Hunt v. Gualtieri et al
Filing
22
ORDER: Defendant Sheriff Bob Gualtieri's Motion to Dismiss Plaintiff's Amended Complaint (Doc. # 4 ) is denied. Defendant Maxim Physician Resources, LLC's Motion to Dismiss Plaintiff's Amended Complaint (Doc. # 3 ) is granted in part and denied in part. Counts VII and VIII of the Amended Complaint are dismissed. Signed by Judge Virginia M. Hernandez Covington on 12/2/2016. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KATHLEEN HUNT,
Plaintiff,
v.
Case No. 8:16-cv-509-T-33AAS
BOB GUALTIERI, et al.,
Defendants.
_____________________________/
ORDER
This cause comes before the Court pursuant to Defendant
Maxim Physician Resources, LLC’s Motion to Dismiss (Doc. # 3)
and Defendant Sheriff Bob Gualtieri’s Motion to Dismiss (Doc.
# 4), both filed on March 2, 2016. Plaintiff, Kathleen Hunt,
as Personal Representative of the Estate of George Arthur
Hunt, IV, filed a responses to Maxim’s Motion (Doc. # 5) and
Sheriff Gualtieri’s Motion (Doc. # 6). For the reasons that
follow,
the
Court
denies
Sheriff
Gualtieri’s
Motion
and
grants in part and denies in part Maxim’s Motion.
I.
Background
On May 18, 2013, following an arrest for driving under
the influence, Mr. Hunt was transported to the Sheriff’s
Office breathalyzer facility and then to Pinellas County
Jail. (Doc. # 1 at ¶¶ 21-22). Mr. Hunt arrived at Pinellas
1
County Jail at approximately 8:00 P.M. on the evening of May
18, 2013. (Id. at ¶ 23). Thereafter, a Sheriff’s employee,
Nurse
Cruz
of
the
Pinellas
County
Jail
medical
staff,
performed an interview and screening of Mr. Hunt. (Id. at ¶
25). At that time, Mr. Hunt advised Nurse Cruz that he was
under a physician’s care, had been told he suffered from liver
problems, and had started to become yellow about a week
before. (Id.)
The Amended Complaint alleges Nurse Cruz consulted with
a nurse supervisor about Mr. Hunt’s condition. (Id. at ¶ 26).
Nurse Cruz described Mr. Hunt as having “very obvious” yellow
coloring with jaundice, “a tongue strawberry in color,” and
“generalized jaundice from head to toe.” (Id. at ¶ 27).
Despite her knowledge of the duration and severity of Mr.
Hunt’s jaundiced condition, Nurse Cruz and her supervisor
cleared Mr. Hunt for admission to the jail at approximately
10:30 P.M. (Id. at ¶¶ 28).
Subsequently, Mr. Hunt became “unsteady” and was given
a wheelchair. (Id. at ¶ 29). Deputy Fox saw Mr. Hunt and
described his extreme yellow discoloration as the worst he
had ever seen. (Id. at ¶ 30). Mr. Hunt was assigned to a
medical unit, in a single cell, isolated from contact with
others because of his profound jaundice. (Id. at ¶ 32). In
2
addition, the supervising nurse determined that Mr. Hunt
should be released on his own recognizance to a hospital
emergency room as soon as it was legally possible to do so.
(Id. at ¶ 35).
At approximately 10:30 P.M., Nurse Cruz contacted the
off-site,
on-call
physician,
Dr.
Quinones,
by
telephone
regarding Mr. Hunt’s medical condition. (Id. at ¶ 38). Dr.
Quinones is a physician who provided medical services on a
temporary basis to the jail, pursuant to its contract with
Dr. Quinones’ employer, Maxim. (Id. at ¶¶ 18-19). Maxim
contracted with Sheriff Gualtieri “to provide fully licensed
and skilled on-call physicians to provide medical care to the
inmates at the Pinellas County Jail.” (Id. at ¶ 128). Although
Maxim employed him as an on-call physician, Dr. Quinones “was
only licensed to practice in an area of critical need for the
Florida Department of Corrections under the supervision of
its physicians and was never licensed to practice for [Maxim],
[Sheriff Gualtieri] or at the Pinellas County Jail.” (Id. at
¶ 133).
During his phone call with Nurse Cruz, Dr. Quinones
ordered medications for Mr. Hunt and directed that Nurse Cruz
call back in one hour with an update on Mr. Hunt’s condition
and vital signs. (Id. at ¶¶ 41, 63). Despite Dr. Quinones’s
3
orders to re-check Mr. Hunt at approximately 11:30 P.M., Nurse
Cruz ignored those orders and did nothing. (Id. at ¶ 65).
When Mr. Hunt was placed in the cell in the medical unit
at approximately 10:50 P.M., his condition had very rapidly
declined to the point “he was extremely lethargic and unable
to move himself from the wheelchair onto the bunk or assist
the deputies in any way in doing so.” (Id. at ¶ 33). Deputy
Fox and Corporal Paxson had to lift Mr. Hunt into his bunk.
(Id. at ¶ 33). Although Mr. Hunt was suffering from an
“obvious
and
serious
immediate
medical
medical
intervention,”
condition
Deputy
Fox
that
and
required
Corporal
Paxson failed to seek medical intervention or to take any
other action. (Id. at ¶ 34).
At approximately 12:23 A.M., deputies noticed that Mr.
Hunt had not moved at all in his bunk. (Id. at ¶ 47). Sergeant
Holderbaum was requested to assist in a welfare check of Mr.
Hunt. (Id.) Sergeant Holderbaum, Corporal Paxson, and Deputy
Mobley entered Mr. Hunt’s cell and concluded that Mr. Hunt
was not breathing. (Id. at ¶¶ 48, 49). Despite their training
in cardio pulmonary resuscitation (CPR), Corporal Paxson,
Sergeant Holderbaum, and Deputy Mobley did not check Mr.
Hunt’s pulse, commence CPR, or intervene in any other way.
(Id. at ¶ 50). Instead, they called a medical emergency and
4
did nothing until members of the medical staff arrived. (Id.)
At approximately 12:40 A.M. on May 19, 2013, Lt. Campbell
authorized Mr. Hunt to be released on his own recognizance
for transportation to a medical facility. (Id. at ¶ 51).
Shortly thereafter, paramedics were called, but the jail
medical
staff
and
emergency
medical
personnel
could
not
revive Mr. Hunt. (Id. at ¶ 52). Mr. Hunt was pronounced dead
at approximately 1:03 A.M. on May 19, 2013. (Id.).
On May 15, 2015, Mr. Hunt’s personal representative,
Kathleen Hunt, initiated an action in state court against
Sheriff
Gualtieri,
Maxim,
and
three
Sheriff’s
employees,
Nurse Cruz, Deputy Fox, and Deputy Paxson, which was removed
to this Court as Hunt v. Gualtieri, No. 8:15-cv-1257-T-33EAJ.
On October 5, 2015, this Court dismissed the claims against
Maxim without prejudice and granted Hunt leave to amend. Hunt
v. Gualtieri, Doc. # 55, No. 8:15-cv-1257-T-33EAJ (M.D. Fla.
Oct. 5, 2015). On October 19, 2015, Hunt then filed the
operative forty-two page, nine-count Amended Complaint, which
also includes Dr. Quinones as a defendant. Id. at Doc. # 61.
Subsequently, on March 2, 2016, this Court bifurcated
Counts
IV-X
against
Sheriff
Gualtieri,
Maxim,
and
Dr.
Quinones, from the original action and stayed this action.
Id. at Doc. # 104. After the disposition of the original
5
action, this action was reopened on August 22, 2016. (Doc. #
9). Thus, the only counts currently before this Court are
Counts
IV-X
against
Sheriff
Gualtieri,
Maxim,
and
Dr.
Quinones. The Motions are ripe for review.
II.
Legal Standard Fed. R. Civ. P. 12(b)(6)
On a motion to dismiss, this Court accepts as true all
the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this
Court
favors
the
plaintiff
with
all
reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”).
However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). Further, courts are not “bound to accept
6
as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
In
accordance
with
Twombly,
Federal
Rule
of
Civil
Procedure 8(a) calls “for sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting
Twombly, 550 U.S. at 570). A plausible claim for relief must
include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
Further, “[a]fter Iqbal it is clear that there is no
‘heightened
pleading
standard’
as
it
relates
to
cases
governed by Rule 8(a)(2), including civil rights complaints.
All that remains is the Rule 9 heightened pleading standard.”
Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010).
III. Analysis
Hunt
Maxim,
brings
and
Dr.
seven
counts
Quinones.
against
The
Sheriff
counts
Gualtieri,
against
Sheriff
Gualtieri, in his official capacity as Sheriff of Pinellas
County, include: Count IV under 42 U.S.C. § 1983, Count V for
medical negligence, and Count VI for general negligence. The
counts
against
Maxim
include:
Count
VII
for
breach
of
contract, Count VIII for general negligence, and Count IX for
7
medical negligence. The one count against Dr. Quinones, Count
X, is for medical negligence. The Court addresses the claims
in turn.
A. Count IV, 42 U.S.C. § 1983 against Sheriff Gualtieri
It is well-established that “a municipality may not be
held
liable
under
§
1983
solely
because
it
employs
a
tortfeasor.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520
U.S. 397, 403 (1997). Rather, to recover damages from the
Sheriff
under
constitutional
municipality
§
1983,
rights
had
a
Hunt
must
custom
“(1)
violated;
were
show:
(2)
or
policy
that
that
that
[his]
the
constituted
deliberate indifference to that constitutional right; and (3)
that the policy or custom caused the violation.” McDowell v.
Brown, 392 F.3d 1283, 1289 (11th Cir.2004)(citing City of
Canton v. Harris, 489 U.S. 378, 388 (1989)).
This Court has already determined in the companion case
that the Amended Complaint sufficiently pleads the existence
of a constitutional violation. Hunt v. Gualtieri, No. 8:15cv-1257-T-33EAJ, 2016 WL 1077361, at *3 (M.D. Fla. Mar. 18,
2016)(“Plaintiff has properly alleged the violation of Mr.
Hunt’s
constitutional
rights
under
the
Fourteenth
Amendment.”). Thus, Sheriff Gualtieri focuses his argument on
the second and third elements.
8
A
plaintiff
municipality
seeking
under
§
to
1983
impose
must
liability
identify
a
on
a
particular
municipal “policy” or “custom” that caused the constitutional
injury. Bd. of Cty. Comm’rs of Bryan Cty., 520 U.S. at 403.
A policy is a decision that is officially adopted
by the municipality, or created by an official of
such rank that he or she could be said to be acting
on behalf of the municipality. . . . A custom is a
practice that is so settled and permanent that it
takes on the force of law.
Wayne v. Jarvis, 197 F.3d 1098, 1105 (11th Cir. 1999) (quoting
Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.
1997)); see also Griffin v. City of Opa–Locka, 261 F.3d 1295,
1307 (11th Cir. 2001). Hunt must show that a county policy or
custom
was
the
constitutional
“moving
violation
force”
in
that
order
to
caused
the
alleged
establish
Sheriff
Gualtieri’s § 1983 liability. McElligott v. Foley, 182 F.3d
1248, 1259 (11th Cir. 1999); Young v. City of Augusta, GA.,
59 F.3d 1160, 1171 (11th Cir. 1995).
First, Sheriff Gualtieri contends that Hunt has not
sufficiently pled similar circumstances to establish a policy
or custom of the Sheriff’s releasing sick inmates to avoid
health care costs. While the Amended Complaint states that
the implementation of the alleged policy was “not uncommon”
and “happened numerous times” prior to Mr. Hunt’s death, Hunt
9
acknowledges that she “is unable to provide the specific names
of any other similarly situated persons.” (Doc. # 1 at ¶ 96).
Case law cited by Sheriff Gualtieri underscores the
importance of similar events to establishing a municipal
entity’s policy or custom. See, e.g., Mercado v. City of
Orlando,
summary
407
F.3d
judgment
1152,
for
1162
City
(11th
because
Cir.
2005)(affirming
“[d]uring
discovery,
[plaintiff] was given a list of all cases involving excessive
force, but he cannot show that any of them involved factual
situations that are substantially similar to the case at
hand”); McDowell v. Brown, 392 F.3d 1283, 1290–91 (11th Cir.
2004)(“Simply
put,
this
isolated
incident,
however
unfortunate, does not demonstrate evidence of the County’s
‘persistent’ or ‘widespread’ policy of understaffing the Jail
so as to delay the transfer of inmates to Grady.”); MacMillan
v. Roddenberry, No. 5:08-cv-351-Oc-10GRJ, 2010 WL 668281, at
*3 (M.D. Fla. Feb. 19, 2010)(granting summary judgment for
Sheriff where “none of the complaints [of other excessive
force incidents] presented here involved factual situations
that are substantially similar to the case at hand”). But the
cases cited by Sheriff Gualtieri were decided at the summary
judgment stage, after the plaintiffs had the benefit of
discovery to establish a pattern of similar incidents.
10
Thus, while Sheriff Gualtieri’s point is well taken, his
argument is more appropriate at the summary judgment stage
after Hunt has had the opportunity for discovery. See Holder
v. Gualtieri, No. 8:14-cv-3052-T-33JSS, 2015 WL 4079844, at
*4 (M.D. Fla. July 6, 2015)(“As the existence of such a custom
is largely a fact-based issue, the Sheriff’s arguments would
be better suited at the summary judgment stage when Holder
has been afforded additional discovery.”). Hunt alleges that
the release of sick inmates to avoid medical costs was “not
uncommon,” and, in fact, was a “pervasive and longstanding”
policy. (Doc. # 1 at ¶¶ 96-97). For this stage, “[p]leading
on information [and] belief is still permissible where, as
here, the facts are ‘peculiarly within the possession and
control of the defendant.’” Belik v. Carlson Travel Grp.,
Inc., 864 F. Supp. 2d 1302, 1311 (S.D. Fla. 2011)(quoting
Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.
2010)).
Furthermore, the Amended Complaint recites the costcutting history of the Sheriff’s Department, as well as
Sheriff Gualtieri’s comment that “In reality, most inmates
can’t pay” to reimburse the Sheriff for their medical costs,
which arguably displays a hostility towards paying for inmate
medical care. (Doc. # 1 at ¶¶ 91-93); see also Jenkins v.
11
Manatee
Cty.
Sheriff,
No.
8:13-cv-2796-T-30TGW,
2014
WL
105133, at *5 (M.D. Fla. Jan. 10, 2014)(denying motion to
dismiss because “Plaintiff alleges that it was [Defendant’s]
widespread custom, policy, and practice to save money by
discouraging its staff from referring inmates with complaints
of serious medical conditions to its physicians and outside
medical practitioners or facilities for examination and/or
treatment”).
Viewing the allegations in the light most favorable to
Hunt, the Court finds that Hunt has sufficiently pled the
existence
of
a
policy
or
custom
within
the
Sheriff’s
Department. Cf. Buckley v. Barbour Cty., Ala., 624 F. Supp.
2d 1335, 1343–44 (M.D. Ala. 2008)(“But even if a policy or
custom which is not unconstitutional on its face requires
“‘considerably more proof than the single incident’” to infer
a policy or custom, the County’s argument is more appropriate
at the summary judgment stage. The allegations blaming the
County’s wider practice or custom to forego training, thus,
amount to more than speculation, and the § 1983 claim against
the County will survive a motion to dismiss.”).
Nevertheless, Sheriff Gualtieri contends that, even if
such a policy or custom of releasing inmates to avoid medical
costs did exist, Mr. Hunt’s death was not caused by that
12
policy. (Doc. # 4 at 10). Mr. Hunt stopped breathing, and
likely died, while still in the custody of the Pinellas County
Jail. (Id.). Furthermore, Sheriff Gualtieri emphasizes that
the jail
staff
provided
Mr.
Hunt
with
medication
and
a
wheelchair, and placed him in a medical cell for closer
observation. (Id. at 18). Thus, Mr. Hunt received medical
care in the jail, where he ultimately died without having
been released on his own recognizance. Therefore, Sheriff
Gualtieri reasons, a policy of releasing sick inmates before
sending them to the emergency room could not be the cause of
Mr. Hunt’s death.
Hunt replies that Mr. Hunt’s death was caused by the
policy
of
releasing
the
sickest
prisoners
on
their
own
recognizance in order to ration health care, even though Mr.
Hunt
was
not
released
until
after
deputies
found
him
unresponsive and called a medical emergency. Specifically,
Hunt contends that jail employees delayed further treatment
of Mr. Hunt because they intended to release Mr. Hunt within
a short time, in accordance with the alleged policy. (Doc. #
1 at ¶ 95). Furthermore, Hunt alleges that the deputies and
staff of the jail did not perform in-person welfare checks on
Mr. Hunt, instead using less costly video surveillance, which
did not provide sufficient detail of Mr. Hunt to alert staff
13
that medical intervention was necessary. (Doc. # 1 at ¶ 114);
see also Nam Dang v. Sheriff of Seminole Cty., Fla., 38 F.
Supp. 3d 1333, 1340 (M.D. Fla. 2014)(“It is alleged that the
lack of suitable training and staffing of medical personnel
at the jail was the result of deliberate cost-cutting efforts
by the Sheriff. Accordingly, the allegations of the Amended
Complaint are sufficient to sustain a § 1983 claim against
the Sheriff.”). According to Hunt, that limited observation
and delay in treatment were the cause of Mr. Hunt’s death.
(Doc. # 1 at ¶¶ 99-101).
At the motion to dismiss stage, the Court finds that
Hunt has sufficiently pled a purported policy of releasing
prisoners
to
avoid
medical
costs
that
resulted
in
the
allegedly sub-standard medical care and observation Mr. Hunt
received at the Pinellas County Jail. See Holder, 2015 WL
4079844, at *4 (“While the Sheriff contends that no facts
have been asserted to sustain a claim under section 1983
municipal
liability,
the
Court
finds
that
Holder
has
satisfied his burden, at this stage, of alleging a custom or
usage
with
force
of
law.”).
If
these
allegations
are
established, Hunt will have shown that Sheriff Gualtieri
maintained a custom sufficient to create municipal liability.
See Fundiller v. City of Cooper City, 777 F.2d 1436, 1443
14
(11th Cir. 1985)(“The complaint states that the City of Cooper
City has a custom of allowing the use of excessive force. If
established, this allegation provides the requisite fault on
the part of the City . . . thereby establishing a ‘custom’
within the meaning of Monell.”).
B. Counts V and VI, General and Medical Negligence
against Sheriff Gualtieri
Florida Statutes Section 766.106 defines a claim for
“medical negligence” or “medical malpractice” as “a claim
arising out of the rendering of, or the failure to render,
medical
care
or
services.”
Fla.
Stat.
§
766.106(1)(a).
Section 766.202(7) further defines “medical negligence” as
“medical malpractice, whether grounded in tort or contract.”
Fla. Stat. § 766.202(7). “In order to qualify as a medical
malpractice claim, the wrongful act alleged ‘must be directly
related to the improper application of medical services and
the use of professional judgment or skill.’” Horst v. Parker,
No. 6:07-cv-612-Orl-19KRS, 2007 WL 4557243, at *2 (M.D. Fla.
Dec. 21, 2007)(citing Quintanilla v. Coral Gables Hosp.,
Inc., 941 So. 2d 468, 469 (Fla. 3d DCA 2006)). Additionally,
the alleged injury “must be a direct result of receiving
medical
care
or
treatment
by
the
healthcare
provider.”
Goldman v. Halifax Med. Ctr., Inc., 662 So. 2d 367, 371 (Fla.
15
5th DCA 1995).
If a plaintiff needs to rely on the medical negligence
standard
of
care
in
proving
his
or
her
case,
then
the
plaintiff’s claim is “one for medical negligence and subject
to the pre-suit and screening requirements of Florida Statute
chapter 766.” Corbo v. Garcia, 949 So. 2d 366, 370 (Fla. 2d
DCA 2007)(holding that plaintiff could not show negligence
without showing defendants were negligent in their medical
treatment of plaintiff; therefore, plaintiff’s claim was one
for medical negligence and subject to the pre-suit screening
requirements of Chapter 766).
However, a plaintiff is not barred from asserting an
ordinary negligence claim as long as he or she does not rely
on the medical negligence standard of care. Feifer v. Galen
of Fla., Inc., 685 So. 2d 882, 885 (Fla. 2d DCA 1996); see
also
Quintanilla,
negligence
claim
941
where
So.
2d
at
plaintiff
470
(allowing
sustained
ordinary
injuries
when
nurse spilt hot tea on him and was “not injured as a direct
result of receiving medical care” because “the process of
serving
the
hot
tea
did
not
require
medical
skill
or
judgment”); Christie v. Lee Cty. Sheriff’s Office, No. 2:10cv-420-FtM-36DNF, 2011 WL 4501953, at *4 (M.D. Fla. Sept. 28,
2011)(“In
certain
circumstances,
16
a
plaintiff
may
have
a
cognizable claim for ordinary negligence in conjunction with
his or her medical treatment.”)(citing Tenet St. Mary’s Inc.
v. Serratore, 869 So. 2d 729, 730-31 (Fla. 4th DCA 2004)).
Under
the
ordinary
negligence
claim,
the
Amended
Complaint lists a number of ways in which non-medical staff
of Sheriff Gualtieri were allegedly negligent, including:
“failing to reasonably transport [Mr. Hunt] to an emergency
medical facility,” “abandoning [Mr. Hunt] in a medical cell
when he was clearly in medical distress and in need of
emergency medical evaluation and treatment,” “not summoning
medical
staff
for
further
medical
evaluation,”
“not
effectively conducting the required 15 minute welfare checks
while [Mr. Hunt] was in the isolation cell,” and “using camera
equipment that in low light conditions make it difficult or
impossible to detect if an inmate is breathing and deprive
the evaluator of the ability to hear the inmate and conduct
two way communication.” (Doc. # 1 at ¶ 114).
There
is
a
distinction
between
claims
based
“on
negligent ‘diagnosis, treatment or care,’ as contemplated by
the medical malpractice statute, and allegations concerning
the proper performance of the sheriff’s custodial obligations
to an inmate.” Darling v. Palm Beach Cty. Sheriff, 2 So. 3d
368, 369 (Fla. 4th DCA 2008). In her ordinary negligence
17
claim, Hunt alleges that Sheriff Gualtieri’s deputies were
negligent in their performance of welfare checks of Mr. Hunt
and in their use of a camera with a low-quality image to
monitor inmates in medical isolation cells. This allegation
questions Sheriff Gualtieri’s performance of his custodial
duties, rather than medical staff’s treatment and care of Mr.
Hunt. See Kelley v. Rice, 670 So. 2d 1094, 1095-97 (Fla. 2d
DCA
1996)(concluding
“that
[plaintiff]
has
sufficiently
asserted a cause of action for [the Sheriff’s] alleged simple
negligence in carrying out his custodial duties to survive a
motion
to
dismiss”
where
Sheriff
failed
“to
see
that
[plaintiff] was furnished medical care” while in jail).
Furthermore, Hunt alleges that Sheriff Gualtieri was
negligent when deputies at the Pinellas County Jail failed to
call for medical assistance for Mr. Hunt earlier, although he
was visibly ill. (Doc. # 1 at ¶ 114). This claim turns on the
proper performance of Sheriff Gualtieri’s custodial duties,
rather than medical treatment and diagnoses. The Court does
not agree with Sheriff Gualtieri that “[t]he purported action
or inaction of non-medical employees, specifically detention
deputies, cannot form the basis for general negligence for
failures to provide medical evaluations or care.” (Doc. # 4
at 16). If that were the case, a detention deputy would never
18
be negligent in failing to call for medical attention for an
inmate, even one who is bleeding profusely, because a decision
to seek medical attention would involve “medical evaluations
or care.” Rather, the Court finds that the Amended Complaint
“state[s] a claim for ordinary negligence in the failure to
secure appropriate medical treatment for [Mr. Hunt] while
[he] was incarcerated.” Nobles v. Corr. Corp. of Am., No.
4:07cv288-SPM/WCS, 2008 WL 686962, at *1 (N.D. Fla. Mar. 12,
2008).
Regarding
the
medical
negligence
claim,
Sheriff
Gualtieri argues that Hunt has failed to allege any “facts to
support [that] any medical staff ‘ignored Mr. Hunt’s rapidly
deteriorating medical condition.’” (Doc. # 4 at 19).
Hunt
alleges that Sheriff Gualtieri’s medical staff, including
Nurse Cruz, breached the standard of care for similar health
care professionals in numerous ways, including among others:
“by
failing
licensed,”
to
“by
insure
that
ignoring
Mr.
its
physicians
Hunt’s
rapidly
.
.
.
were
deteriorating
medical condition,” “by failing to timely re-evaluate Mr.
Hunt’s medical condition and provide medical intervention in
a timely manner,” “by failing to call the on call physician
again
for
further
guidance,
re-evaluation
and/or
instruction,” and “by failing to transport Mr. Hunt to an
19
emergency room.” (Doc. # 1 at ¶ 124).
The Amended Complaint alleges that Nurse Cruz failed to
follow-up with Dr. Quinones regarding Mr. Hunt’s medical
condition one hour after administering Mr. Hunt medication as
she was advised to do by Dr. Quinones. (Id. at ¶ 65). Taking
all allegations in the light most favorable to Hunt, a failure
to follow-up with the on-call physician regarding the medical
condition of a sick patient — especially, when told to follow
up
by
a
supervisor
—
may
fall
below
the
applicable
professional standard of care. Thus, at this juncture, Hunt
has properly stated a claim that at least some actions of
Sheriff
Gualtieri’s
medical
staff
fell
below
their
professional standard of care.
Therefore, Hunt’s claims for ordinary negligence and
medical
negligence
against
Sheriff
Gualtieri
survive
the
motion to dismiss stage.
C. Counts IX and X, Medical Negligence against Maxim
and Dr. Quinones
As
a
preliminary
matter,
the
Court
notes
that
Dr.
Quinones is properly included as a party in this case pursuant
to the Court’s March 2, 2016, Order in the companion case, in
which the Court granted Hunt’s motion for leave to add Dr.
Quinones. Hunt v. Gualtieri, Doc. # 100, No. 8:15-cv-1257-T-
20
33EAJ (M.D. Fla. Mar. 2, 2016). Therefore, the Court will
analyze the medical negligence claims against Maxim and Dr.
Quinones together.
A
plaintiff
that
relies
on
the
medical
negligence
standard of care in proving his or her case must comply with
certain procedural requirements of Florida Statutes Chapter
766. Fassy v. Crowley, 884 So. 2d 359, 364 (Fla. 2d DCA 2004).
Prior to initiating a lawsuit, the plaintiff must provide the
defendant with a notice of intent to sue, Fla. Stat. §
766.106(2), and conduct a pre-suit screening, Fla. Stat. §
766.203(2). “No suit may be filed for a period of 90 days
after the notice is mailed to any prospective defendant.”
Fla. Stat. § 766.106(3)(a). During this time, “the statute of
limitations is tolled as to all potential defendants.” Fla.
Stat. § 766.106(4).
“If the court finds that the notice of intent to initiate
litigation mailed by the claimant does not comply with the
reasonable investigation requirements of ss. 766.201-212 . .
., the court shall dismiss the claim . . . .” Fla. Stat. §
766.206(2); see also Goldfarb v. Urciuoli, 858 So. 2d 397,
398-99
(Fla.
1st
DCA
2003)(holding
a
complaint
alleging
medical malpractice is properly dismissed if the pre-suit
requirements
are
not
satisfied).
21
Consequently,
if
a
plaintiff’s suit is one for malpractice rather than ordinary
negligence and the pre-suit requirements have not been met,
a plaintiff’s suit should be dismissed with leave to file an
amended
complaint
after
complying
with
the
statutory
perquisites to bringing suit. See Kukral v. Mekras, 679 So.
2d 278, 283 (Fla. 1996); S. Neurological Assocs., P.A. v.
Fine, 591 So. 2d 252, 255 (Fla. 4th DCA 1991).
However, the Florida Supreme Court has advised that “the
medical
malpractice
statutory
scheme
must
be
interpreted
liberally so as not to unduly restrict a Florida citizen’s
constitutionally guaranteed access to the courts, while at
the same time carrying out the legislative policy of screening
out frivolous lawsuits and defenses.” Kukral, 679 So. 2d at
284; see also Michael v. Med. Staffing Network, Inc., 947 So.
2d
614,
619
“increasingly
(Fla.
3d
disturbing
DCA
trend
2007)(disapproving
of
prospective
of
the
defendants
attempting to use the statutory requirements as a sword
against plaintiffs”).
Here, the Court previously granted Hunt leave to amend
in order to comply with the pre-suit notice requirements. See
Hunt v. Gualtieri, Doc. # 55, No. 8:15-cv-1257-T-33EAJ (M.D.
Fla. Oct. 5, 2015). In the Amended Complaint, Hunt states
that she served notices of intent on Sheriff Gualtieri on
22
December 16, 2013, “has complied with the medical malpractice
pre-suit requirements” in doing so, and that the “notices of
intent were sufficient to provide notice to” Maxim and Dr.
Quinones. (Doc. # 1 at ¶¶ 4-7).
Maxim acknowledges that Hunt sent a notice of intent to
Sheriff Gualtieri, but argues that this was not sufficient
notice to Maxim. (Doc. # 3 at 12-13). Additionally, Maxim
acknowledges that Hunt sent it a separate notice on August
14, 2015, before the running of the statute of limitations.
(Id. at 11). However, Maxim argues that that notice was void
because
it
omitted
the
ex-parte
interview
authorization
included in Section 766.1065, Fla. Stat. (Id.). Maxim argues
that the corrected notices of intent sent by Hunt to Maxim
and Dr. Quinones on September 11, 2015, were untimely, and
thus Hunt’s medical negligence claims should be dismissed
with prejudice as the statute of limitations has run. (Id. at
12).
In response, Hunt urges that the timely pre-suit notice
provided to Sheriff Gualtieri was sufficient to put Maxim and
Dr. Quinones on notice of her claim because of the contractual
relationship between Sheriff Gualtieri and Maxim. (Doc. # 5
at 9-10); see also Michael, 947 So. 2d at 618, 621 (noting
that Florida Rule of Civil Procedure 1.650(b) “provides that
23
notice to any prospective defendant can be imputed to those
persons or entities in a legal relationship with the noticed
defendant” and remanding to trial court for determination
whether
a
sufficient
legal
relationship
existed
between
hospital and defendant medical staffing company with which
the hospital contracted). Hunt notes that Sheriff Gualtieri
was the employer of Nurse Cruz whom Hunt also accuses of
medical negligence, so Sheriff Gualtieri would qualify as a
health care provider who must be given pre-suit notice.
Compare Nelson v. Prison Health Servs., Inc., 991 F. Supp.
1452,
1466
(M.D.
Fla.
1997)(stating
that
“[n]either
the
Sheriff in his official capacity nor the County are ‘health
care
providers’”
and
thus
cannot
be
held
liable
for
malpractice because nurses employed by company contracting
with the County committed the alleged medical negligence).
Therefore, Hunt reasons, Sheriff Gualtieri was owed pre-suit
notice before Hunt could bring her claim, and the timely
notice Hunt gave Sheriff Gualtieri put Maxim and Dr. Quinones
on notice because of Maxim’s contractual relationship with
Sheriff Gualtieri.
Next, even if the notice to Sheriff Gualtieri was not
sufficient notice to Maxim, Hunt argues that the statute of
limitations had not run by September 11, 2015, at which point
24
both Maxim and Dr. Quinones received the corrected notices of
intent. (Doc. # 5 at 11). The pre-suit notice provided to
Sheriff Gualtieri tolled the statute of limitations period
for 90 days after the original expiration for all defendants,
including Maxim and Dr. Quinones. See Salazar v. Coello, 154
So. 3d 430, 433 (Fla. 3d DCA 2014)(“We find that the Notices
of Intent received by the surgeon and the hospital . . . did
toll the statute of limitations, not only as to the surgeon
and hospital, but also as to all of Salazar’s defendants,
however denominated (and regardless of whether they received
those notices or not).”).
Additionally, Hunt paid a filing fee and filed a petition
with the clerk of court, which automatically provides a 90
day
extension
limitations
that
period.
should
See
be
added
to
Fla.
Stat.
§
the
statute
of
766.104(2)(“Upon
petition to the clerk of the court where the suit will be
filed and payment to the clerk of a filing fee, not to exceed
$42,
an
automatic
90-day
extension
of
the
statute
of
limitations shall be granted . . . . This period shall be in
addition to other tolling periods.”); see also Hillsborough
Cty. Hosp. Auth. v. Coffaro, 829 So. 2d 862, 863 (Fla.
2002)(holding that “the ninety-day extension of the statute
of limitations purchased under section 766.104(2) is not
25
added to what remains of the original statute of limitations
but
is
added
after”
the
extension
period
under
section
766.106(4)). Therefore, if the running of the two year statute
of limitations period started, at the earliest, on the date
of Mr. Hunt’s death on May 19, 2013, which Hunt disputes, the
90 day tolling period and 90 day extension added together
would extend the period to November 16, 2015, by which time
Hunt
had
served
the
corrected
notices
on
Maxim
and
Dr.
Quinones.
Even if the notice to Sheriff Gualtieri was insufficient
and the statute of limitations had run between the time Hunt
sent the first and second notices of intent to Maxim and Dr.
Quinones, the Court finds that Hunt’s medical negligence
claims still should not be dismissed as she substantially
complied with the statutory pre-suit notice requirements and
Maxim and Dr. Quinones were not prejudiced by the inadvertent
omission in the first notice. Hunt explains that the omission
of the ex-parte interview authorization was a good faith
error, as that language was added to the statute in 2013, and
Hunt
mistakenly
sent
a
notice
with
the
older
statutory
language. (Id. at 12).
Furthermore, Hunt points out that Maxim and Dr. Quinones
have not conducted any ex-parte interviews with Mr. Hunt’s
26
medical providers, even after Hunt sent them the corrected
notice with authorization. (Id. at 13). Therefore, Maxim and
Dr. Quinones were not prejudiced by the timely first notice’s
omission. Furthermore, the Court notes that Maxim has not
cited any authority directly on point that states a failure
to comply with the exact statutory language should result in
dismissal with prejudice.
The
Court
finds
that
the
first
notice
of
intent
substantially complied with the statutory requirements, the
omission
of
the
ex-parte
interview
authorization
was
a
reasonable mistake, and Maxim and Quinones did not suffer any
prejudice as a result of the month delay between the first
notice and the second corrected notice of intent. Cf. Patry
v. Capps, 633 So. 2d 9, 13 (Fla. 1994)(declining to dismiss
because service was not effected by statutorily required
certified mail because “receipt of written notice and lack of
prejudice are conceded”); Popps v. Foltz, 806 So. 2d 583, 585
(Fla. 4th DCA 2002)(reversing dismissal because “although
plaintiff did not comply after the first notice of intent, he
fully complied after the second notice”); Tapia-Ruano v.
Alvarez, 765 So. 2d 942, 943-44 (Fla. 3d DCA 2000)(affirming
dismissal where statute of limitations had run six months
before and plaintiff provided no reason for failure to comply
27
with the pre-suit requirements). Accordingly, the medical
negligence claims should not be dismissed.
D. Count VII, Breach of Contract against Maxim, and Count
VIII, General Negligence against Maxim
Maxim argues that the general negligence and breach of
contract claims are essentially medical malpractice claims
and thus subject to the pre-suit notice requirements for such
claims and duplicative of Count IX. In determining whether a
claim is for general negligence or medical negligence, the
question is “whether the plaintiff must rely upon the medical
negligence standard of care . . . in order to prove the case.”
Tenet S. Fla. Health Sys. v. Jackson, 991 So. 2d 396, 399
(Fla. 3d DCA 2008). “In certain circumstances, a plaintiff
may
have
a
cognizable
claim
for
ordinary
negligence
in
conjunction with his or her medical treatment.” Christie,
2011 WL 4501953, at *4 (citing Tenet St. Mary’s Inc., 869 So.
2d at 730-31).
In
the
Amended
Complaint,
Hunt
states
that
“The
Plaintiff asked Defendant Maxim if they provided medical care
to the Decedent and Defendant Maxim responded that it did not
provide medical care to the Decedent.” (Doc. # 1 at ¶¶ 132,
137).
Maxim,
Rather,
Hunt
particularly
stresses
its
the
hiring
28
businesses
and
practices
licensing
of
of
on-call
physicians for Pinellas County Jail. (Id. at ¶¶ 133, 138).
Thus, the gravamen of Hunt’s claim against Maxim is that Maxim
negligently hired, oversaw, and ensured the licensure of Dr.
Quinones.
Nevertheless, the theory that Mr. Hunt’s death resulted
from Maxim’s failure to oversee Dr. Quinones’s licensure and
treatment
of
inmates
falls
within
the
realm
of
medical
negligence. The breach of contract and ordinary negligence
claims
presuppose
that
Mr.
Hunt’s
death
would
not
have
occurred if Maxim had provided a properly licensed on-call
physician to Pinellas County Jail, instead of Dr. Quinones.
Indeed, both claims assert that as “a direct and proximate
result” of Maxim’s failure to provide a licensed physician,
Mr. Hunt “was caused to die.” (Id. at ¶¶ 134, 139). Thus, the
ordinary negligence claim still refers back to the medical
professional standard of care by calling into question Dr.
Quinones’ medical judgment and treatment of Mr. Hunt. See
Corbo, 949 So. 2d at 370 (noting that the medical negligence
standard of care applied to ordinary negligence claim because
“[plaintiff]
cannot
show
negligence
without
showing
that
petitioners were negligent in their medical treatment of
[plaintiff]”).
The
Court
agrees
that
29
Hunt’s
claims
for
ordinary
negligence
and
breach
of
contract
rely
on
the
medical
negligence professional standard of care and are duplicative
of the medical negligence claim against Maxim in Count IX.
See Lyles v. Osceola Cty., No. 6:11-cv-1585-Orl-36DAB, 2012
WL 4052258, at *4 (M.D. Fla. Sept. 13, 2012)(dismissing claims
for ordinary negligence as duplicative of medical negligence
claim because those claims alleged “negligence arising out of
the failure to render or the delay in rendering medical
services”); Christie, 2011 WL 4501953, at *5 (“This conduct
certainly constitutes a claim arising out of the rendering
of, or the failure to render, medical care or services. As
such, the Court finds Count VI is largely duplicative of Count
VII. Accordingly, Plaintiff has failed to state a claim for
negligence and Count VI will be dismissed.”). Counts VII and
VIII are accordingly dismissed.
IV.
Conclusion
The
Court
denies
Sheriff
Gualtieri’s
Motion.
Additionally, the Court grants Maxim’s Motion to the extent
that Counts VII and VIII are dismissed, but Counts IX and X
survive.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendant Sheriff Bob Gualtieri’s Motion to Dismiss
30
Plaintiff’s Amended Complaint (Doc. # 4) is DENIED.
(2)
Defendant Maxim Physician Resources, LLC’s Motion to
Dismiss Plaintiff’s Amended Complaint (Doc. # 3) is
GRANTED IN PART and DENIED IN PART. Counts VII and VIII
of the Amended Complaint are dismissed.
DONE and ORDERED in Chambers in Tampa, Florida, this 2nd
day of December, 2016.
31
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