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Florida First DCA rules that medical negligence allegation cannot form the basis of a claim of abuse claim under Florida’s Adult Protective Services Act and health care provider tortfeasor was not entitled to allocate fault with independent, subsequent tor

On July 15, 2019, in Specialty Hospital-Gainesville, Inc. v. Barth, No. 1D18-511, the Florida First DCA reversed a judgment in favor of the plaintiff in case which was brought under both Florida’s medical negligence statute and Florida Adult Protective Services Act (“FAPSA”), Section 415.101-415.113, Florida Statutes.  The plaintiff was a patient at  Specialty Hospital-Gainesville (“Specialty”), a long-term acute-care facility which provides medical treatment to wean patients off breathing ventilators and wound care.  While he has was the hospital, he developed a deep-tissue ulcer and subsequent infections which were the damages alleged in this case.  In addition to suing the hospital for medical negligence, the plaintiff alleged that his care and treatment at the hospital constituted a violation of FAPSA, which provides a cause of action for abuse, neglect or exploitation of vulnerable adults.  One of the defendant’s defenses at trial was that a second health care provider, Heartland of Orange Park (“Heartland”), was includible on the verdict sheet as a Fabre defendant who was comparatively negligent for the plaintiff’s damages.  Heartland provided  treatment of Mr. Barth for the deep-tissue ulcer after he was discharged from Specialty, and Specialty argued that Heartland allowed the pressure sore incurred at its facility to progress into a more serious deep-tissue wound.  The plaintiff prevailed at trial on both counts against Specialty.  However, the  jury found that there was comparative fault on the part of Heartland, apportioning 30% of fault to Specialty and 70% of fault to Heartland. Both parties appealed, with the plaintiff appealing the inclusion of Heartland as a Fabre defendant and the defendant appealing the inclusion of the count alleging a violation of FAPSA in the complaint. 

The First DCA ruled in favor of the defendant regarding the FAFSA count, noting that it has previously ruled that Chapter 415 was not intended to provide an alternative cause of action for medical negligence. See Bohannon v. Shands Teaching Hosp. & Clinics, Inc., 983 So. 2d 717, 720-21 (Fla. 1st DCA 2008). The First DCA ruled in favor of the plaintiff on the Fabre issue.  The Court noted that “no one in this case testified that, more likely than not, Mr. Barth’s damages would have been different without Heartland’s negligence; in fact, the experts testified that Specialty’s negligence alone made the resulting injury inevitable.” In addition, the Court opined that even if Heartland had contributed to making the plaintiff’s injuries worse, it’s treatment of the plaintiff was as an aggravating intervening cause making it an independent subsequent tortfeasor rather than a joint tortfeasor with Specialty.  The First DCA cited in support of this conclusion Stuart v. Hertz Corp., 351 So. 2d 703, 707 (Fla. 1977) (negligent medical provider was not joint tortfeasor with driver who caused the plaintiff’s original injuries) and Dungan v. Ford, 632 So. 2d 159, 162 (Fla. 1st DCA 1994) (plaintiff entitled to jury instruction “that the original tortfeasor was liable for damages caused by subsequent improper medical treatment which aggravates or increases the original injury”); see also Caccavella v. Silverman, 814 So. 2d 1145, 1148-49 (Fla. 4th DCA 2002), review denied, 860 So. 2d 976 (Fla. 2003).   The First DCA accordingly reversed and remanded with a direction that Heartland be removed from the verdict and final judgment as a non-party and that all damages be assessed against Specialty.