Florida Legal Updates – January

Compiled by Don Freeman, FJA Legislative Analyst

St. Joseph’s Hospital, Inc. v. Jane Doe

Opinion from the Second DCA filed January 13, 2017

Appellant claimed she was sexually assaulted by an employee of St. Joseph’s while a patient in its mental health unit. Count one of the complaint alleged negligence for failing to prevent the attack from happening. Count two alleged violations of § 766.110, Fla. Stat., entitled “Liability of Healthcare Facilities,” for failing to have and comply with a comprehensive risk management program, pursuant to § 395.0197, Fla. Stat., tasked with investigating and reviewing “adverse incidents.” St. Joseph’s tried to argue that summary judgment should be granted because this was a medical malpractice case and presuit was not followed. Trial court denied on both counts.

DCA affirmed denial of summary judgment on simple negligence claim but held that the trial court erred in denying it on count two, on the grounds that “any claim pleaded under § 395.0197 is necessarily a medical negligence claim because the section requires hospitals to investigate ‘adverse incidents,’ which by definition are associated in whole or in part with medical intervention and therefore necessarily arise out of . . . medical dental or surgical diagnosis, treatment, or care.” The court noted that presuit needed to be followed and wasn’t, and also that a sexual assault did not meet the statutory definition of an “adverse [medical] incident.”

Reversed in part and remanded.

DAVID M. BARICKO v. BARNETT TRANSPORTATION, INC. and YORK RISK SERVICES GROUP

Opinion from First DCA filed January 17, 2017

Appellant lost in workers compensation court and JCC’s order was per curium affirmed. However, WETHERELL, J wrote a concurring opinion characterizing as “frivolous” appellant’s claim that the JCC erred in applying the Daubert test codified in section s. 90.702, Fla. Stat., because that test is not applicable unless and until it is adopted by the Florida Supreme Court.

The First DCA specifically held in Giaimo v. Florida Autosport, Inc., 154 So. 3d 385, 388 (Fla. 1st DCA 2014), that the Daubert test now applies in workers’ compensation proceedings.  Additionally, the Supreme Court does not have the authority to establish procedural rules for executive branch quasi-judicial proceedings such as those under chapter 440, Fla. Stat., noting that “even if …. the [Supreme] Court declines to adopt the Daubert test in section 90.702 for judicial proceedings because the test is procedural in nature, that decision will have no impact whatsoever on the applicability of the Daubert test in workers’ compensation proceedings.”

Per Curium Affirmed

GREEN EMERALD HOMES, LLC, v. PNC BANK, N.A. AND TREVOR SAHADATALLI

Opinion from Fifth DCA filed January 13, 2017

Green Emerald appealed trial court’s denial of its motion to quash service of process. PNC Bank claimed that Green Emerald was concealing its whereabouts in order to evade process, entitling it to pursue substitute service of process on the Secretary of State under §§ 48.062(3) and 48.161(1), Fla. Stat. However, PNC’s substitute service was deficient because: (1) it did not mail a copy of the notice of service and a copy of the process to Green Emerald by registered or certified mail, (2) did not file the return receipt from such mailing, and (3) did not file its counsel’s affidavit of compliance.

PNC argued that its failure to comply with the statutory prerequisites should be excused under the reasoning in Alvarado-Fernandez v. Mazoff, 151 So. 3d 8 (Fla. 4th DCA 2014). In Alvarado, the plaintiff had gone to extraordinary lengths to serve the respondent in Colombia, including  hiring two separate attorneys to investigate Defendant’s whereabouts, making multiple requests for further information from the parties and police involved and even trying to use social media to track her down when all else failed, all of which excused plaintiff’s failure to file a return receipt. In PNC’s case, the court declined to extend Alvarado to include wholesale disregard for the statutory requirements, noting “Perfection of substituted service requires strict compliance with the statutory prerequisites because such service is an exception to personal service.”

PNC also argued that Green Emerald waived service of process because its counsel filed a notice of appearance and a request for an extension of time in which to contest the deficient process. These arguments were rejected.

Reversed and remanded.