Kaynan Fitchner v. Lifesouth Community Blood Centers, Inc. SC08-174

Transcription

1 The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court. Kaynan Fitchner v. Lifesouth Community Blood Centers, Inc. SC >>> LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SEATED. THE NEXT CASE ON THE COURT'S AGENDA THIS MORNING IS FITCHNER VERSUS LIFESOUTH COMMUNITY BLOOD CENTERS. >> GOOD MORNING. JUSTICE QUINCE, MAY IT PLEASE THE COURT. MY NAME IS DEAN LEBOEUF. MY LAW PARTNER AND I REPRESENT THE ESTATE OF CHASE FITCHNER. CHASE FITCHNER WAS A SEVEN-YEAR-OLD BOY SUFFERED FOR MONTHS AND DIED AS A RESULT OF THE SIMPLE NEGLIGENCE OF THE BLOOD BANK IN THIS CASE. THIS CASE NEVER WAS A CLAIM FOR MEDICAL MALPRACTICE. AND THAT IS WHY WE ARE HERE. >> WHAT WE ARE DEALING WITH IS THE RAMIFICATIONS OF THE 2003 AMENDMENT TO THE MALPRACTICE STATUTE, CORRECT. >> THE BLOOD BANK WOULD HAVE YOU BELIEVE IN 2003 THE LEGISLATURE -- >> WELL, THEY DID ADD BLOOD BANK TO THE DEFINITION OF "HEALTH-CARE PROVIDER" AMONG OTHER AMENDMENTS. >> >> RIGHT, WHICH WAS ONLY ONE TWO OF PRONGS REQUIRED FOR A MEDICAL NEGLIGENCE CLAIM. IN SILVA THIS COURT SAID THAT THERE WERE TWO PRONGS FOR MEDICAL NEGLIGENCE. >> LET ME ASK YOU THIS, IN A MEDICAL MALPRACTICE CONTENT IN

2 LOOKING AT THE WHOLE SCHEME OF 766, WHAT YOU ARE DEALING WITH IN THE STANDARD OF THE CARE, FOR INSTANCE, SAYS THAT IN ALL PERSONAL INJURY AND DEATH CLAIMS AGAINST A HEALTH-CARE PROVIDER AS DEFINED IN 204; CORRECT? >> 102 DEALS WITH STANDARD OF CARE FOR EXPERTS. A PRESUIT REQUIRES THAT IN ORDER TO BRING AN ACTION FOR MEDICAL NEGLIGENCE THE DEFENDANT -- >> ANY ACTION FOR RECOVERY OF DAMAGES BASED ON THE DEATH, PERSONAL INJURY OF A PERSON IN WHICH IT IS ALLEGED THAT DEATH OR INJURY RESULTED FROM THE NEGLIGENCE OF THE HEALTH-CARE PROVIDER AS DEFINED IN THE CLAIMANT SHALL HAVE THE BURDEN OF PROVING BY GREATER WEIGHT OF EVIDENCE THAT THE HEALTH-CARE PROVIDER REPRESENT A -- BREACHED A PREVAILING STANDARD OF CARE; RIGHT? >> THAT IS RIGHT. THAT TALKS -- >> IT WOULD NOW APPLY TO BLOOD BANKS. >> THAT DIDN'T CHANGE -- THERE WAS PREVIOUS STATUTE -- >> IT CHANGED INSOFAR AS THE BLOOD BANK WAS ADDED IN 2003 TO THE PROVISION THAT IT WAS A HEALTH-CARE PROVIDER. >> RIGHT, BUT FOR EVERY ACTION THAT A HEALTH-CARE PROVIDER ENGAGES IN, IT ISN'T MEDICAL MALPRACTICE. IT IS CLEAR LAW IN FLORIDA YOU ALSO NEED TO BE INVOLVED IN CARE AND TREATMENT OF THE CLAIMANT THAT'S SET FORTH IN PRESUIT, IN 203 SUBSECTION 2A WHICH WAS POINTED OUT -- >> DAMIANO. >> LET ME GIVE MY REASONING. >> CERTAINLY. >> MY REASONING IS THAT BY -- BY THE ADDITION OF A BLOOD BANK AS A HEALTH-CARE PROVIDER BY REASON OF THE FACT THAT,

3 UNDER THE 682 PROVISION, WE KNOW THAT THE PROCUREMENT OF BLOOD IS A SERVICE. THAT -- AND WE KNOW THAT UNDER THE MALPRACTICE SCHEME THAT MEDICAL NEGLIGENCE INVOLVES THE -- A -- FAILURE TO EXAMINE THE PREVAILING STANDARD OF CARE BY A HEALTH-CARE PROVIDER IN THE CARE AND TREATMENT OF -- THE RENDERING OF MEDICAL SERVICES. >> TO THE CLAIMANT. >> TO THE CLAIMANT. >> THAT WHEN YOU HAVE A SITUATION IN WHICH A HEALTH-CARE PROVIDER PROVIDES THE BLOOD AS A BLOOD BANK, AND KNOWING THAT THAT IS A SERVICE IN CONNECTION WITH THE CARE OF A PATIENT, WHY ISN'T THAT COVERED? >> BECAUSE YOU SAID IN SILVA THAT IT WAS A PRODUCT, AND IN DAMIANO, JUSTICE PARIENTE, THE REST OF THE FOURTH DCA SAID THAT THIS PRODUCT AND THE SCHEME OF IT BEING A PRODUCT WOULD BB APPLIED TO 766, AND THEY SAID SPECIFICALLY THAT WHEN A BLOOD BANK ONLY PROVIDES A PRODUCT TO THE RECIPIENT, THAT THE PROVIDING NO CARE AND TREATMENT TO RECIPIENT AND PRESUIT -- >> THAT WOULD TOTALLY ELIMINATE IF -- IF IT IS BECAUSE -- IN YOUR ANALYSIS THE PRODUCT, THAT TOTALLY ELIMINATES THE EFFECTIVENESS OF ADDING THE BLOOD BANK AS A HEALTH-CARE PROVIDER. >> NO, SIR, NOT AT ALL. SILVA WAS A CONFLICT CASE BETWEEN THE SECOND AND THE THIRD. THE THIRD DCA OPINION WAS DURHAM. DURHAM WAS A DONOR CASE. THE DONOR SUED BECAUSE THE BLOOD BANK GAVE HIM HEPATITIS. THIS COURT IN SILVA SAID THE BLOOD BANK WASN'T A

4 HEALTH-CARE PROVIDER, WASN'T COVERED UNDER THE MEDICAL MALPRACTICE ACT AS A RESULT OF THE AMENDMENT IN 2003, SINCE NOW A HEALTH-CARE PROVIDER WOULD HAVE BEEN PROVIDING CARE AND TREATMENT TO A MERE DONOR THEY GAVE HEPATITIS TO IN DURHAM, THEY DO HAVE CLAIMS BY DONORS, WHO THEY ACTUALLY HAVE PRIVITY WITH A RELATIONSHIP WITH DONORS, CAN COMPLY WITH PRESUIT BECAUSE THEY CAN GET THEIR OWN RECORDS. >> SO WHAT I GUESS -- ONE OF THE TROUBLING ASPECTS OF THIS WHOLE CASE, TO ME, THERE ARE SO MANY DEFINITION SECTIONS OF THE STATUTE WHICH BASICALLY SAY IT ONLY APPLIES, YOU KNOW, THE DEFINITIONS APPLY TO THESE SECTIONS. SO IT REALLY IS QUITE CONFUSING AS FAR AS I CAN TELL. SO ARE YOU TELLING US THAT THIS STATUTE, THE AMENDMENT TO THIS STATUTE MADE BLOOD BANKS A HEALTH-CARE PROVIDER ONLY IF IT IS THE DONOR WHO IS MAKING A CLAIM? >> NOT ONLY "IF". IN SILVA THE BLOOD BANKS ARGUED THAT THERE WERE CASES WHERE THEY ALSO PROVIDE CARE AND TREATMENT FOR RECIPIENTS. >> HOW IS THAT -- >> WELL, OUR EXPERT TESTIFIED IN THIS CASE, DR. SANDLER, A FORMER MEDICAL DIRECTOR FOR AMERICAN RED CROSS. HE SAID MANY TIMES A BLOOD BANK WILL ACTUALLY BE INVOLVED IN THE INFUSION SERVICES, FOR A RECIPIENT OF BLOOD, THEY WILL ACTUALLY TYPE THE BLOOD SPECIFICALLY AND ACTUALLY DO THE TRANSFUSION FOR THE RECIPIENT OF THE BLOOD. IN THAT CASE, THE RECIPIENT OF THE BLOOD COULD GET -- HAVE HIS OWN RECORDS, AND IF THEY WERE NEGLIGENT IN THE INFUSION

5 SERVICES THE RECIPIENT COULD -- WITH PRESUIT. >> LET ME ASK YOU, I WANT TO SORT OF TALK ABOUT PRACTICALITY, THE REAL WORLD. WHEN THE MALPRACTICE AMENDMENTS WERE PUT INTO EFFECT THE DESIGN WAS SPEEDY, TRY TO HAVE PROMPT RESOLUTION CAPS IN PLACE, STANDARDS FOR EXPERT WITNESSES. OF COURSE, PRESUIT WAS VERY IMPORTANT TO IT. I -- IN THIS CASE, IS THIS A CASE THAT YOU -- YOU FILED IT WITHIN THE TWO YEARS BUT WOULD THIS BE UNDER YOUR -- UNDER YOUR SCENARIO WOULD THIS BE SUBJECT TO THE FOUR-YEAR STATUTE OF LIMITATIONS? >> WELL, THAT IS ONE POINT UNDER SILVA WOULD BE SUBJECT TO FOUR-YEAR STATUTE OF LIMITATIONS. >> BUT YOU -- YOU FILED IT WITHIN -- >> WE FILED WITHIN TWO YEARS, AND THE -- >> OKAY. AND IF IN THE FUTURE, BECAUSE I'M -- THERE WAS AN ISSUE OF DENIAL OF ACCESS TO THE COURTS. >> RIGHT. >> TO ME, THE KEY IN THIS CASE IS GOING TO BE THAT THE DEFINITION OF MEDICAL MALPRACTICE OR NEGLIGENCE DIDN'T CHANGE, IT HAS TO BE THE CARE OR TREATMENT OF THE CLAIMANT. >> RIGHT. >> I JUST DON'T KNOW HOW YOU GET AROUND THAT, BUT WHAT -- IF -- IF YOU -- IF THIS FIRST DISTRICT DECISION HAD BEEN OUT THERE, YOU SAY YOU COULDN'T HAVE COMPLIED WITH IT BUT, REALLY, IF YOU COULDN'T HAVE GOTTEN YOUR RECORDS DOESN'T THE MEDICAL MALPRACTICE STATUTE ALLOW YOU TO DO SOMETHING DIFFERENT; IN OTHER WORDS, IN YOUR PRESUIT

6 INVESTIGATION? >> NOT IN THIS CASE, BORNE OUT BY FACT OF TWO THINGS. I NEED TO POINT OUT, FIRST OF ALL, THE DEFENSE FILED A MOTION TO DISMISS FOR FAILURE TO COMPLY WITH PRESUIT. THEY ELECTED NOT TO EXERCISE THE RIGHT TO FILE A PETITION FOR CERT. WE WERE STILL WITHIN THE TWO-YEAR STATUTE OF LIMITATIONS. >> THAT IS AS TO EQUITY, BUT WE ARE TRYING -- I'M TRYING TO GET -- >> -- OF HOW, YOU KNOW, THAT IF WE WERE TO APPLY THIS IS IT ALMOST -- IT JUST -- SOME OF IT JUST DOESN'T SEEM TO FIT, I MEAN YOU CAN'T HAVE SOMEBODY HAS TO LIST ALL HEALTH-CARE PROVIDERS OVER THE LAST FIVE YEARS, AND THEY ARE NOT GOING TO BE LISTING THE BLOOD BANKS THAT MAY HAVE GIVEN THEM A TRANSFUSION. NORMALLY YOU DON'T KNOW WHERE THE BLOOD CAME FROM. >> THAT IS EXACTLY RIGHT. >> SO THERE ARE SOME THINGS THAT DON'T FIT NEATLY. THAT IS NOT THE ISSUE. THE ISSUE IS I'M CONCERNED ABOUT YOUR ACCESS TO THE COURTS' ARGUMENT, AND I GUESS WHAT I'M SAYING, I DON'T REALLY SEE THAT THAT IS THE IMPEDIMENT THAT YOU OR THE AMICUS BRIEF SAYS IT IS; THAT IS, THAT IF YOU CAN'T GET THE INFORMATION ISN'T THERE A WAY TO FILE AN AFFIDAVIT THAT JUST SAYS YOU CAN'T GET THE INFORMATION? >> JUSTICE PARIENTE, WE WERE NEVER PROVIDED WITH THE ESSENTIAL ELEMENT OF PROOF IN THIS CASE UNTIL WE DEPOSED THE DONOR. THIS CASE WAS ABOUT COMMUNICATION, ABOUT THE DONOR

7 NOT SPEAKING WITH -- >> SO HOW DID YOU HAVE ENOUGH GROUNDS TO FILE THE COMPLAINT TO BEGIN WITH? >> WE FILED IT AS A SIMPLE NEGLIGENCE CASE, BECAUSE THE CDC TOLD MY CLIENTS THAT THEIR SON HAD BEEN INFECTED WITH WEST NILE VIRUS FROM BLOOD FROM A PARTICULAR BLOOD BANK. BUT WE HAD NO KNOWLEDGE, NOTICE TERM -- >> YOU KNEW WHAT YOUR CAUSE OF ACTION WAS GOING TO BE -- NEGLIGENCE, SUPPLYING BLOOD THAT CONTAINED WEST NILE VIRUS; CORRECT? THERE IS NOT -- THEY ARE NOT STRICTLY IMPORTANT. WHY DON'T YOU -- IF PRESUIT NOTICE WAS REQUIRED, OR EVEN IF YOU WERE ON NOTICE THAT THEY -- WHICH RAISING THIS, AS YOU SAID WITHIN THE TWO YEARS, WHY COULDN'T YOU HAVE JUST GONE BACK AND SAID, "HERE'S MY PRESUIT NOTICE"? I MEAN IT IS NOT -- I GUESS I'M JUST HAVING -- I DON'T THINK IT FITS IN THIS CASE, BUT I'M ALSO TRYING TO SEE HOW IT IS SUCH A -- A BURDEN. AS I SAID, I DON'T THINK IT FITS BECAUSE I DON'T SEE HOW IT WOULD RESOLVE THE CASE IN AN EXPEDITIOUS WAY. I'M STILL NOT SEEING HOW YOU COULDN'T COMPLY AT LEAST BY MIMICKING WHATEVER THE STATUTE SAYS YOU HAVE TO HAVE. CERTAINLY YOU HAD AN EXPERT, DIDN'T YOU, BEFORE YOU FILED SUIT. >> BUT WE DIDN'T HAVE A BASIS FOR THE EXPERT TO RENDER AN OPINION. WE WOULDN'T HAVE BECAUSE, FIRST OF ALL -- >> THEN YOU ARE SAYING YOU DIDN'T HAVE A BASIS TO FILE THE NEGLIGENCE CASE. >> THE BASIS TO FILE AGAINST BECAUSE THEY KNEW THIS BLOOD BANK HAD PROVIDED CONTAMINATED BLOOD TO A HOSPITAL AS OPPOSED TO IT -- HOSPITAL,

8 THE HOSPITAL INFUSED INTO IT OUR CHILD -- >> BUT, IF YOU ARE COVERED UNDER THIS STATUTE THEN DON'T YOU HAVE AVAILABLE TO YOU AND THIS -- AS A PART OF THE -- QUESTION DON'T YOU HAVE AVAILABLE TO YOU THE PRESUIT INVESTIGATION PORTION, WHICH EVEN COMES BEFORE THE NOTICE -- >> RIGHT. >> -- SO IF YOU ARE COVERED UNDER THE STATUTORY COULD YOU GET INFORMATION -- UNDER THIS PRESUIT DISCOVERY PROCESS CAN'T YOU -- >> NO, YOUR HONOR. AS THE DAMIANO COURT HELD PRESUIT WAS NOT INTENDED TO APPLY TO A RECIPIENT OF CONTAMINATED BLOOD. >> BUT IF WE HOLD THAT IT DOES, THEN BLOOD BANKS MAY HAVE TO BE GIVING UP PRIVILEGES THAT THEY NOW ARE ASSERTING, YOU KNOW, THEY ARE GOING TO -- IT GOES -- YOU KNOW, WHETHER -- I DON'T THINK, LIKE I SAID, I DON'T THINK THIS FITS AT ALL. AND I UNDERSTAND YOUR FRUSTRATION COMING UP HERE REPRESENTING THE ESTATE OF THIS CHILD, AND THIS VERY TRAGIC SITUATION, BUT WE HAVE TO SET ASIDE THE TRAGIC SITUATION AND LOOK AT QUESTIONS OF LAW. >> RIGHT. >> THE BLOOD BANK SAYS LISTEN, YOU NEEDED TO DO THIS, THEN THEY ARE GOING TO HAVE TO GIVE UP -- IF THAT WERE THE CASE THE LEGISLATURE INTENDED IT, THEN THEY COULDN'T ALSO ASSERT PRIVILEGES, COULD THEY. >> BUT WE CAN'T INFER THAT THE LEGISLATURE INTENDED IT BECAUSE THEY NEVER CHANGED PRESUIT. >> NOW WE GO BACK TO STATUTORY CONSTRUCTION.

9 >> RIGHT, AND -- YOU KNOW, BUT I WANTED TO UNDERSTAND, WHAT YOU WERE SORT OF SAYING IS -- IMPOSITION IT WILL BE OF PERFORMANCE BECAUSE IT'S IMPOSSIBLE TO PERFORM PER SE DENIAL OF ACCESS TO COURT. >> WE DIDN'T HAVE TO DO PER SE. IN WEINSTOCK VERSUS GROTH YOU SAID IF REASONABLE IMPEDIMENT PRESUIT SHOULD BE CONSTRUED IN FAVOR OF ACCESS, ON THE FIRST PART OF MEDICAL MALPRACTICE A AS THE DAMIANO COURT POINTED OUT WASN'T CHANGED, WASN'T AFFECTED BY 2003 LEGISLATURE. WE HAVE TO DO REASONABLE INVESTIGATION TO SEE IF THEY WERE NEGLIGENT, IN THE CARE, AND TREATMENT OF OUR CLIENT, THE RECIPIENT. THERE WAS NO PRIVITY BETWEEN OUR CLIENT AND THE BLOOD BANK. WE HAD NO ABILITY TO KNOW THEY HAD TAKEN BLOOD FROM AN UNQUALIFIED DONOR. >> ISN'T IT INTERESTING, THOUGH, THAT THE VERY DEFINITION OF "HEALTH-CARE PROVIDER" THAT YOU INCLUDE BLOOD BANK IN , WHICH IS THE PRESUIT INVESTIGATION SECTION OF THE CHAPTER? >> BECAUSE EVERYTHING THAT HEALTH-CARE PROVIDER DOES IS NOTED MALPRACTICE. THERE ARE REAMS OF CASES WHERE HEALTH-CARE PROVIDER, HEALTH-CARE PROVIDER WHO MOVES AN X-RAY MACHINE HITS A PATIENT IN THE HEAD IS NOT AVOIDING CARE AND TREATMENT TO THE PATIENT. WE HAVE NO PRIVITY, NO RELATIONSHIP WITH THE BLOOD BANK. THEY WEREN'T PROVIDING CARE AND TREATMENT TO US. >> -- OUT OF THE DISTRICT COURTS -- >> PARDON ME. >> YOU ARE TALKING ABOUT CASES

10 OUT OF THE DISTRICT. >> YES, SIR. >> JUSTICE ANSTEAD, I BELIEVE, HAD A QUESTION. >> YOU ARE -- AND I THINK YOU STARTED OFF IN RESPONSE TO JUSTICE WELLS' QUESTION, BUT IT REALLY IS IMPORTANT THAT YOU ADDRESS HEAD-ON, THE LEGISLATURE IN THIS SCENARIO REALLY IS THE 800-POUND GORILLA. >> YES. >> SO IF THEY WANTED TO MAKE McDONALD'S RESTAURANTS HEALTH-CARE PROVIDERS AND REQUIRE A PRESUIT NOTICE, AND THE WHOLE THING, THEY CAN DO IT. >> YES. >> YOU KNOW, AND SO -- WHAT WE ARE ASKING YOU TO ADDRESS IS THAT ON THE SURFACE A STRONG ARGUMENT HAS BEEN MADE AND CAN BE MADE THAT THIS IS EXACTLY WHAT THEY DID WITH BLOOD BANKS WHEN THEY INCLUDED IT IN THIS SECTION. NOW, THAT -- AND WE'RE USING THAT, REALLY, AS A STARTING POINT. >> SURE. >> BECAUSE THE LEGISLATURE, YOU KNOW, DID THAT. AND SO -- >> THAT IS TRUE, JUSTICE -- >> -- WE COME BACK TO STATUTORY INTERPRETATION, IT IS -- IT PRESENTS -- OBVIOUSLY, THE POSTURE YOU ARE IN ACKNOWLEDGES THAT YOU ARE IN A VERY DIFFICULT SITUATION. WE ARE REALLY ASKING FOR YOUR BEST SHOT -- >> SURE. >> -- AS OPPOSED TO THE PRACTICAL CONSIDERATIONS, ALL OF THAT KIND OF THING ABOUT STATUTORY INTERPRETATION. >> WELL -- >> HAVE YOU ALREADY STATED IT OR IS THERE MORE, OR WHAT IS YOUR BEST SHOT. >> WELL, MY BEST SHOT IS --

11 >> WE ARE LOOKING AT THE LEGISLATURE AS THE 800-POUND GORILLA HAS PUT McDONALD'S RESTAURANTS IN THERE, NOW, AND WE HAVE TO ACCEPT THAT. >> RIGHT. >> OKAY. NOW WHERE DO WE GO FROM HERE? >> WHERE WE GO -- >> A FINDING FOR YOU, IN TERMS OF WHAT IS THE STATUTORY INTERPRETATION FOR YOU? >> WELL, I THINK I WILL READ YOUR OPINION WHERE YOU SAID THE LEGISLATURE IS DEEMED TO KNOW WHAT THE LAW IS AND WHAT JUDICIAL DECISIONS ARE, AND IF THEY INTEND TO CHANGE A JUDICIAL DECISION THEY NEED TO DO SO. CLEARLY, THE DAMIANO CASE CLEARLY SAID THAT WHEN A BLOOD BANK IS MERELY SUPPLYING CONTAMINATED BLOOD THE RECIPIENT OF THE BLOOD CAN'T COMPLY WITH PRESUIT. PRESUIT DOESN'T APPLY. >> YOUR BEST ARGUMENT THAT IS THEY INTENDED TO OVERALL -- OVERRULE ONE PART OF SILVA. >> YES. >> WHICH IS THERE ARE CIRCUMSTANCES WHERE A BLOOD BANK CAN BE A HEALTH-CARE PROVIDER. >> CORRECT. >> YOU HAVE GIVEN SOME EXPLANATIONS BUT THEY THEN HAD A SECOND PART, THEY COULD HAVE CHANGED IT, AND ANY WAY THEY WANT, TO ELIMINATE THAT -- THERE HAD TO BE -- >> -- TREATMENT OF THE CLAIMANT, AND THEY DIDN'T DO THAT. >> THANK YOU. THAT IS EXACTLY MY ARGUMENT. >> AND -- YOU ARE WELL -- >> LET ME CLEAR UP ONE THING, THE -- RESPONDENT HERE SAYS THAT EACH BLOOD RECIPIENT KNOWS THE PRECISE ORIGIN OF EACH BLOOD UNIT.

12 >> THAT IS NOT TRUE. ALL THEY HAVE IS NUMBERS. >> WHAT IS IT, THE RECORD TO -- THAT THE RECORD REFLECTS JUST WHAT I'M SAYING, THEY HAVE NUMBERS. THEY HAD NO INFORMATION. >> THEY HAVE NUMBERS? >> THEY HAVE A NUMBER FOR THE DONOR, THE DONOR IS ASSIGNED A NUMBER, DON'T KNOW ANYTHING ABOUT BACKGROUND, COMMUNICATION SKILLS, WE KNEW NOTHING ABOUT THE DONOR. >> ANYTHING ABOUT KEEPING -- >> IT IS ALL A MATTER OF PRIVITY THAT THE BLOOD BANK HAD NOTHING TO DO WITH PROVIDING US WITH MEDICAL CARE OR SERVICES, BECAUSE THEY WERE DEALING WITH THE DONOR, THEY WERE PROVIDING CARE AND TREATMENT FOR THE DONOR. IF THEY HURT THE DONOR THE DONOR WOULD SUE THEM FOR MEDICAL MALPRACTICE, BUT ALL THEY PROVIDED TO US WAS A PRODUCT. AND THE LEGISLATURE, 800-POUND GORILLA, DID NOT ADDRESS THAT. THAT IS WHY DAMIANO AND SILVA ARE STILL GOOD LAW. IF YOU WANT TO SAVE ANY TIME -- >> YOU HAVE A COUPLE MINUTES LEFT. >> THANK YOU. >> MAY IT PLEASE THE COURT. ROBERT BIASOTTI REPRESENTING LIFESOUTH COMMUNITY BLOOD CENTERS. >> I'M GETTING RIGHT TO MY DILEMNA HERE, ALL RIGHT IN THAT WHAT IF THE LEGISLATURE INTENDED TO DO -- IT'S FINE WITH ME AS LONG AS EVERY ONE KNOWS THE RULES AHEAD OF TIME, SO THAT WE DON'T HAVE A GOTCHA SITUATION. CLEARLY, THEY INTENDED TO INCLUDE BLOOD BANKS AS A HEALTH-CARE PROVIDER UNDER SOME -- UNDER THE MEDICAL MALPRACTICE STATUTE. >> CORRECT. >> YOU AGREE WITH THE FACT

13 THAT NOT EVERYTHING THAT SOMEONE WHO IS CALLED A HEALTH-CARE PROVIDER DOES IS SUBJECT TO THE -- PREREQUISITES CONDITIONS PRECEDENT OF THE MEDICAL MALPRACTICE STATUTE. YOU AGREE WITH THAT? >> I AGREE -- >> I THINK THE BEST EXAMPLE THE FOOD IS POISON, HOSPITALS ALL THE TIME, I GUESS, PEOPLE ARE SLIPPING AND FALLING, AND THERE'S LOTS OF THINGS, THEY DON'T HAVE TO DO WITH TREATMENT AND CARE -- AND IF THEY WANTED TO BROADEN THIS FOR EVERYONE, INCLUDING HOSPITALS THAT PROVIDE BAD FOOD, OR SLIP AND FALLS, SO THAT THERE IS NOT THIS LINE AS TO WHEN IT IS OR ISN'T, THEY COULD JUST SAY THAT'S CORRECT. BUT THEY DIDN'T CHANGE, AND I THINK THIS IS WHAT I WOULD ASK YOU TO ADDRESS, THAT THE WHOLE IDEA, BOTH MEDICAL NEGLIGENCE CASE, AND THE PRESUIT INVESTIGATION, IS THAT THERE HAS TO BE AN ISSUE AS TO THE CARE OR TREATMENT OF THE CLAIMANT. >> LET ME ADDRESS THAT AS BEST I CAN. THERE ARE TWO DIFFERENT STATUTES HERE, PRESUIT NOTICE, PRESUIT INVESTIGATION. PRESUIT NOTICE DOESN'T SAY ANYTHING ABOUT CARE OR TREATMENT. IT SAYS ONLY MEDICAL SERVICES. THE PRESUIT INVESTIGATION DISCUSSES CARE AND TREATMENT BUT, AS JUSTICE QUINCE POINTS OUT, IF WE DIDN'T COMPLY WITH THAT THEN THERE IS NO PROBLEM, THERE IS NO REQUIREMENT TO DO AN AFFIDAVIT WITH THE PRESUIT NOTICE. SO THERE IS NO PROBLEM WITH ACCESS TO COURTS. >> SO ARE YOU SAYING, THEN, THAT THESE PEOPLE, THE BLOOD BANKS HAVE TO COMPLY WITH THE PRESUIT NOTICE BUT THEY DON'T HAVE TO COMPLY WITH THE

14 PRESUIT INVESTIGATION? >> NO, NO, THAT IS NOT WHAT I'M SAYING AT ALL. I'M SAYING IF YOU ARE A PLAINTIFF, YOU HAVE AN OBLIGATION TO COMPLY WITH PRESUIT NOTICE STATUTE BEFORE YOU DO THAT YOU HAVE TO CONDUCT AN INVESTIGATION WHERE YOU GO OUT AND YOU ASK THE HEALTH-CARE PROVIDER FOR DOCUMENTS, AND YOU GET EXPERTS, AND YOU PROCEED IN THAT INVESTIGATION PROCESS. >> BUT THAT IS THE SECTION THAT HAS THE LANGUAGE THAT JUSTICE PARIENTE JUST READ TO YOU ABOUT THE DEFENDANT WAS NEGLIGENT IN THE CARE OR TREATMENT OF THE CLAIMANT. THAT IS UNDER THE PRESUIT INVESTIGATION PORTION OF THE STATUTE. >> WHAT IT SAYS IS -- I WILL DO MY BEST TO TRY TO SORT US THROUGH THIS. LET ME DO IT A DIFFERENT WAY. LET ME STEP THROUGH A DIFFERENT STATUTE AND GO BACK TO SPECIFIC LANGUAGE IN THE STATUTE. YOU ARE TALKING ABOUT THIS PRESUIT NOTICE STATUTE. THE ONLY STATUTE IN ISSUE THE CERTIFICATED QUESTION IN THE PRESUIT INVESTIGATION STATUTES 203 TO 204, 205, WHICH TALK ABOUT THE INVESTIGATION PROCESS. AND, BY THE WAY, INVESTIGATION IN THAT CONTEXT, IN 202 SUB 5 SAYS IT REALLY IS A CONSTRAINT ON THE LAWYER, IT IS THE ATTORNEY WHO IS SUPPOSED TO CHECK ALL THESE THINGS OUT, IT IS A CONSTRAINT ON THE INVESTIGATION. PART OF THE INVESTIGATION PROCESS SAYS BEFORE YOU DO A

15 PRESUIT NOTICE, AND BEFORE YOU -- YOU GET TO CONDUCT AN INVESTIGATION, YOU CAN GO TO A HEALTH-CARE PROVIDER, LIKE A BLOOD BANK, AND REQUEST DOCUMENTS. NOW, AS JUSTICE PARIENTE POINTS OUT, THERE IS A CONFLICT THERE, BECAUSE THE BLOOD BANK HAS CONFIDENTIALITY RESPONSIBILITIES, AND WON'T BE ABLE TO TURN OVER CERTAIN INFORMATION TO THE PLAINTIFF. >> BEFORE WE GET TO THAT, AS I UNDERSTAND THIS -- THIS WHOLE MALPRACTICE SECTION OF THE STATUTE, THAT IN 10 THERE IS A DEFINITION OF MEDICAL MALPRACTICE, MEDICAL NEGLIGENCE; RIGHT? >> MEDICAL NEGLIGENCE OR MEDICAL MALPRACTICE. >> CLAIM FOR MEDICAL NEGLIGENCE OR MEDICAL MALPRACTICE MEANS A CLAIM ARISING OUT OF FAILURE TO RENDER MEDICAL CARE OR SERVICE. >> CORRECT, ABSOLUTELY CORRECT. >> THAT IS A -- THAT IS THE DEFINITION USED IN THIS SECTION. >> CORRECT. >> AND I MIGHT ADD JUSTICE WELLS, THERE IS A DIFFERENT DEFINITION OF MEDICAL MALPRACTICE IN >> AND WHAT THAT IS -- >> IT TALKS ABOUT -- MEDICAL MALPRACTICE EITHER IN CONTRACT OR TORT. AS A PRACTICAL MATTER ON -- >> MEDICAL NEGLIGENCE MEANS MEDICAL MALPRACTICE GROUNDED IN TORT OR -- >> CORRECT. >> AND THAT IS WHAT THE DEFINITIONS ARE -- >> CORRECT. >> -- IN THIS WHOLE SCHEME. >> CORRECT. >> BUT THE 106 DEFINITION CHANGED IN 2003? >> ONLY TO THE EXTENT THAT THE

16 INCORPORATED BY REFERENCE, THE DEFINITION OF WHAT A HEALTH-CARE PROVIDER WAS FROM 2024, 2024 DIDN'T -- I TAKE THAT BACK. THAT WAS IN 102. BUT SECTIONS CHANGED -- >> YOU AGREE THAT THIS IS, AGAIN, THIS HAS BEEN PATCHED TOGETHER AS A STATUTE OVER PROBABLY 30 YEARS NOW, OR 25 YEARS, THAT YOU COULDN'T -- YOU'VE GOT TO READ THE WHOLE THING TOGETHER TO LOGICAL -- >> ABSOLUTELY. >> AND I'M NOT SURE BECAUSE, AS YOU WERE GOING ALONG, AND I THINK IT IS HELPFUL FOR YOU TO GO ALONG AND I THINK THAT -- STARTING WITH WHAT THE DEFINITION IS, AS TO WHO IT APPLIES TO, ARE YOU SAYING THAT IT IS NOW SO BROAD THAT EVEN IF YOU WERE SUING A HOSPITAL FOR A SLIP AND FALL THAT OCCURRED, THAT YOU WOULD NEED TO GO THROUGH PRESUIT NOTICE AND -- >> NO. >> OKAY. >> NOT AT ALL, I WOULDN'T EQUATE THIS AT ALL TO SLIP AND FALL. THIS IS NOT THE KIND OF CASE WHERE SOMEBODY IN THE HOSPITAL, SPILLS TEA ON A PATIENT. YOU DON'T NEED MEDICAL NEGLIGENCE STANDARD OF CARE TO PROVE IT UP. >> IF WE ARE TRYING TO LIMIT LIABILITY THE INSURER WOULD HAVE DONE THAT. >> BUT THAT IS NOT -- THIS CASE, WHAT THIS CASE IS ABOUT, IS THE ESSENTIAL SERVICES THAT BLOOD BANKS PROVIDE. IT IS WHAT THEY DO. THE PEOPLE WHO ARE GIVING THE BLOOD, THE DONORS, ARE NOT GETTING HEALTH CARE. THEY ARE DONATING BLOOD. THE PEOPLE GETTING THE HEALTH CARE ARE THE RECIPIENTS. THE SCREENING OF THE BLOOD, AND TRYING TO

17 KEEP WEST NILE VIRUS OUT OF BLOOD IS A MEDICAL SERVICE PROVIDED BY A MEDICAL DOCTOR, PROFESSIONAL STANDARD OF CARE UNDER SECTION 102. DR.^SANDLER, THEIR EXPERT, CAME IN AND TESTIFIED THAT WHAT LIFESOUTH DID WAS A BREACH OF THE STANDARD OF CARE AND THAT THAT BREACH CAUSED THIS NEGLIGENCE. THAT'S A PROFESSIONAL STANDARD OF CARE UNER WEINSTOCK, THAT MEANS THAT IT'S MEDICAL NEGLIGENCE, NOT SLIP AND FALL NEGLIGENCE. THIS IS TOTALLY UNLIKE TRIPPING IN THE HALL IN THE HOSPITAL. IT IS CLOSER TO AND WE CITE AT CASE WHERE A DIETICIAN IN A HOSPITAL DOESN'T FOLLOW A DOCTOR'S ORDERS AND GIVES THE WRONG KIND OF FOOD TO A PATIENT AND THE COURT SAID NO, THAT REQUIRES A PRESUIT NOTICE. THAT'S MEDICAL SERVICES. AND THE ISSUE HERE IS NOT TREATMENT OR CARE. AND WITH RESPECT TO THE SILVA CASE, THERE ARE THREE THINGS GOING ON HERE. THERE'S, MEDICAL CARE AND SERVICES IN 106. THERE'S TREATMENT AND CARE IN 203. SILVA, WHICH DOESN'T EVEN APPLY TO ANY. THIS IS STATUTE OF LIMITATIONS TALKS ABOUT DIAGNOSIS, TREATMENT OR CARE. COMPLETELY DIFFERENT STANDARD. >> MY, YOU KNOW, AGAIN, EVERY TIME I READ THIS STATUTE OVER I JUST, YOU KNOW, I GET CONFUSED MORE OR LESS DEPENDING. I THINK THAT ONE OF MY CONCERNS IS IT'S CLEAR THAT THE LEGISLATURE ADDED THE DEFINITION TO HEALTHCARE PROVIDER. BUT IN LIGHT OF SILVA AND DAMIANO, IF THE INTENT WAS TO MAKE BLOOD BANKS, THERE HAD TO BE PRESUIT, THERE HAD TO BE

18 LIMITS ON LIABILITY, WOULDN'T WE EXPECT A CLEAR AND PRECISE STATEMENT? IT'S SORT OF LIKE, THIS IS NOT AT GOOD FIT AND YOU'D HAVE TO AGREE IT'S NOT A GOOD FIT FOR THE PRESUIT, WHAT WAS INTENDED BECAUSE IT'S, AND SO, WHY ISN'T IT MORE LOGICAL TO SAY LISTEN IF THAT'S WHAT THE LEGISLATURE WANTS TO DO IN LIGHT OF WHAT WE SAID IN SILVA, THAT IS, TO TAKE, BLOOD BANKS WHICH ARE KIND OF SUI GENERIS IT'S A --I APPLAUD AMERICAN RED CROSS AND ALL THESE PLACES THAT RUSH IN TIMES OF DISASTER, BUT IF THEY'RE TRYING TO PROTECT THE BLOOD BANK INDUSTRY, SEEMS THERE SHOULD BE A STATUTORY SCHEME THAT'S REALLY FIT THAT INDUSTRY, NOT TRY TO GET IT INTO THE ONE THAT WAS RELATING TO DOCTORS AND HOSPITALS. AND I THINK YOU START TO END UP WITH, THAT'S MY PROBLEM IS THE THAT I DON'T SEE THAT THEY CLEARLY INTENDED TO DO THIS BECAUSE, AND IF THEY DID, THEY ONLY PARTIALLY CHANGED DEFINITIONS AND THEY LEFT OTHERS THAT ARE NOT APPLICABLE. SO, HELP ME WITH THAT ONE WHICH IS THAT, YOU KNOW, IT'S NOT LIKE THEY WERE WRITING ON A CLEAN SLATE IN THE THEY HAD OUR CASE LAW OUT THERE THAT WAS PRETTY CLEAR ABOUT WHAT THIS COURT WAS SAYING, THAT A SUPPLIER OF BLOOD, UNLIKE SOME OF THE OTHER OUT OF STATE JURISDICTIONS, WAS NOT, THAT WAS NOT WITHIN THE MEDICAL NEGLIGENCE FIELD. >> THERE ARE THREE THINGS ABOUT SILVA THAT ARE TOTALLY DIFFERENT THAN THIS CASE. NUMBER ONE, SILVA WAS ADDRESSING THE STATUTE OF LIMITATIONS AND THE COURT SAID AT THAT TIME, THAT ONLY, THAT'S LIMITED TO DIAGNOSIS, TREATMENT OR CARE AND THIS IS NOT

19 DIAGNOSIS, TREATMENT OR CARE, MAYBE. NUMBER TWO, IT'S CLEAR THAT A BLOOD BANK IS NOT A HEALTHCARE PROVIDER. THAT'S WHAT THIS COURT SAID IN SILVA. AND NUMBER THREE, WHAT THIS COURT SAID IN SILVA, TOWARDS, I THINK IT'S ON, I DON'T HAVE THE EXACT PAGE NUMBER BUT THE COURT SAID THAT, IF THE LEGISLATURE WANTED TO USE THE TERM, MEDICAL SERVICES, WHICH IS A MUCH BROADER TERM IN THE CONTEXT OF THE STATUTE OF LIMITATIONS IT COULD HAVE BUT IT DIDN'T. IT USED DIAGNOSIS, TREATMENT AND CARE. SO WHAT'S THE LEGISLATURE FACED WITH? WELL, THE STATUTE OF LIMITATIONS DOESN'T DEAL WITH THE HEALTHCARE PROVIDER AND IT ONLY DEALS WITH DIAGNOSIS, TREATMENT AND CARE, NOT SERVICES. SO LET'S, SO WHAT THEY DID AS PLAINLY AS CAN BE IS MAKE A BLOOD BANK A HEALTHCARE PROVIDER AND PROVIDE THAT A PRESUIT NOTICE IS THE REQUIRED FOR THE DELIVERY OF MEDICAL SERVICES, WHICH IS EXACTLY WHAT BLOOD BANKING IS. >> IS THERE LEGISLATIVE HISTORY THAT ACCOMPANIES THIS WAS THE EXACT REASON FOR THE CHANGE OF THE RULE? >> THERE IS NOT A LOT OF DETAIL BEHIND IT BUT THE PLAIN LANGUAGE IS -- >> I'M ASKING YOU. I DON'T KNOW IF THERE IS LOT OF DETAIL. WHAT I'M ASKING YOU IS THERE LEGISLATIVE HISTORY NOT THAT THAT IS IN ALL CASES INDICATIVE OF ANYTHING, BUT GENERALLY TO ME IT'S A PRETTY SWEEPING CHANGE AND I JUST, IS THE ANSWER NO, THERE ISN'T? >> THERE IS NOTHING SPECIFIC ABOUT BLOOD BANKS BUT PUT IT

20 INTO THE CONTEXT, THIS IS THE 2003, 416 IS THE STATUTE WHERE THIS HAPPENED. THIS IS AT A TIME WHEN THE LEGISLATURE HAD FOUR SESSIONS JUST TO ADDRESS MEDICAL MALPRACTICE. THERE WERE JUST, YOU KNOW, LOADS OF MEETINGS AND CONFERENCES AND HEARINGS AND STUFF TO DEVELOP THIS MEDICAL MALPRACTICE. >> THAT IS TO THE CRISIS IN THE LIABILITY INSURANCE FOR DOCTORS ONCE AGAIN? >> FOR HEALTHCARE PROVIDERS. BY THE WAY, LIKE LIFESOUTH. SO WHAT YOU HAVE IS A SYSTEM, THINK OF THE FOLLOW DOWN THE ROAD THAT YOU'RE GOING. WHAT THEY PLED IN THEIR COMPLAINT IS A CLAIM FOR A TRANSFUSION-RELATED INJURY, WEST NILE VIRUS IN BLOOD. IN THAT CONTEXT, THAT COULD BE THE FAULT OF THE DOCTOR. IT COULD BE THE FAULT OF THE HOSPITAL. IT COULD BE THE FAULT OF A NURSE. IT COULD BE THE FAULT OF A BLOOD BANK. I DON'T THINK THERE IS ANY QUESTION THAT THE DOCTOR WOULD BE ENTITLED TO PRESUIT NOTICE, THE HOSPITAL, THE NURSE, EVERYBODY IN THAT CHAIN, EXCEPT THE BLOOD BANK. >> GIVE US, YOU SAY IN YOUR BRIEF, YOUR OPPONENT SAYS, NO, THAT THAT THE UNIT OF BLOOD WAS IDENTIFIABLE. >> IT'S IDENTIFIABLE BY NUMBER. WHAT HAPPENED IN THIS CASE WAS, REMEMBER, THIS WAS, THEY FOUND WEST NILE VIRUS IN THE BLOOD. THE HOSPITAL SENT THE 57 IDENTIFIABLE NUMBERS, EACH UNIQUE NUMBER FOR EVERY SINGLE UNIT OF BLOOD, TO THE BLOOD BANK SO THEY COULD IDENTIFY BY NUMBER THE EXACT PERSON WHO GAVE BLOOD. THIS IS NOT A, A BLOOD BANK IS

21 NOT A SITUATION WHERE YOU TAKE ALL THE B-POSITIVE BLOOD DUMP IT INTO A VAT AND SCOOP OUT A PINT AND GET IT TO SOMEBODY. WHEN SOMEBODY GETS A TRANSFUSION OF A PINT OF BLOOD, IT CAME FROM A SPECIFIC ONE-TO-ONE PERSON. IT IS NOT A PRODUCT. IT IS A BIOLOGICAL ORGAN THAT CAN ONLY COME FROM ANOTHER HUMAN BEING, ONE SINGLE HUMAN BEING TO ANOTHER HUMAN BEING. YOU KNOW -- >> YOUR ARGUEMENT IF EVERYONE IN THE CHAIN IS SUBJECT TO THE PRESUIT INVESTIGATION, YOU WOULD AGREE THERE ARE CASES THAT SAY, INVOLVE THOSE MACHINES, AS SOMETHING, THE MACHINE, THAT DOESN'T DRIP, I FORGET WHAT IT'S CALLED, THAT PROVIDES IV OR YOU KNOW, LIFE-SUPPORT AND, THERE ARE CASES WHERE YOU SUE THE PERSON WHO HAS PROVIDED THE MACHINE AS WELL AS EVERYONE IN THE CHAIN. >> CORRECT. >> YOU DON'T HAVE TO, THAT'S NOT -- >> THAT'S REALLY A PRODUCT. THAT'S REALLY A PRODUCT. THIS IS NOT A PRODUCT. >> SO THERE IS NOTHING THAT SAYS WHEN IT'S INVOLVED WITH THE INCIDENT, IT'S MALPRACTICE? >> IF IT'S -- >> EVERYBODY IN THE CHAIN, TO ME IT MIGHT MAKE A GOOD SENTENCE. LET'S GET EVERYONE IN THE ROOM TO TRY TO RESOLVE IT IF YOU HAVE A PRODUCT MANUFACTURER. THAT MIGHT BE A GOOD IDEA BUT THAT'S NOT WHAT HAS BEEN DONE. >> WHAT HAS BEEN DONE THOUGH THAT IF IT'S A NEGLIGENCE, MEDICAL NEGLIGENCE CLAIM, NEGLIGENCE IN THE PROVIDING OR FAILURE TO PROVIDE MEDICAL CARE OR SERVICES, BY A HEALTHCARE PROVIDER, ALL OF THOSE PEOPLE ARE IN THE CHAIN. >> NOW YOU WERE, I THINK,

22 STARTING TO SHOW HOW THE PRESUIT NOTICE DOESN'T LIMIT IT TO CARE AND TREATMENT. BUT THEN YOU WERE AGREEING THAT THE PRESUIT INVESTIGATION SAYS THAT THE CLAIMANT SHALL CONDUCT AN INVESTIGATION TO ASCERTAIN WHETHER THERE ARE REASONABLE GROUNDS TO BELIEVE ANY NAMED DEFENDANT WAS NEGLIGENT IN THE CARE OR TREATMENT OF THE CLAIMANT. SO I DON'T KNOW THAT YOU CONTINUED IN YOUR, IN YOUR, BECAUSE YOU AGREE THAT ONE, LIMITS WHO IS TO BE INVESTIGATED? >> THAT IS A CONSTRAINT ON AN ATTORNEY UNDER 202.5, WHICH DEFINES THE WORD INVESTIGATION, AS TO WHAT SHOULD BE LOOKED AT IN THIS PROCESS. >> WELL, SO FRIVOLOUS CASES AREN'T BROUGHT IN TERMS OF DOCTORS. OR HOSPITALS OR HEALTHCARE PROVIDERS. >> THAT'S EXACTLY THE POINT AND IT'S A POINT I WANT TO GET OUT BEFORE MY TIME RUNS OUT. THE PURPOSE OF PRESUIT IS NOT TO JUST, YOU KNOW, DENY PEOPLE ACCESS TO COURTS. THE WHOLE PURPOSE OF PRESUIT IN ALL CONTEXT INCLUDING BLOOD BANKS IS GET A SPEEDY RESOLUTION, TO FIX PROBLEMS, TO POTENTIALLY ARBITRATE CLAIMS, YOU KNOW, IF, WHAT WOULD HAPPEN IN THIS CASE, AND LET'S JUST FOLLOW IT THROUGH LOGICALLY, YOU HAD TO DO A PRESUIT NOTICE, YOU HAD TO DO AN INVESTIGATION. BY THE WAY THERE IS NO CLAIM IN THIS CASE AT ANY TIME THAT THEY COULDN'T DO AN INVESTIGATION OTHER THAN ARGUMENT THAT CAME UP POSTAPPEAL. BUT THEY DIDN'T COME FORWARD TO THE COURT AND SAY, JUDGE, THERE IS NO WAY WE COULD HAVE DONE AN INVESTIGATION. HERE, LET ME PROVE IT. YOU COULD HAVE ASKED FOR

23 DOCUMENTS. THERE'S NO RECORD HERE THAT THEY DIDN'T GET THE DOCUMENTS OR COULDN'T DO THE WORK. SO WHAT'S HERE IS, A CLAIM THAT THIS IS JUST NOT MEDICAL MALPRACTICE, NOT THAT THEY COULDN'T DO THE INVESTIGATION. >> SO THEY FILED THIS, IF THEY HAD FOLLOWED THE PRESUIT INVESTIGATION STATUTES, THERE WOULD BE NO ARGUEMENT OR CLAIM BY THE PERSON THEY'RE TRYING TO GET INFORMATION FROM? THIS IS NOT A SITUATION INVOLVING THE CARE AND TREATMENT OF THE CLAIMANT? AND SO WE'RE NOT, YOU'RE NOT ENTITLED TO THIS INFORMATION? >> THAT'S NOT WHAT THAT STATUTE SAYS. RESPECTFULLY TALKS ABOUT -- >> I'M TALKING ABOUT 203. >> 203 IS THE INVESTIGATION PROCESS. >> CORRECT. >> 204 TELLS YOU WHAT YOU CAN GET. >> OKAY. >> 204 SAYS THAT YOU CAN GET COPIES OF MEDICAL RECORDS RELEVANT TO ANY LITIGATION OF A MEDICAL NEGLIGENCE CLAIM OR DEFENSE. YOU GO, A CLAIMANT, JUST, NOT THIS CASE, ANY CASE, HAS A PROBLEM WITH A BLOOD ISSUE. THEY ARE ABOUT TO DO A PRESUIT NOTICE. THEY GO TO THE BLOOD BANK WHICH IN THIS CASE THEY KNEW THE EXACT DONOR. DON'T ANOTHER, NUMBER, 1, 2, 3, 4, 5, THEY KNEW THAT FROM THE CDC REPORT. GIVE ME ALL THE DOCUMENTS ABOUT THIS DONOR AND PS, WE WANT TO DEPOSE THE DONOR OR TALK TO HIM. THE BLOOD BANK AS THEY'RE REQUIRED TO DO, SAYS NO, THAT INFORMATION IS CONFIDENTIAL. THEY HAVE MET THEIR PRESUIT

24 REQUIREMENT. THEY DO NOT REQUIRE AN AFFIDAVIT FROM AN EXPERT. BECAUSE THEY HAVEN'T GOTTEN THE INFORMATION THAT THEY NEED TO MAKE THEIR CASE. SO ALL THEY HAVE TO DO IS FILL OUT A FORM. WE ARE DOING, THIS IS TO INFORM YOU THAT WE ARE GOING TO SUE YOU FOR MEDICAL NEGLIGENCE. THAT IS THE PRESUIT NOTICE. WHAT DOES THAT THEN TRIGGER? THAT REQUIRES THE BLOOD BANK TO DO ITS OWN INVESTIGATION. GIVES THEM THE OPPORTUNITY TO ADMIT LIABILITY AND ARBITRATE DAMAGES. BUT IT FOSTERS THE SPEEDY RESOLUTION. THIS CASE, THEORETICALLY AT LEAST, COULD HAVE BEEN RESOLVED IN SHORT ORDER, BUT MORE IMPORTANTLY, IF THERE WAS A PROBLEM AT THE BLOOD BANK, IT GETS IMMEDIATELY I'D NEED. THAT'S WHAT THE -- IDENTIFIED. THAT'S WHAT THE PURPOSE OF THIS PRESUIT IS. THAT'S WHY RESPECTFULLY IT APPLIES TO BLOOD BANKS. >> I'M A LITTLE PUZZLED, IF WE CAN'T GET THE INFORMATION DURING AN INVESTIGATION, HOW ONE CAN MAKE ANY KIND OF DECISION LATER ON DURING THIS PRETILE PROCESS? YOU'VE REPRESENTED THIS IS JUST EASILY HAPPENS BUT HOW CAN SOMEONE MAKE THAT DECISION IF YOU DON'T HAVE THE MATERIAL YOU NEED TO MAKE A DECISION WHICH COMES FROM THAT INVESTIGATION? >> LET ME BE CLEAR ABOUT THAT. THIS WHOLE PROCESS DIDN'T HAPPEN. AT LEAST NOT IN THIS RECORD. BUT LET'S SAY IT DID HAPPEN. YOU WENT TO THE BLOOD BANK, GIVE ME ALL THE RECORDS ABOUT THIS DONOR. THE RESPONSE IS, LOOK, WE CAN'T GIVE YOU HIS NAME, THAT IS NOT ALLOWED BUT WE CAN GIVE YOU ALL

25 THE RECORDS WITH THE TESTS THAT WE RAN. WE CAN GIVE YOU A REDACTED VERSION OF THE SDR, SINGLE DONATION RECORD. ALL THE KIND OF INFORMATION THAT THEY GOT IN DISCOVERY, THEY COT HAVE GOTTEN IN PRESUIT, NOT COUNTING THE STUFF THAT WAS OBJECTED TO AND ARGUED ABOUT BUT THERE IS CERTAIN INFORMATION YOU CAN GET. IT'S CERTAINLY CONCEIVEABLE FROM THAT INFORMATION YOU HAVE ENOUGH INFORMATION TO GIVE TO AN EXPERT TO SHOW THAT THERE WAS DEVIATION OF THE STANDARD OF CARE. MAYBE SOMEBODY DIDN'T RUN AN HIV TEST. THERE ARE A LOT OF THINGS THAT COULD HAVE GONE WRONG, IN THAT PROCESS. FOLLOW THAT ALONG. THE BLOOD BANK, WHEN IT GETS THIS PRESUIT NOTICE DOES ITS OWN INVESTIGATION, SAYS, YOU KNOW WHAT? THERE IS PROBLEM HERE. WE'VE IDENTIFIED A PROBLEM AND WE'RE GOING TO ADMIT LIABILITY. THAT'S THE PART OF THE WHOLE SCHEME OF MEDICAL MALPRACTICE AND WHAT WAS REDONE AND THAT IS WHAT LIFESOUTH WAS DENIED AND THE PRESUIT ISSUE THAT WE'RE HERE ON THE CERTIFIED QUESTION, REALLY FOCUSES JUST ON THAT MEDICAL SERVICES. >> THANK YOU VERY MUCH. WITH THAT YOU USED YOUR TIME. >> I HAVE THREE THINGS I'D LIKE TO SAY. NUMBER ONE, IF THEY REALLY WANTED PRESUIT, AND WEINSTEIN VERSUS GROTH, YOU SAID MOTION TO DISMISS WAS DENIED FOR PRESUIT THAT HE HAD THEY HAD A FOR PETITION TO CERT THEY DIDN'T DO IT. >> THEY AREN'T OBLIGATED TO DO THAT. >> TURNS INTO GOTCHA LITIGATION.

26 >> AS LEGAL MATTER THEY DON'T WAIVE THAT. >> THERE IS NO CASE LAW. >> BY THEIR FAIL LAWYER TO DO THAT. >> THERE IS NO CASE LAW SAYS IT'S WAIVED. SECONDLY, WITH REGARD TO PROVIDING THE DOCUMENTS. WE ASKED FOR ALL THE DOCUMENTS. WE ASKED TO DEPOSE THE DONOR. THEY FILED A MOTION FOR PROTECTIVE ORDER. EIGHT MONTHS LATER WE HAD HEARING ON THAT WHEN WE'RE IN LITIGATION. AT RECORD >> BEFORE OR AFTER YOU FILED THE COMPLAINT. >> AFTER THE SUIT. BUT IT PROVES THEY HAD NO INTENTION OF EVER PROVIDING THE INFORMATION AND PRESUIT DOESN'T APPLY JUST LIKE THE COURT SAID IN DAMIANO. WE'LL PROVIDE YOUR HONOR WITH REDACTED DOCUMENTS. THEY WOULDN'T GIVE THE COURT FULL DOCUMENTS. REDACTED DOCUMENTS NOT GIVEN TO THE PLAINTIFF EVEN THOUGH WE ASKED FOR IT JUST FOR THE PURPOSES OF THIS HEARING AND WE STILL DON'T INTEND TO GIVE THEM TO THE PLAINTIFF. THEY ALSO WOULDN'T LET US TO DEPOSE THE DONOR. >> YOU'RE REALLY MAKING, GET BACK TO YOUR LAST, THE -- >> BEST ARGUMENT? >> COUNSEL MADE, OPPOSING COUNSEL MADE SOME GOOD ARGUMENTS ABOUT WHAT 106 HAS AND WHAT PRESUIT NOTICE HAS. >> THE GRAVAMEN OF THIS CASE WE HAD A RIGHT TO RELY ON SILVA, DAMIANO. IF THEY INTENDED TO CHANGE PRESUIT THEY NEEDED TO DO IT CLEARLY. THEY DIDN'T. THEY DIDN'T ADDRESS IT IN THE LEGISLATIVE HISTORY.

27 THEY DIDN'T CHANGE THE STATUTE A REASONABLE INVESTIGATION UNDER THE STATUTE WASN'T CHANGED. >> WE KNOW THEY CHANGED STATUTE AS ADDING BLOOD BANK AS A HEALTHCARE PROVIDER. AND DIDN'T THEY ALSO CHANGE THE STATUTE WHEN THEY MADE, SAID THAT, MALL, MEDICAL NEGLIGENCE OR MEDICAL MALPRACTICE IS RENDERING OR FAILING TO RENDER MEDICAL CARE OR SERVICES? >> NO. GO BACK AND CHECK THE STATUTE , WHICH IS THE DEFINITION IN PRESUIT OF MEDICAL NEGLIGENCE, DIDN'T CHANGE OTHER THAN THE FACT THAT THEY CHANGED IT TO SAY, MEDICAL NEGLIGENCE, ORIGINALLY SAID MEDICAL MALPRACTICE. THEN IT -- >> CHANGED THE STATUTE. >> THEY CHANGED NAME AND SAID MEDICAL MALPRACTICE IS MEDICAL NEGLIGENCE. OTHERWISE THEY DIDN'T CHANGE THE TERM MEDICAL CARE AND SERVICES. MEDICAL CARE AND SERVICES UNDER IS THE SAME TERM AS USED AT THE TILE OF DAMIANO AND SILVA. THAT DIDN'T CHANGE IN , 101.1, DEFINITION OF MEDICAL NEGLIGENCE IN PRESUIT, SAID MEDICAL CARE AND SERVICES JUST LIKE IT SAYS TODAY. AND I WOULD POINT OUT THAT THE BLOOD BANK, AFTER THE COURT DENIED THE MOTION TO DISMISS IN THIS CASE, WENT TO THE LEGISLATURE AND TOLD THE LEGISLATURE WHAT HAPPENED IN THE TRIAL COURT AND SAID, WILL YOU PLEASE AMEND 102. THIS IS IN THE RECORD. WILL YOU PLEASE AMEND THE MEDICAL MALPRACTICE STATUTE AND INCLUDE WHEN WE PROVIDE A PRODUCT, WHEN WE GIVE BLOOD, SELL BLOOD TO A HOSPITAL AND IT'S GIVEN TO DONOR, WILL YOU

28 PLEASE INCLUDE THAT IN THE STATUTE UNDER 766. THE LEGISLATURE SAID NO. >> IS IT CORRECT THAT UNDER THE STATUTE, 672, OR 381, ONE OF THOSE STATUTES SAYS, HAS NOW BEEN CHANGED TO THE EXTENT THAT IT SAYS, THAT, IT'S GUIDED BY THE FEDERAL REGSLATION? >> NO. THAT EXISTED AT THE TIME OF SILVA. THAT EXISTED AT TIME OF PARIENTE. >> IS THERE A REQUIREMENT UNDER THE FEDERAL REGULATION THAT THE BLOOD BE COLLECTED UNDER SUPERVISION OF A DOCTOR? >> THAT DIDN'T CHANGE IT WAS THE SAME THEN AND IT IS NOW. IN THIS CASE THE BLOOD WAS TAKEN BY AN 18-YEAR-OLD GIRL WHO JUST GOTTEN OUT OF HIGH SCHOOL. THERE WAS NO DOCTOR. THERE WAS NO MEDICAL SUPERVISION. SHE WAS WITH THE DONOR ALONE. SHE SAID IF SHE KNEW HE ASKED FOR TRANSLATOR OR ASKED FOR THE FORMS IN SPANISH SHE WOULDN'T HAVE TAKEN HIS BLOOD. THE STATUTE, HAS NOT BEEN CHANGED SINCE SILVA OR DAMIANO WITH REGARD TO THE PRESUIT NOTICE REQUIREMENTS. AND THEREFORE, WE HAD A RIGHT TO RELY ON SILVA AND DAMIANO IN THIS CASE NOT REQUIRING PRESUIT AND NOT FALLING UNDER THE MEDICAL MALPRACTICE ACT. BECAUSE OF THAT WE WOULD ASK THIS COURT TO QUASH THE DECISION OF FIRST DCA AND REINSTATE THE VERDICT IN THIS CASE. >> THANK YOU VERY MUCH. THANK BOTH OF YOU FOR YOUR ARGUMENT