT SOUND THAT WAY NOW BUT HERE'S WHAT HAPPENED. THEY HAVE ALLEGED, THROUGHOUT THEIR AMENDED COMPLAINT THIS IS A, THEIR EMERGENCY MEDICAL SERVICES PROVIDED AND THEY SAID, ABOUT THE HOSPITAL IS, 30 DAYS EARLIER THEY REFUSED TO COME IN ALSO AND NO ONE DID ANYTHING. WELL THAT, THAT IS JUST A BREACH OF DUTY. THAT IS NEGLIGENCE ON THE PART OF THE HOSPITAL TO HAVE ALLOWED IT 30 DAYS EARLIER IF THEY DID, IN A EMERGENCY SITUATION WITH ANOTHER PATIENT AND THEN THEY ALLOWED THAT MONTH TO GO BY, THAT IS NOT LIKE VOTING ON A PROCEDURE. THAT IS LIKE, YOU KNOW, THEY KNEW OR SHOULD HAVE KNOWN THESE DOCTORS MAY HAVE NOT COME IN AND SHOULD HAVE TERMINATED. THAT IS CLASSIC NEGLIGENT RETENTION, NEGLIGENT SUPERVISION AND THAT IS ALL SUBSUMED WITHIN MEDICAL MALPRACTICE. IF I'M A HOSPITAL AND I'M SUED

16 FOR NEGLIGENT RETENTION AND SUPERVISION OF MY STAFF AND I KNOW THAT MY DOCTORS ON A PARTICULAR DAY DIDN'T COME IN, THEN I SHOULD MAKE SURE THAT THEY COME IN THE NEXT TIME OR FIRE THEM, CORRECT? SO NOW WHAT WE DO, WE FAST FORWARD TO OUR CASE. AND OUR EMERGENCY ROOM EVALUATED THE PATIENT, CALLED THE DOCTORS AND THEY DIDN'T COME IN. AND THAT IS THE BASIS OF THIS LAWSUIT, THE FAILURE TO PROVIDE MEDICAL CARE BY THE DOCTORS. IT IS ABSOLUTELY CRITICAL FOR THE NEGLIGENT RETENTION CASE THAT THEY PROVE THAT UNDERLYING NEGLIGENCE CASE. >> LET ME SEE IF I UNDERSTAND WHAT YOU JUST SAID. THE DOCTOR, THE HOSPITAL HAS CERTAIN GASTROENTEROLOGISTS ON CALL. THEY WERE CALLED AT 30 DAYS BEFORE THIS INCIDENT AND NONE OF THEM WOULD COME IN? >> I'M NOT SURE IT WAS GASTROENTEROLOGISTS. SOMEONE WAS CALLED 30 DAYS EARLIER IN ANOTHER CONTEXT WITH ANOTHER PATIENT. >> LET'S ASSUME THAT IT WAS GASTROENTEROLOGISTS WERE CALLED AND THEY WOULD NOT COME IN. AND THEN ON THIS INCIDENT, AGAIN YOU NEED A GASTROENTEROLOGIST, SAME ONES STILL ON CALL FOR THE HOSPITAL WERE CALLED AND DID NOT COME IN. >> CORRECT. >> THAT IS THE BASIS OF THIS LAWSUIT. THAT THE HOSPITAL WAS ON NOTICE THAT THESE GASTROENTEROLOGISTS WOULD NOT COME IN WHEN CALLED? >> THAT IS, THAT IS WHY -- >> NEGLIGENT RETENTION. >> NEGLIGENT RETENTION.

17 I'M STILL STRUGGLING WITH HERE HOW THIS IS A MEDICAL MALPRACTICE. >> OKAY. LET ME TRY TO EXPLAIN IT. THE STATUTE, , REQUIRES SUPERVISION OF, BY THE HOSPITAL OF THE MEDICAL STAFF. REQUIRES CREDENTIALING, REQUIRES RETENTION ISSUES. SO THEY ARE REQUIRED TO DO THAT BY LAW. NOW YOU CAN NEVER HAVE A NEGLIGENT RETENTION CASE IN MEDICINE UNLESS THERE'S AN UNDERLYING MALPRACTICE CASE. IT'S NOT POSSIBLE, I MEAN UNLESS YOU'RE GOING TO TAKE IT COMPLETELY OUT OF MALPRACTICE LIKE A RAPE OR SOMETHING LIKE THAT, WHICH ISN'T INVOLVED IN THIS CASE. THAT WOULD JUST BE A CRIME BEING COMMITTED IN THE HOSPITAL. BUT IF YOU TAKE IT IN A MEDICAL SETTING WHICH THEY HAVE ADMITTED THE UNDERLYING MATTER IS A MEDICAL MALPRACTICE CASE. >> IF THE UNDERLYING ISSUE IS MEDICAL MALPRACTICE, COULD THIS PLAINTIFF HAVE BROUGHT A CLAIM OF MEDICAL MALPRACTICE AGAINST THESE DOCTORS WHO DID NOT COME IN? >> YES. ABSOLUTELY. >> AND CASE OF MEDICAL MALPRACTICE WOULD HAVE BEEN, YOU WERE ON CALL AT THIS HOSPITAL AND YOUR FAILURE TO COME IN WHEN CALLED RESULTED IN THESE INJURIES? >> ABSOLUTELY, ABSOLUTELY. AND THEN ONCE YOU ESTABLISH THAT THIS IS A MEDICAL CASE AND YOU LOOK AT THE HOSPITAL'S LIABILITY ON RETENTION AND YOU GO TO THE STATUTE AND THE STATUTE SPECIFICALLY ALLOWS TESTIMONY BY AN EXPERT ON MATTERS OF ADMINISTRATIVE MATTERS AND ALSO

18 NON-CLINICAL MATTERS. AND THAT IS PRECISELY FITS AND IS INCORPORATED INTO THE DEFINITION OF A MEDICAL EXPERT FOR PURPOSES OF THIS STATUTE. SO, WHEN MY OPPONENT SAYS LOOK, THE WHOLE ISSUE OF STANDARD OF CARE. WELL IT IS ALL SOLVED BY THE STATUTE ITSELF. NOW, I MEAN IT SEEMS TO ME IT'S THAT STRAIGHTFORWARD. IF THE UNDERLYING A CASE IS A MEDICAL NEGLIGENCE CASE WHICH THIS IS, THEY HAVE ADMITTED IT, AGAINST THE PHYSICIANS, THEN A RETENTION OF THAT PHYSICIAN OR A SUPERVISION OF THAT OR THE FAILURE THEREOF BY US BECAUSE WE MAY HAVE KNOWN IT A MONTH EARLIER -- >> WAS THAT A ISSUE, WAS THERE A CLAIM OF MEDICAL MALPRACTICE BROUGHT? >> YES. WELL, THEIR PROBLEM IN THIS CASE TRUTHFULLY IS THAT THE STATUTE OF LIMITATIONS ON MEDICAL MALPRACTICE HAS RUN. SO THEY'RE LOOKING FOR A WAY TO SUE SOMEONE AND THEY'RE TRYING TO GO OUTSIDE OF MEDICAL MALPRACTICE TO DEVELOP A CASE THAT WOULD TAKE A FOUR-YEAR STATUTE OF LIMITATIONS. THAT IS MY SURMISE. THAT IS NOTHING NECESSARILY BEEN DECIDED BY ANY JUDGE BELOW BUT THAT IS THE PLAIN FACT OF THE CASE. THERE IS A STATUTE PROBLEM. >> I WANT TO SWITCH GEARS JUST A LITTLE BIT BECAUSE I HAVE SOME QUESTIONS ABOUT THE, LET ME MOVE THIS OVER, ABOUT THE FOURTH DISTRICT COURT APPEALS TO GRANT CERTIORARI IN THIS CASE. WE HAVE HELD IN OKEN THREE ELEMENTS MUST BE MET BEFORE A DISTRICT COURT MAY GRANT

19 CERTIORARI JURISDICTION ON A DENIAL OF A MOTION TO DISMISS. IN THIS CASE YOU FILED A MOTION TO DISMISS OR YOUR CLIENT FILED A MOTION TO DISMISS AT THE TRIAL LEVEL. THE TRIAL JUDGE DENIED THE MOTION TO DISMISS. IN YOUR PETITION THE FOURTH DISTRICT COURT OF APPEALS ORDERED WRIT OF CERTIORARI. THE THREE ELEMENTS ARE IN DEPARTURE, THERE WAS DEPARTURE OF THE ESSENTIAL REQUIREMENT OF LAW. TWO, THAT RESULTED IN MATERIAL INJURY FOR THE REMAINDER OF THE CASE. AND THREE, THAT CAN NOT BE CORRECTED ON POST-JUDGMENT APPEAL. NOW ALTHOUGH THESE ELEMENTS FROM MY VIEW OF THIS CASE ARE IN PLAY. HERE. I MEAN HOW, FIRST OF ALL, WHAT WAS THE DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF LAW THAT THE TRIAL COURT VIOLATED? >> FIRST OF ALL THE FOURTH DISTRICT COURT OF APPEALS SPECIFICALLY ADDRESSED THE ESSENTIAL REQUIREMENTS OF LAW. THAT THERE IS LAW WHICH HAS BEEN ESTABLISHED IN FLORIDA THAT'S NOT UP IN PLAY, BEING DETERMINED THERE IS ABSOLUTE SETTLED LAW AS TO WHAT A MEDICAL MALPRACTICE IS OR FAILURE TO PROVIDE MEDICAL CARE. THERE IS ABSOLUTE LAW THAT THE STANDARD OF CARE CAN EITHER BE PROVEN BY A DOCTOR OR IN THE CASE OF A HOSPITAL THROUGH EXPERTS ON ADMINISTRATIVE MATTERS, NON-CLINICAL MATTERS. THERE IS ABSOLUTE LAW IN EVERY DISTRICT THAT, AND I THINK EVEN ONE SUPREME COURT CASE IS NOW, IT MAY EVEN HAVE BEEN OKEN,

20 THAT SAID YOU GET PRESUIT, EXCUSE ME, IF THERE IS VIOLATION OF 766 THAT YOU DISMISS THE CASE. THERE IS ALSO ABSOLUTE LAW IF WE DON'T GET OUR PRESUIT IN A 766 CASE WHERE IT IS >> HAS THIS COURT EVER SAID THAT A VIOLATION OF THE PRESUIT REQUIREMENT IN 766 IS AN AUTOMATIC CERTIORARI TO THE DISTRICT? >> NOT IN THOSE TERMS, YOUR HONOR, BUT WHAT HAS HAPPENED THE COURT OBSERVED I THINK IN THE OKEN CASE THAT THE DISTRICT COURTS RULED IF YOU DON'T GET THE PROCEDURE, IF YOU JUST DON'T GET THE PROCEDURE AT ALL BECAUSE THAT'S, THAT'S WHAT IS IMPORTANT ABOUT THE ESSENTIAL REQUIREMENTS OF LAW. IF YOU DON'T GET THE PROCEDURE MUCH LIKE PUNITIVE DAMAGES, IF YOU DON'T GET THE PROCEDURE WHERE YOU DON'T HAVE THE HEARING, THEY HEAR IT BY CERTIORARI BECAUSE YOU CAN NEVER REPAIR THAT. SO IF YOU DON'T GET A 766 PROCEDURE, YOU LOST THAT FOREVER. YOU CAN'T GO BACK AND DO IT. >> YOU COULD REVERSE THE CASE ON APPEAL. >> HERE IS THE 766, YOUR HONOR, THE REASON FOR IT, AND THE CASES ALL SAY IT, YOU TRY TO EVALUATE THE CASE TO ELIMINATE ALL FRIVOLOUS CASES FIRST. THEY WON'T BE FILED BECAUSE THE PEOPLE, THE PLAINTIFFS, CAN'T GET AFFIDAVITS. WELL THAT PROCEDURE HELPS WEED OUT THOSE CASES. IT HELPS SAVE THE COST OF LITIGATION AND IT ALSO PROVIDE THAT THE CASES CAN BE SETTLED AT THAT POINT BECAUSE NOW YOU HAVE AN AFFIDAVIT.

21 EVERYBODY HAS REVIEWED EVERYTHING. SO THAT IS THE REASON FOR >> IF WE FOLLOW THAT, AND IF WE CAME UP WITH A FAST RULE, BASICALLY SAYING THAT, WHAT WE'RE GOING TO BE RULING IS, ANYTIME A DEFENDANT, HOSPITAL OR DOCTOR, FILES A MOTION TO DISMISS ON THE ISSUE OF PRESUIT AND IT IS DENIED, THERE IS AUTOMATIC APPEAL TO THE FOURTH DISTRICT. >> ABSOLUTELY NOT. ABSOLUTELY NOT. ONLY WHEN THE PROCEDURE ITSELF WAS NEVER ALLOWED. THAT IS THE ONLY TIME THE COURTS DO IT. THERE IS A MILLION CASES WHERE PEOPLE HAVE TRIED TO GET UP FOR VARIETY OF REASONS THAT DON'T MAKE IT. BUT ONE THING IS CONSISTENT AMONG ALL THE DISTRICTS IS WHEN YOU LOSE YOUR RIGHT TO THE PRESUIT PROCEDURE IN 766, THAT IS THE DEPARTURE AGAINST THE ESSENTIAL REQUIREMENTS OF LAW. THAT, THAT IS WHY WE'RE, THAT'S WHY WE GOT TO THE FOURTH DISTRICT. I THINK THAT PART IS FAIRLY WELL SETTLED. IT IS NOT EVERY MOTION TO DISMISS THAT GETS CERTIORARI. WHEN YOU'RE DENIED THE PROCEDURE ALL TOGETHER, THAT DOES BECAUSE YOU CAN NEVER GET THAT BACK. >> WELL, WE HAVE IN SOVEREIGN IMMUNITY CASES, COUNSEL CITED WITH A COUPLE WHERE WE HAVE DEALT WITH THIS ISSUE -- >> I CAN TELL YOU THE DIFFERENCE THERE, YOUR HONOR. THE DIFFERENCE IN THE SOVEREIGN IMMUNITY CASES, THERE IS NO PROCEDURE SET UP. THE ONLY THING -- >> PROCEDURE, VALID AND HELD

22 VALID. LOST THROUGH THE WHOLE TRIAL. CAN'T GET THE AFFIDAVIT. CAN'T WEAVE OUT THE BAD CASE AND CAN'T SETTLE A CASE OR ASK FOR ARBITRATION. >> THIS CASE, THEY WOULD HAVE NEEDED AN EXPERT TO COME IN TO SAY THAT THIS IS A NEGLIGENT RETENTION CASE. EXPERT, MEDICAL EXPERT, TO COME IN AND SAY THAT, HOSPITAL WAS NEGLIGENT AND NOT DISMISSING THESE GASTROENTEROLOGISTS BECAUSE THEY KNOW FROM THE PREVIOUS INCIDENT WAS A GASTROENTEROLOGIST. THAT THEY KNEW THESE PEOPLE WOULD NOT FULFILL THEIR OBLIGATIONS TO COME TO THE HOSPITAL AND DEAL WITH PATIENTS WHO NEEDED THEIR CARE. >> TWO EXPERTS, YOUR HONOR. FIRST ONE WOULD BE TO SAY THAT THE GASTROENTEROLOGIST WAS REQUIRED TO INTERVENE TO SAVE THIS MAN'S LIFE AND DID NOT. THAT'S MEDICAL. ALL RIGHT, NOW, DID YOU SUPERVISE THIS PERSON IMPROPERLY, THEN THE EXPERT YOU'RE TALKING ABOUT COMES IN AND SAYS THAT IS NEGLIGENT SUPERVISION. THAT IS BELOW THE STANDARD OF CARE. TO RETAIN THAT DOCTOR, IF YOU KNEW 30 DAYS EARLIER, HE DID THE SAME THING OR THEY DID THE SAME THING, YEAH, IT IS TWO SETS, AND IT IS ALL MEDICAL. NOW THE FACT THAT YOU MAY HAVE SOME ADMINISTRATIVE MEDICAL BECAUSE YOU'RE DEALING WITH HOSPITAL PEOPLE. >> SECOND EXPERT IS NOT NECESSARILY MEDICAL BUT WOULD BE ADMINISTRATIVE. >> EXACTLY. >> THIS IS WHAT YOU DO IF PEOPLE

23 ARE ON CALL FAILED TO RESPOND TO CALLS REASONABLE HOSPITAL WOULD, YOU KNOW, LET THEIR SERVICES GO AND FIND SOMEONE ELSE? >> EXACTLY. >> THEY NEED -- >> YES, YOU YOUR HONOR. THAT IS COVERED BY SECTION 7, AFTER 2003, THE LEGISLATURE PUT IN SECTION 7 FOR HOSPITALS. THANK YOU. >> REBUTTAL? >> THANK YOU, YOUR HONORS. MY ESTEEMED COUNSEL SAID WE WOULD HAVE AN UNDERLYING CASE AGAINST THE DOCTORS FOR MEDICAL MALPRACTICE. I HAVE TO VEHEMENTLY DISAGREE WITH THAT CONTENTION. THERE WAS NO DOCTOR-PATIENT RELATIONSHIP BETWEEN THE DECEDENT AND THOSE DOCTORS EVER ESTABLISHED. THERE WAS NO FIDUCIARY RELATIONSHIP. THEY WERE CONTACTED BUT THE ISSUE IN THIS CASE IS NOT THOSE PARTICULAR PHYSICIANS WHO WERE CONTACTED. THE ISSUE IS, HOSPITAL ADMINISTRATION BECAUSE OF NON-MEDICAL REASONS. THE EXPERT IN THIS CASE, IF THERE WAS A MEDICAL EXPERT, TO COME -- >> IF THE DOCTOR HAD ACTUALLY, THE GASTROENTEROLOGIST ACTUALLY HAD BEEN AT THE HOSPITAL AND LOOKED AT PATIENT AND SAID, I'M NOT GOING TO, I'M NOT GOING TO TOUCH THEM, IS THAT A DIFFERENT STORY? >> IF HE LOOKED AT HIM AND SAID, I'M NOT GOING, WHAT IS HIS LAST NAME? HIS LAST NAME IS GOLDFARB. I DON'T TREAT, YOU KNOW WHAT I'M SAYING? IF THAT IS HIS POLICY, IT IS NOT MEDICAL INDECISION MAKING.

24 IF HE HEARS OF CLINICAL SCIENCE OR ON THE PHONE, TURNS OUT THAT THESE PHYSICIANS, THE HOSPITAL'S CONTACTED, THEY HEARD THE CLINICAL, THE CLINICAL ISSUES AND SAID, WE DON'T THINK WE NEED A GASTROENTEROLOGIST. WE DON'T THINK WE NEED TO COME IN RIGHT NOW, THOSE ARE MEDICAL DECISIONS, THEN WE WOULD BE CHALLENGING THE MEDICAL JUDGMENT OR SKILL. >> IF THERE IS A CONTRACTUAL OBLIGATION FOR THE PHYSICIAN TO COME IN ON CALL WITH THE HOSPITAL, THE CALL TO THE PHYSICIAN WAS MADE AND THEY FAILED TO SHOW UP TO TREAT THE PATIENT, IS THERE NOT A CLAIM FOR MEDICAL MALPRACTICE? >> I DON'T BELIEVE WE WOULD HAVE A DOCTOR/PATIENT RELATIONSHIP BETWEEN US AND THAT DOCTOR. THE PROMISE IS WITH THE STATE OF FLORIDA AND THE HOSPITAL AND THE PHYSICIANS AND THOSE ON-CALL PHYSICIANS TO PROVIDE EMERGENCY ROOM CARE. I DON'T BELIEVE WE WOULD HAVE A MEDICAL MALPRACTICE CASE. AND EVEN IF, EVEN IF YOU CONCLUDE WE DID, THERE STILL WAS NOT MEDICAL MALPRACTICE IN THIS CASE BECAUSE THEY DIDN'T, EXERCISE MEDICAL JUDGMENT. THE PRIOR INCIDENT GIVES THIS CASE CONTEXT BUT THE PRIOR INCIDENT IS NOT EVEN ITSELF DETERMINANT. THE ISSUE IS THE HOSPITAL HAD NO POLICY IN PLACE TO PROVIDE THIS MEDICAL TREATMENT AT ALL. AND THAT THEY KNEW IT PRIOR TO THIS INCIDENT IN PLACE. THAT IS THE HEART OF THIS CASE. AND THAT'S WHY IT IS NOT MEDICAL JUDGMENT OR MEDICAL SKILL WE'RE CHALLENGING. WE WOULDN'T BE BRINGING A MEDICAL, THAT CASE I BELIEVE

25 WOULD BE DISMISSED BECAUSE THERE IS A LACK OF MEDICAL STANDARD OF CARE THERE EVEN IF WE SUED THOSE PHYSICIANS, EVEN IF THERE HAD BEEN A FIDUCIARY RELATIONSHIP. EVEN IF IT WAS PHYSICIAN OR PRIMARY CARE DOCTOR WHO WAS SUPPOSED TO COME IN AND SAID, NO, I'M NOT COMING IN BECAUSE I DON'T TREAT ANYMORE. IF THAT POLICY WAS PUT IN PLACE AND THE DIRECTION HERE, THE CHALLENGE HERE IS TO THE HOSPITAL, THE CHALLENGE IS NOT TO THE PHYSICIANS HERE AS WELL AS OUR STATUTORY CLAIM UNDER , WHICH DIRECTLY CHALLENGES AS THE HOSPITAL POLICIES THAT WERE PUT IN PLACE AGAIN. >> LET ME MAKE SURE I UNDERSTAND ALSO BECAUSE, MR. HICKS SEEMS TO SAY THE HOSPITAL DIDN'T ACTUALLY HAVE A POLICY, BUT YOU ARE ALLEGING THIS POLICY WAS THERE SIMPLY BECAUSE THEY FAILED TO ACT ON PREVIOUS NON-APPEARANCE BY DOCTORS? >> THAT'S AN ALLEGATION. THAT'S NOT, THAT'S NOT AN ESSENTIAL PART OF OUR CASE. THE ESSENCE OF THE CASES THERE COULD NOT BE ANY MEDICAL CARE AT ALL. THE HOSPITAL HAD AN ADMINISTRATIVE POLICY IN PLACE. THERE WERE PRIOR INCIDENTS. >> ADMINISTRATIVE POLICY OF WHAT? >> TO NOT HAVE ANY GASTROENTEROLOGISTS WHO COULD COME INTO THAT HOSPITAL. THEY KNEW IT BEFOREHAND, THE ADMINISTRATORS KNEW IT AND THAT WAS A DECISION MADE ON THE ADMINISTRATIVE, NON-MEDICAL LEVEL BY THOSE ADMINISTRATORS. IT HAD NOTHING TO DO WITH PHYSICIANS, OTHER THAN THE FACT

26 THAT YES, THERE WAS MEDICAL CARE WHICH WAS NEEDED BUT THE STANDARD OF CARE HERE, THE ISSUE IN THIS CASE, THE CENTRAL ISSUE, THE NUB OF THIS CASE AS THE FOURTH DISTRICT HAS SAID IS THE ESSENTIAL CASE, THE NUB OF THIS CASE IS ADMINISTRATIVE EVEN WHEN IT TOUCHES UPON HAS MEDICAL COMPONENTS, DUTY, CAUSATION AND EVEN WHEN THERE MAY BE MEDICAL EXPERT TESTIMONY IN OTHER ASPECTS OF THIS CASE, NOT AS TO STANDARD OF CARE AND NOT AS TO MEDICAL JUDGMENT OR MEDICAL SKILL, BY ANYBODY. >> YOU'RE OUT OF TIME. ARE THERE ANY OTHER QUESTIONS FROM THE BENCH? >> THANK YOU VERY MUCH, YOUR HONOR. >> THANK YOU FOR YOUR ARGUMENTS.