Aiken v. USA et al

Filing 15

ORDER: Defendant Option Care Enterprises, Inc.'s Motion to Dismiss for Failure to Comply with Florida Medical Malpractice Act and Presuit Requirements 11 is DENIED. The Court stays the case as to Option Care until and including OCTOBER 30, 2 014. The parties are directed to file a joint status report regarding Aiken's claim against Option Care on or before OCTOBER 31, 2014. Unless the Court is notified that a different course of action is required, the Court will return Aiken's claim against Option Care to active status on NOVEMBER 3, 2014. Signed by Judge Virginia M. Hernandez Covington on 9/22/2014. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GEORGE HENRY AIKEN, III,
Plaintiff,
v.

Case No. 8:14-cv-1921-T-33EAJ

UNITED STATES OF AMERICA,
OPTION CARE ENTERPRISES, INC.,
and BONNIE L. BRUCK-MEIGGS,
Defendants.
/
ORDER
This matter comes before the Court pursuant to Defendant
Option Care Enterprises, Inc.’s (d/b/a Walgreens Infusion and
Respiratory Services) Motion to Dismiss for Failure to Comply
with Florida Medical Malpractice Act and Presuit Requirements
(Doc. # 11), which was filed on September 2, 2014.

Plaintiff

George Henry Aiken, III filed a response in opposition to the
Motion on September 12, 2014. (Doc. # 14).
that follow, the Motion is denied.

For the reasons

However, after finding

that Aiken failed to comply with the statutory presuit notice
requirements of Fla. Stat. § 766.106(3), the Court stays this
action as to Option Care until October 30, 2014.
I.

Background
Aiken received treatment for a systemic infection at the

Emergency Department of the James A. Haley Veteran’s Hospital
in September and October of 2012. (Doc. # 1 at ¶¶ 6.1-6.17).

In addition to treatment at the hospital, Aiken was prescribed
home

antibiotic

therapy,

including

“administrating

of

Gentamicin and the taking of serial blood draws for laboratory
testing.” (Id. at ¶ 6.5).
The James A. Haley Veteran’s Hospital contracted with
Defendant Option Care to provide infusion services “including
the intravenous administration of antibiotics to George Aiken,
the taking of blood samples, and the monitoring of blood
laboratory results for markers indicative of decreased renal
function associated with the administration of Gentamicin.”
(Id. at ¶ 6.14).

Aiken alleges “employees, agents, servants

and/or representatives of Defendant Option Care, including
Defendant [Bonnie L. Bruck-] Meiggs, were responsible for
monitoring the blood laboratory readings for George Aiken.”
(Id. at ¶ 6.15).
According to Aiken, Meiggs and other Option Care agents
failed

to

appropriately

respond

to

“critical

laboratory

markers indicative of decreased renal function associated with
the administration of Gentamicin.” (Id. at ¶ 6.16).

Aiken

lost his balance on October 10, 2012, and was admitted for
treatment at the Emergency Department of the James A. Haley
Veteran’s Hospital on October 11, 2012. (Id. at ¶¶ 6.11-6.12).
During this hospital admission, Aiken was diagnosed with
2

“gentamicin

induced

ataxia,

oscillopsia

and

acute

renal

failure.” (Id. at ¶ 6.12). On November 28, 2012, “as a direct
and

proximate

result

of

Gentamicin

induced

ataxia

and

oscillopsia, George Aiken fell causing him to fracture his
hip.” (Id. at ¶ 6.13).
On August 1, 2014, counsel for Aiken tendered to Option
Care a detailed letter titled "Notice of Intent to Initiate
Litigation" and indicated that such letter was intended to
comply with the requirements of Florida Statute § 766.106.
(Doc. # 14-6).
the

Even though the statutory notice period of

aforementioned

Florida

Statute

spans

90

days,

Aiken

initiated this law suit on August 11, 2014, by filing a
Complaint against the United States of America, Option Care,
and Bruck-Meiggs. (Doc. # 1).

The Court’s subject matter

jurisdiction is predicated upon Aiken’s assertion of a Federal
Tort Claims Act cause of action against the United States.
(Id. at ¶ 1.6).

Although the Complaint does not contain

labeled counts, it appears that Aiken sues Bruck-Meiggs for
medical malpractice and seeks damages against Option Care,
Bruck-Meiggs's employer, based on the theory that Option Care
is vicariously liable for Bruck-Meiggs's allegedly tortious
conduct.
On September 2, 2014, Option Care filed a Motion to
3

Dismiss based on Aiken’s alleged failure to comply with the
Florida

Medical

Malpractice

Act

and

presuit

notice

requirements. (Doc. # 11). Aiken has responded to the Motion.
(Doc. # 14).
II.

Analysis
As a condition precedent to filing a medical negligence

suit,

Florida

Statute

§

766.106

requires

a

prospective

plaintiff to notify a defendant health care provider of the
plaintiff’s intent to initiate litigation. “No suit may be
filed for a period of 90 days after notice is mailed to any
prospective defendant.” Fla. Stat. 766.106(3)(a).
90-day

presuit

investigation

period,
and

has

the

defendant

the

opportunity

must
to

During the
conduct
reject

an
the

plaintiff’s claim, make a settlement offer, or offer to
arbitrate.

Fla. Stat. 766.106(3)(c).

Here, it is not disputed that Aiken sent Option Care a
presuit notice letter.

However, rather than waiting for a

response from Option Care and prior to the expiration of the
90-day notice period, Aiken filed a lawsuit against Option
Care only 10 days after furnishing the presuit letter.
Option Care seeks an Order dismissing this action because
it was not provided the full 90 day period to investigate the
claim. Aiken, on the other hand, suggests that its failure to
4

wait 90 days before filing suit should be excused because
Option Care is not a “health care provider” as that term is
defined

in

Florida

law,

and

therefore,

Aiken

was

not

technically required to provide any presuit notice and was not
required to wait 90 days to file the instant suit.
In Pierrot v. Osceola Mental Health, Inc., 106 So.3d 491,
493 (Fla. 5th DCA 2013), the court clarified that, for
Florida’s Medical Malpractice presuit requirements to apply,
the

claim

must

be

one

for

medical

malpractice

and

defendant must be a statutory “health care provider.”

the

Here,

the face of the Complaint states that this is an action for
medical malpractice, therefore, the Court’s narrow inquiry is
whether Option Care is a “health care provider.”
Florida Statute 766.202(4) defines “Health care provider”
as follows:
any hospital, ambulatory surgical center, or mobile
surgical facility as defined and licensed under
chapter 395; a birth center licensed under chapter
383; any person licensed under chapter 458, chapter
459, chapter 460, chapter 461, chapter 462, chapter
463, part 1 of chapter 464, chapter 466, chapter
467, part XIV of chapter 468, or chapter 486; a
clinical lab licensed under chapter 483; a health
maintenance organization certified under part 1 of
chapter 641; a blood bank; a plasma center; an
industrial clinic; a renal dialysis facility; or a
professional association partnership, corporation,
joint
venture,
or
other
association
for
professional activity by health care providers.

5

Id.
In the Motion to Dismiss, Option Care asserts that it is
“A Florida licensed health care provider pursuant to Part 1 of
Chapter 646, Florida Statutes.” (Doc. # 11 at 1). Option Care
further explains in the Motion that it “is a licensed and
accredited home health nursing and infusion and respiratory
services provider [and] [t]here is no dispute that Option Care
is a healthcare provider pursuant to Section 400.464, Florida
Statutes.” (Id. at 4).
Here, the Complaint appears to allege that Bruck-Meiggs,
a pharmacist, was the active tortfeasor, and that Option Care,
her employer, is vicariously liable.

While Aiken stresses

that pharmacists are not “health care providers” as that term
is defined in Fla. Stat. §766.202(4), the court in Puentes v.
Tenet Hialeah Healthsystems, 843 So.2d 356, 358 (Fla. 3d DCA
2003),

demonstrated

that

vicariously

liable

health

care

providers are entitled to presuit notice - even when the
active tortfeasor is not necessarily a statutorily defined
health care provider.1

1

Option Care agrees with Aiken’s position that
pharmacists, such as Bruck-Meiggs, are not statutory “health
care providers.” Specifically, Option Care indicates in its
Motion to Dismiss that “the pharmacist’s status as a nonhealth care provider does not obviate the requirement that
Plaintiff was obligated to comply with the presuit
6

In

Puentes,

a

hospital

intensive

care

unit

patient

suffering from severe food allergies was prescribed a special
diet free of certain categories of food. Id. at 357. However,
“the dieticians and kitchen employees aggravated her condition
by giving her a diet contrary to what her doctor had ordered.”
Id. at 357-58.

The court dismissed the action for failure to

comply with the statutory presuit notice requirements and that
decision was affirmed on appeal over the claimant’s assertion
that “the hospital was not entitled to presuit notice because
the

hospital’s

included

in

dieticians

the

and

statutory

provider.’” Id. at

357.

kitchen

definition

employees
of

are

‘health

not
care

Thus, the Court rejects Aiken’s

assertion that the requirements of presuit notice are not
triggered because the active tortfeasor is a non-health care
provider pharmacist.
In addition, Aiken’s argument that Option Care is not
entitled

to

statutory

presuit

notice

is

belied

by

the

undisputed fact that Aiken provided Option Care with presuit
notice. (Doc. # 14-6).

Specifically, on August 1, 2014,

counsel for Aiken sent a lengthy and detailed letter to Option

requirements of section 766 by allowing a 90 day period for
Option Care to investigate the alleged negligence of its
pharmacist as well as other potentially liable parties.” (Doc.
# 11 at 6).
7

Care titled “Notice of Intent to Initiate Litigation” and
stated

therein

that

“This

Notice

of

Intent

to

Initiate

Litigation shall serve to notify you that we intend to
initiate litigation against you and this letter is our notice
of intent to do so as required by section 766.106, Florida
Statutes.” (Id. at 2). The same letter also solidifies the
conclusion that Aiken’s suit is one for medical malpractice,
as Aiken’s counsel remarks: “We intend to initiate litigation
against you for injuries sustained by George Aiken that arise
out of the negligent care and treatment of Mr. Aiken arising
from your agent’s failure to properly monitor, report, and
respond
decreased

to

pertinent
renal

laboratory

function

and

markers
elevated

indicative
serum

of

trough

concentrations of Gentamicin.” (Id.)
Option Care’s Motion to Dismiss is not predicated upon
Aiken’s failure to provide presuit notice - as such notice was
in fact provided.

Rather, Option Care seeks dismissal of

Aiken’s claim based on Aiken’s failure to wait 90 days to
initiate this action.

As noted, presuit notice was provided

on August 1, 2014, and Aiken filed suit on August 11, 2014.
Florida Statute § 766.106, titled “Notice before filing action
for medical negligence; presuit screening period; offers for
admission

of

liability

and
8

for

arbitration;

informal

discovery; review” specifies that:
no suit may be filed for a period of 90 days after
notice is mailed to any prospective defendant.
During the 90-day period, the prospective defendant
or the defendant’s insurer or self-insurer shall
conduct a review as provided in s. 766.203(3) to
determine the liability of the defendant.
Each
insurer or self-insurer shall have a procedure for
the prompt investigation, review, and evaluation of
claims during the 90-day period.
Fla. Stat. § 766.106(3)(a).

Aiken agrees that “Plaintiff

served [Option Care] with a presuit notice [that] was received
by [Option Care] on August 4, 2014.” (Doc. # 14 at 7).
In addition to requiring the plaintiff in a medical
malpractice case to furnish presuit notice to the defendant,
the

statute

also

places

malpractice defendants.

numerous

obligations

on

medical

The statute indicates that, during

the 90-day notice period, the defendant must investigate the
claim using one or more of the following procedures: (1)
internal review by a qualified claims adjuster; (2) creation
of a panel comprised of an attorney, a health care provider,
and a claims adjuster; (3) consultation with a medical review
committee; or (4) “any other similar procedure which fairly
and promptly evaluates the pending claim.” Id. This includes
the duty to “investigate the claim in good faith.” Id.
In addition, the statute requires the defendant “at or
before the end of the 90 days,” to provide the plaintiff with
9

a response rejecting the claim, making a settlement offer, or
making an offer to arbitrate “in which liability is deemed
admitted and arbitration will be held only on the issue of
damages.” Fla. Stat. § 766.106(3)(b).
The Court determines that Option Care was entitled to
presuit

notice,

and

that

presuit

notice

was

provided.

However, Aiken filed this action prior to the expiration of
the statutory 90-day period for Option Care to investigate the
claim and reject the claim, make a settlement offer, or offer
to arbitrate.
Although Option Care seeks dismissal of the action based
on Aiken’s failure to comply with the statute, the Court finds
that the more appropriate remedy is to stay the case as to
Option Care for the statutory 90-day period so that Option
Care may fulfil its statutory duties and appropriately respond
to Aiken’s claims. The Florida Supreme Court has emphasized
that “when possible, the presuit notice and screening statute
should be construed in a manner that favors access to the
courts.” Patry v. Capps, 633 So. 2d 9, 13 (1994).

As presuit

notice was furnished on August 1, 2014, the Court stays the
case as to Option Care until and including October 30, 2014,
so

that

Option

investigate

Care

Aiken’s

may
claim

have
and
10

the

opportunity

reject

the

to

claim,

fully
make

a

settlement offer, or offer to arbitrate, and fulfil its
statutory obligations with respect to Aiken’s claim.

The

parties are directed to file a joint status report regarding
Aiken’s claim against Option Care on or before October 31,
2014. Unless the Court is notified that a different course of
action is required, the Court will return Aiken’s claim
against Option Care to active status on November 3, 2014.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Option Care Enterprises, Inc.’s Motion to
Dismiss

for

Failure

to

Comply

with

Florida

Medical

Malpractice Act and Presuit Requirements (Doc. # 11) is
DENIED.
(2)

The Court stays the case as to Option Care until and
including OCTOBER 30, 2014.

(3)

The parties are directed to file a joint status report
regarding Aiken’s claim against Option Care on or before
OCTOBER 31, 2014.

(4)

Unless the Court is notified that a different course of
action is required, the Court will return Aiken’s claim
against Option Care to active status on NOVEMBER 3, 2014.
DONE and ORDERED in Tampa, Florida, this 22nd day of

11

September, 2014.

Copies to:

All Counsel and Parties of Record

12