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Filing # 117969851 E-Filed 12/10/2020 09:50:14 AM
2010-041
IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT IN AND FOR
ALACHUA COUNTY, FLORIDA
BRENDA SNOW,
Plaintiff(s),
vs. CASE NO.: 01 2020 CA 001350
SHANDS TEACHING HOSPITAL AND
CLINICS, INC. d/b/a UF HEALTH
SHANDS HOSPITAL, A Florida Non-
Profit Corporation and UNIVERSITY OF
FLORIDA BOARD OF TRUSTEES d/b/a
UF HEALTH EYE CENTER, a Florida
Public Body Corporate,
Defendant(s).
ORDER DENYING AND/OR RESERVING RULING ON DEFENDANT.
UNIVERSITY OF FLORIDA BOARD OF TRUSTEES D/B/A UF HEALTH EYE
ENTER’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
AND REQUIRING EVIDENTIARY HEARING
THIS CAUSE having come to be heard upon Defendant, UNIVERSITY OF
FLORIDA BOARD OF TRUSTEES d/b/a UF HEALTH EYE CENTER, a Florida
Public Body Corporate’s, Motion to Dismiss Plaintiff’s Amended Complaint, the Court
having considered the same and argument of counsel, and being otherwise duly informed
in the premises, it is hereby
ORDERED and ADJUDGED that Defendant, UNIVERSITY OF FLORIDA
BOARD OF TRUSTEES d/b/a UF HEALTH EYE CENTER (“UFBOT”), a Florida
Public Body Corporate’s, Motion to Dismiss is hereby DENIED AND/OR RULING IS
RESERVED consistent with this Order.
"2020 CA 001350" 117969851 Filed at Alachua County Clerk 12/10/2020 09:50:19 AM ESTCase No.: 01 2020 CA 001350
1. UFBOT raised four arguments in its Motion to Dismiss that are addressed
individually in this Order:
(a) As to Argument I, UFBOT moved to dismiss Count III of the Amended
Complaint based on Plaintiff’s failure to comply with the presuit screening
requirements of Chapter 766. In Count III, Plaintiff alleges that UFBOT was
negligent under §766.110, Fla. Stat. This provision establishes nonclinical and
administrative duties that must be satisfied by health care facilities. Defendant
correctly contends that because this statutory provision establishes liability for
administrative, non-clinical acts (e.g. adoption of a risk management program) that
are not directly related to the alleged negligent care at issue (e.g. administration of
the retrobulbar alcohol injection) an expert providing an opinion on a violation of
§766.110, Fla. Stat. must meet the requirements of §766.102(7), Fla. Stat. Per
§766.102 (7), Fla. Stat., an expert seeking to provide standard of care opinions as
to “administrative and other nonclinical issues” against a hospital, health care
facility or medical facility must have “substantial knowledge, by virtue of his or
her experience, concerning the standard of care among hospitals, health care
facilities and medical facilities.” In reviewing the detailed curriculum vitae of
Plaintiff’s presuit expert, John W. Shore, MD, it is unclear to the court whether he
does possesses any meaningful experience or “substantial knowledge” on the
adoption or management of a risk management programs in hospitals, health care
facilities or medical facilities. At the hearing, Plaintiff did contend that Dr. Shore
had knowledge by virtue of his risk management experience with Ophthalmic
Mutual Insurance Company (“OMIC”). Both parties agreed that OMIC was a
professional liability insurance company and was not a hospital, health care
facility or medical facility. Depending on what exactly Dr. Shore did at OMIC and
what his job duties were there, he may or may not be qualified to render a standard
of care opinion relative to §766.102(7). Plaintiff shall, within five days, contact the
court’s judicial assistant to schedule an evidentiary hearing so that the Court mayCase No.: 01 2020 CA 001350
make this necessary determination before ruling on Defendant’s motion to dismiss
Count III. Until the evidentiary hearing is concluded, the Court reserves ruling on
whether dismissal of this count is warranted, based on the foregoing argument.
(b) | Defendant’s Argument II also seeks to dismiss Count III of the Amended
Complaint. Defendant contends that UF Health Eye Center was not a health care
facility as contemplated under §766.110, Fla. Stat. Because this issue will be moot
if the court dismisses Count III under Defendant’s previous argument concerning
Dr. Shore’s qualifications, the Court RESERVES ruling on this issue until it is
clear that the argument is not moot.
(c) In Argument II, Defendant argues that Count I and II both assert claims for
failure to provide informed consent to the patient and are repetitive. Defendant’s
motion to dismiss counts I and II based on Argument III is DENIED.
(d) In Argument IV, UFBOT argues that Count II of the Amended Complaint
improperly uses the catch all language of “employees, agents, apparent agents
and/or employees” to describe individuals for whom UFBOT is vicariously liable.
Based on this case being a medical malpractice action, Plaintiff had an opportunity
to engage in presuit discovery, obtain medical records and take the unsworn
statement of relevant health care providers prior to filing the Amended Complaint.
In the context of the medical malpractice case, a plaintiff bears the burden of
identifying the individuals, either by name or conduct, for whom a defendant
entity is vicariously liable. Defendant’s motion to dismiss Count II of the
Amended Complaint is DENIED.
2. Plaintiff shall, within five days, contact the court’s judicial assistant to schedule
an evidentiary hearing on whether Dr. Shore is qualified to provide standard of
care opinions as to “administrative and other nonclinical issues” against a hospital,
health care facility or medical facility under §766.102(7), Fla. Stat.
DONE AND ORDERED on Wednesday, December 9, 2020.Case No.: 01 2020 CA 001350
Monica Brasington, Circuit Judge
01-2020-CA-001350 12/09/2020 03:07:13 PM
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that copies have been furnished by U.S. Mail or via filing with
the Florida Courts E-Filing Portal on Thursday, December 10, 2020.
ANDREA A LEWIS, ESQ FRANCIS E PIERCE, III ESQ
lewisteam@searcylaw.com litpleadings@mateerharbert.com
alewis@searcylaw.com ckozimor@mateerharbert.com
mweschrek@searcylaw.com
Rafael Martinez, Esq. and Wilbert Vancol
rmartinez@mmdorl.com
NOS@mmdorl.com
mcearter@mmdorl.com
wvancol@mmdorl.com
Ruby Dunaway, Judical Assistant
01-2020-CA-001350 12/10/2020 09:50:00 AM
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Filing # 117969851 E-Filed 12/10/2020 09:50:14 AM 2010-041 IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT IN AND FOR ALACHUA COUNTY, FLORIDA BRENDA SNOW, Plaintiff(s), vs. CASE NO.: 01 2020 CA 001350 SHANDS TEACHING HOSPITAL AND CLINICS, INC. d/b/a UF HEALTH SHANDS HOSPITAL, A Florida Non- Profit Corporation and UNIVERSITY OF FLORIDA BOARD OF TRUSTEES d/b/a UF HEALTH EYE CENTER, a Florida Public Body Corporate, Defendant(s). ORDER DENYING AND/OR RESERVING RULING ON DEFENDANT. UNIVERSITY OF FLORIDA BOARD OF TRUSTEES D/B/A UF HEALTH EYE ENTER’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT AND REQUIRING EVIDENTIARY HEARING THIS CAUSE having come to be heard upon Defendant, UNIVERSITY OF FLORIDA BOARD OF TRUSTEES d/b/a UF HEALTH EYE CENTER, a Florida Public Body Corporate’s, Motion to Dismiss Plaintiff’s Amended Complaint, the Court having considered the same and argument of counsel, and being otherwise duly informed in the premises, it is hereby ORDERED and ADJUDGED that Defendant, UNIVERSITY OF FLORIDA BOARD OF TRUSTEES d/b/a UF HEALTH EYE CENTER (“UFBOT”), a Florida Public Body Corporate’s, Motion to Dismiss is hereby DENIED AND/OR RULING IS RESERVED consistent with this Order. "2020 CA 001350" 117969851 Filed at Alachua County Clerk 12/10/2020 09:50:19 AM ESTCase No.: 01 2020 CA 001350 1. UFBOT raised four arguments in its Motion to Dismiss that are addressed individually in this Order: (a) As to Argument I, UFBOT moved to dismiss Count III of the Amended Complaint based on Plaintiff’s failure to comply with the presuit screening requirements of Chapter 766. In Count III, Plaintiff alleges that UFBOT was negligent under §766.110, Fla. Stat. This provision establishes nonclinical and administrative duties that must be satisfied by health care facilities. Defendant correctly contends that because this statutory provision establishes liability for administrative, non-clinical acts (e.g. adoption of a risk management program) that are not directly related to the alleged negligent care at issue (e.g. administration of the retrobulbar alcohol injection) an expert providing an opinion on a violation of §766.110, Fla. Stat. must meet the requirements of §766.102(7), Fla. Stat. Per §766.102 (7), Fla. Stat., an expert seeking to provide standard of care opinions as to “administrative and other nonclinical issues” against a hospital, health care facility or medical facility must have “substantial knowledge, by virtue of his or her experience, concerning the standard of care among hospitals, health care facilities and medical facilities.” In reviewing the detailed curriculum vitae of Plaintiff’s presuit expert, John W. Shore, MD, it is unclear to the court whether he does possesses any meaningful experience or “substantial knowledge” on the adoption or management of a risk management programs in hospitals, health care facilities or medical facilities. At the hearing, Plaintiff did contend that Dr. Shore had knowledge by virtue of his risk management experience with Ophthalmic Mutual Insurance Company (“OMIC”). Both parties agreed that OMIC was a professional liability insurance company and was not a hospital, health care facility or medical facility. Depending on what exactly Dr. Shore did at OMIC and what his job duties were there, he may or may not be qualified to render a standard of care opinion relative to §766.102(7). Plaintiff shall, within five days, contact the court’s judicial assistant to schedule an evidentiary hearing so that the Court mayCase No.: 01 2020 CA 001350 make this necessary determination before ruling on Defendant’s motion to dismiss Count III. Until the evidentiary hearing is concluded, the Court reserves ruling on whether dismissal of this count is warranted, based on the foregoing argument. (b) | Defendant’s Argument II also seeks to dismiss Count III of the Amended Complaint. Defendant contends that UF Health Eye Center was not a health care facility as contemplated under §766.110, Fla. Stat. Because this issue will be moot if the court dismisses Count III under Defendant’s previous argument concerning Dr. Shore’s qualifications, the Court RESERVES ruling on this issue until it is clear that the argument is not moot. (c) In Argument II, Defendant argues that Count I and II both assert claims for failure to provide informed consent to the patient and are repetitive. Defendant’s motion to dismiss counts I and II based on Argument III is DENIED. (d) In Argument IV, UFBOT argues that Count II of the Amended Complaint improperly uses the catch all language of “employees, agents, apparent agents and/or employees” to describe individuals for whom UFBOT is vicariously liable. Based on this case being a medical malpractice action, Plaintiff had an opportunity to engage in presuit discovery, obtain medical records and take the unsworn statement of relevant health care providers prior to filing the Amended Complaint. In the context of the medical malpractice case, a plaintiff bears the burden of identifying the individuals, either by name or conduct, for whom a defendant entity is vicariously liable. Defendant’s motion to dismiss Count II of the Amended Complaint is DENIED. 2. Plaintiff shall, within five days, contact the court’s judicial assistant to schedule an evidentiary hearing on whether Dr. Shore is qualified to provide standard of care opinions as to “administrative and other nonclinical issues” against a hospital, health care facility or medical facility under §766.102(7), Fla. Stat. DONE AND ORDERED on Wednesday, December 9, 2020.Case No.: 01 2020 CA 001350 Monica Brasington, Circuit Judge 01-2020-CA-001350 12/09/2020 03:07:13 PM CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies have been furnished by U.S. Mail or via filing with the Florida Courts E-Filing Portal on Thursday, December 10, 2020. ANDREA A LEWIS, ESQ FRANCIS E PIERCE, III ESQ lewisteam@searcylaw.com litpleadings@mateerharbert.com alewis@searcylaw.com ckozimor@mateerharbert.com mweschrek@searcylaw.com Rafael Martinez, Esq. and Wilbert Vancol rmartinez@mmdorl.com NOS@mmdorl.com mcearter@mmdorl.com wvancol@mmdorl.com Ruby Dunaway, Judical Assistant 01-2020-CA-001350 12/10/2020 09:50:00 AM