Specialty Hospital-Gainesville, Inc., Appellant/Cross-Appellee,
Charles Barth, Appellee/Cross-Appellant.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Alachua County. Monica J.
Jennifer Cates Lester and John D. Jopling of Dell Salter,
P.A., Gainesville, for Appellant/Cross-Appellee.
S. Edwards of Edwards & Ragatz, P.A., Jacksonville;
Rebecca Bowen Creed of Creed & Gowdy, P.A., Jacksonville,
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.
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, 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.
reverse in both appeals. We hold that under Bohannon v.
Shands Teaching Hosp. & Clinics, Inc.,
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.
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
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
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. The trial court denied Mr. Barth's
motion for summary judgment.
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.
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.
following evidence was presented in the two-week jury trial.
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
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.
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.
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.
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.
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."
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
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."
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.
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
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 ...