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Specialty Hospital-Gainesville, Inc. v. Barth

Florida Court of Appeals, First District

July 15, 2019

Specialty Hospital-Gainesville, Inc., Appellant/Cross-Appellee,
Charles Barth, Appellee/Cross-Appellant.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Alachua County. Monica J. Brasington, Judge.

          Jennifer Cates Lester and John D. Jopling of Dell Salter, P.A., Gainesville, for Appellant/Cross-Appellee.

          Thomas S. Edwards of Edwards & Ragatz, P.A., Jacksonville; Rebecca Bowen Creed of Creed & Gowdy, P.A., Jacksonville, for Appellee/Cross-Appellant.

          B.L. THOMAS, J.

         Appellant/Cross Appellee Specialty Hospital-Gainesville appeals a final judgment awarding Appellee/Cross Appellant Charles Barth damages under section 415.1111, Florida Statutes, which provides a cause of action for a vulnerable adult against "any perpetrator" where the vulnerable adult has been "abused, neglected, or exploited as specified in this chapter" (emphasis added). Mr. Barth filed a complaint asserting damages under this theory and sought damages for medical malpractice under chapter 766, Florida Statutes. The jury found Appellant liable for damages on both counts.

         On the medical-malpractice issue, Mr. Barth cross appeals the trial court's ruling designating Heartland of Orange Park as a non- party under Fabre v. Martin[1], and section 768.81(3), Florida Statutes. The jury found that Heartland's negligence was also at fault for medical negligence and damages during Heartland's postoperative treatment of Mr. Barth after he was treated at Specialty Hospital of Gainesville.

         We reverse in both appeals. We hold that under Bohannon v. Shands Teaching Hosp. & Clinics, Inc., [2] an allegation of medical negligence subject to the statutory requirements of chapter 766, Florida Statutes, cannot form the basis of a claim under section 415.1111, Florida Statutes. On the cross appeal, we reverse and hold that Specialty is responsible for the full amount of damages to Mr. Barth on the medical-negligence claim.


         After suffering paralysis during an aortic-aneurism operation at Shands Teaching Hospital and Clinics, Inc., Mr. Barth was transferred to Select Specialty Hospital-Gainesville, a long-term acute-care facility which provides medical treatment to wean patients off breathing ventilators and wound care. Generally, such hospitals focus on patients who are not healthy enough to return home or enter an assisted-living facility, but who need medical treatment for extended time periods. After Mr. Barth was treated at Specialty, where he suffered a deep-tissue pressure ulcer, he was transferred back to Shands and eventually Heartland of Orange Park for treatment of the injury, including surgery to replace necrotic skin and additional surgery necessitated by the infections.

         Mr. Barth later brought a two-count civil suit against Specialty of Gainesville. Count I of the amended complaint alleged Specialty committed medical malpractice by failing to reposition Mr. Barth or otherwise prevent avoidable pressure ulcers, causing catastrophic injuries. The parties stipulated that Mr. Barth complied with the applicable pre-suit notice requirements under chapter 766, Florida Statutes, for this count.

         Specialty Hospital pled comparative fault by a non-party tortfeasor as an affirmative defense, which identified Heartland of Orange Park Florida as a subsequent treater of Mr. Barth. Mr. Barth filed a motion for summary judgment on Specialty 's comparative fault defense, arguing that Specialty was liable for any negligence of subsequent treating providers because Specialty caused the injury under Stuart v. Hertz Corp.[3] The trial court denied Mr. Barth's motion for summary judgment.

         Count II alleged Specialty abused and neglected Mr. Barth in violation of the Adult Protective Services Act, Sections 415.101-415.113, Florida Statutes, by improperly restraining Mr. Barth and by not responding to his calls for assistance, even when he believed he was suffocating or choking. Count II alleged that Mr. Barth was a "vulnerable adult" and that Specialty was a "caregiver," as those terms are defined in section 415.102, Florida Statutes.

         Specialty Hospital moved to dismiss Count II, arguing that it described medical negligence and therefore could not support a cause of action under Bohannon and section 415.1111, Florida Statutes. The trial court denied Specialty's motion to dismiss and denied a later motion for summary judgment that made the same argument. Specialty moved in limine to prohibit Mr. Barth from entering expert medical testimony to prove his Chapter 415 claim, which the trial court granted.

         The following evidence was presented in the two-week jury trial.

         Carol Snyder, a wound care nurse, testified that Mr. Barth developed a Stage II deep-tissue sacral bedsore at Specialty's facility. She testified that once any bedsore is discovered, regardless of stage, it should be assessed and documented every shift. She said Mr. Barth was given a specialty bed and Tegaderm was placed on the wound to absorb drainage.

         The parties stipulated that Mr. Barth's medical expenses were $363, 531.24. Specialty admitted that the medical costs were reasonable and necessary but denied causing the need for the entire amount of medical treatment.

         Mackenzie Slay, corporate representative for Specialty, testified that Mr. Barth developed bedsores at Specialty's facility and that Specialty was noncompliant with policies and procedures. She testified that daily individualized orders are required for restraints and that improper use of restraints is abusive and enhances the risk of injuries. She stated it is against Specialty's policy to fail to respond to call button requests or to place call buttons out of reach. She said timely repositioning of patients is the best way to prevent deep tissue bedsores and is especially important for patients in restraints, and that paraplegics are known to have a high risk for developing bedsores.

         Karen Harrison, a registered nurse, testified that patients at Specialty's facility are at high risk for bedsores due to the type of facility. She said that had an incident report been filed, nurses should have quickly attended to Mr. Barth.

         Dr. Shahrzad Grey, MD, a treating physician at Heartland, testified by deposition that Mr. Barth arrived at Heartland on June 1, 2012 and stayed there until August 13. She testified that Mr. Barth's records indicated a Stage II sacral wound when Mr. Barth was discharged from Specialty's facility. Dr. Grey had no opinion, however, on where or how Mr. Barth developed his pressure sores. Dr. Grey testified that the wound care team at Heartland later noted Mr. Barth's sacral injury as a Stage IV wound.

         Dr. Grey testified that the sacral wound was noted as "suspected deep tissue injury" the day after Mr. Barth was admitted to Heartland, and "did not make any change" at Heartland. When asked, "you're saying he was always a Stage IV the whole time he was at Heartland?" she answered: "Based on what I see here, the PUSH score is a 16 the whole time."

         Joyce Black, Ph.D., an expert on deep-tissue injury, opined that Specialty failed to prevent Mr. Barth's deep-tissue pressure ulcer which manifested in their care. She stated that the wound was avoidable. Dr. Black testified that Specialty's nurses failed to turn Mr. Barth from side to side to prevent excessive pressure on the sacral area of his body which caused the deep-tissue injury. She also testified that Specialty's nurses failed to follow doctors' orders and applicable protocols to treat pressure injuries. She testified that because Mr. Barth was not turned regularly at Specialty's facility, he developed the injury which required multiple surgeries to attempt to heal those injuries. Dr. Black was not critical of Mr. Barth developing a Stage I wound at Specialty, calling it a warning sign, but opined that nurses were negligent after learning of the wound. Dr. Black testified that although restraint of Mr. Barth's arms was "the last option" to deal with confused or agitated patients, Specialty attempted nothing else.

         Dr. Black testified about Mr. Barth's treatment at Heartland, where Mr. Barth was transferred for aggressive treatment of his sacral wound. She testified she would have applied different bandages than Heartland used, but she said "in the end it wouldn't have changed the outcome."

         On cross-examination, Dr. Black reiterated that "failure to move [Mr. Barth] is where the negligence is." Dr. Black opined that Shands incorrectly assessed Mr. Barth's wound as a Stage II pressure sore when it received him after discharge from Specialty, because the injury was a full-thickness wound when Mr. Barth arrived at Shands. Dr. Black admitted she did not notice Mr. Barth had to wait fifty-six days at Heartland before getting a specialty mattress or that in the seventy-four days Mr. Barth was at Heartland, there were only two references to repositioning Mr. Barth. She testified that if true, such conduct would constitute breaches of the standard of care.

         Mr. Barth testified by video deposition that he was admitted to Shands for aortic-aneurism repair but was rendered a paraplegic during the procedure. Mr. Barth's first concrete memory of Specialty's facility was of his arms being tied down to the sides of the bed with a breathing tube in his neck. He testified that the glass across his room was reflective and he could see nurses laughing and joking about whether anyone would respond to his button calls, saying "it was a game to them." He said he had no memory of ever being repositioned by Specialty's staff. He said that whenever he was unable to breathe, he threw things into the hall and pulled out his monitor wires to get nurses to come in, but they would just lecture him and tighten his restraints.

         Maggie Barth, Mr. Barth's daughter, testified that her father was put in restraints the day he was admitted to Specialty, and that when she arrived each morning, he would be lying on his back. When cross-examined about injuries found at other facilities, Ms. Barth said, "You guys [Specialty] just did the sacral wound." She agreed Heartland should have prevented Mr. Barth from developing ...

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