SOVA DRUGS, INC., ET AL., PETITIONERS,
v.
TRAIY PATRICK BARNES, ET AL., RESPONDENTS

Fla. 5th DCA | 1995-10-13
No. 95-1719
COBB and HARRIS, JJ., concur.
661 So. 2d 393 Florida District Court of Appeal, Fifth District (1995) Positive Treatment
Cited by 32 cases

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Synopsis

Sova Drugs petitioned for certiorari to review a trial court's denial of its motion to dismiss a pharmacy malprescription case, arguing the Medical Malpractice Reform Act's presuit notice requirements applied. The Fifth District Court of Appeal held that pharmacies are not "health care providers" under the Act's presuit provisions and thus are not entitled to require presuit notice, affirming the trial court's denial of the motion to dismiss.


Holding

Pharmacies and pharmacists are not "health care providers" under section 768.50(2)(b), Florida Statutes, and therefore are not entitled to the presuit notice requirements of the Medical Malpractice Reform Act. The trial court's denial of Sova's motion to dismiss was properly grounded in this interpretation of the statute.


Headnotes

[1] Interlocutory orders interpreting the presuit provisions of the Medical Malpractice Reform Act are reviewable by petition for writ of certiorari to promote the Act's sett…

[2] A "health care provider" entitled to presuit notice under the Medical Malpractice Reform Act is limited to those specifically enumerated in Section 768.50(2)(b), Florida…

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Key Quotes

“In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in Section 768.50(2)(b), the claimant shall have the burden of proving by the greater weight of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider”

Defines the scope of the Medical Malpractice Reform Act's requirements by cross-referencing the definition of "health care provider" in section 768.50(2)(b)

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Facts & Procedural History

The mother of Traiy Patrick Barnes filed suit against Sova Drugs for injuries suffered by her son when the pharmacy allegedly misfilled a prescription…

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Opinion of the Court
W. SHARP, Judge.

W. SHARP, Judge.

The mother of Traiy Patrick Barnes, respondent in this case, filed suit against Sova Drugs, Inc., petitioner in this case, for injuries suffered by her son, when the pharmacy allegedly misfilled a prescription for him. Sova filed a motion to dismiss on the ground that Barnes failed to comply with the presuit investigation and notice requirements of the Medical Malpractice Reform Act, sections 766.101 through 766.212, Florida Statutes (1993). The trial court denied the motion because it held the pharmacy is not a “health care provider” under the Medical Malpractice Reform Act, and thus it is not entitled to require that plaintiffs suing for misfilling a prescription comply with the presuit investigation and notice requirements of the statute. Sova seeks review of this ruling by filing a petition for certiorari.

We agree with the trial court’s ruling. Orders denying motions to dismiss are not generally reviewed by appellate courts by means of petitions for certiorari. However, the appellate courts of this state have made an exception for interlocutory orders which interpret the presuit provisions of the Medical Malpractice Reform Act. The justification for this exception is to promote the purpose of the statutory procedures under the Act, which are designed to encourage settlement of cases. If the case is fully litigated, without resort to the presuit procedures, that purpose would be frustrated, and appellate courts could not properly remedy the cause on appeal. See Tunner v. Foss, 666 So. 2d 1151 (Fla. 5th DCA 1995); Shands Teaching Hospital and Clinics, Inc. v. Barber, 638 So. 2d 570 (Fla. 1st DCA 1994); NME Hospitals, Inc. v. Azzariti, 573 So. 2d 173 (Fla. 2d DCA 1991).

This is apparently a case of first impression in this state. Section 766.102, Florida Statutes (1993) sets out the standards for recovery in medical negligence cases. Subsection (1) provides:

In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in Section 768.50(2)(b), the claimant shall have the burden of proving by the greater weight of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider ... (emphasis supplied)

Section 766.106(2), Florida Statutes (1993) requires that presuit notice be given by a claimant to “each prospective defendant”. In Weinstock v. Groth, 629 So. 2d 835 (Fla.1993), the supreme court stated that the “prospective defendants” entitled to presuit notice are the health care providers listed in Section 768.50(2)(b), Florida Statutes (1985). That provision defines “health care provider” as:

[Hjospitals licensed under chapter 395; physicians licensed under chapter 458; osteopaths licensed under chapter 459; podiatrists licensed under chapter 461; dentists licensed under chapter 466; chiropractors licensed under chapter 460; naturopaths licensed under chapter 462; nurses licensed under chapter 464; clinical laboratories registered under chapter 483; physicians’ assistants certified under chapter 458; physical therapists and physical therapist assistants licensed under chapter 486; health maintenance organizations cer tified under part 2 of chapter 641; ambulatory surgical centers as defined in paragraph (e); blood banks, plasma centers, industrial clinics, and renal dialysis facilities; or professional associations, partnerships, corporations, joint ventures, or other associations for professional activity by health care providers.

The supreme court held that a psychologist is not a health care provider because that profession is not specifically listed in section 768.50(2)(b), Florida Statutes (1985). Wein-stock v. Groth, supra. Thus, the court concluded, a psychologist is not entitled to pre-suit notice provided under Chapter 766. The court noted that its narrow construction of the statutory definition of “health care provider” is in accord with the rule that any restriction of access to the courts must be construed in a manner that permits free access. 629 So. 2d at 838.

Section 768.50(2)(b), Florida Statutes (1985) does not specifically reference pharmacists, nor the chapter in the Florida Statutes, under which these professionals are licensed and controlled by this state. Since the statute specifically references those professions which are included, and the chapters under which they are regulated, application of the basic rule of statutory construction1 leads to the conclusion that the Legislature intended to omit pharmacists and pharmacies from this part of the Medical Malpractice Reform Act. Other parts of Chapter 766 include pharmacists in the list of “health care providers,” for example, section 766.101(l)(b), Florida Statutes (1993).2 However, their inclusion in this section is for the purpose of providing them immunity when serving on medical review committees or providing information in the scope of such a committee function. This provision has little or nothing to do with filing medical malpractice actions in civil courts. Cf NME Properties, Inc. v. McCullough, 590 So. 2d 439 (Fla. 2d DCA 1991) (nursing homes are required to have medical review committees, but are not entitled to presuit notice).

The Medical Malpractice Reform Act has other sections which define “health care provider” in inconsistent ways. See, e.g., § 766.1115(3)(d), Fla.Stat. (1993) (fails to include “pharmacist” within the definition of health care providers who are entitled to immunity from liability if offering free services to the poor). The only sensible approach in interpreting this Chapter, is to limit the applicability of each section to its own definition of “health care provider,” if there is one provided. We conclude that section 768.50(2)(b) identifies the only health care providers who are entitled to presuit investigation and notice requirements prior to filing a civil suit for malpractice. Wein-stock v. Groth, supra. Pharmacists and pharmacists are not among those listed.

Petition for Writ of Certiorari DENIED.

COBB and HARRIS, JJ., concur. . “Expressio unius est exclusio alterius,” that is, the mention of one thing implies the exclusion of another. See Diversified Services, Inc. v. Avila, 606 So. 2d 364 (Fla.1992); Butterworth v. Caggi-ano, 605 So. 2d 56 (Fla.1992); Scope v. Fannelli, 639 So. 2d 141 (Fla. 5th DCA 1994); Chandra v. Gadodia, 610 So. 2d 15 (Fla. 5th DCA 1993), cert, denied, 621 So. 2d 432 (Fla.1993).

. See § 766.101(l)(b), Fla.Stat. (1993).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (16 total)

  • Stephens v. Geoghegan, 702 So. 2d 517 (Fla. 2d DCA 1997)
    …intervention in light of a perceived legislative concern for the expeditious handling of such claims. Id. at 587-88. Other district courts of appeal followed suit. See Citron v. Shell, 689 So. 2d 1288 (Fla. 4th DCA 1997); Sova Drugs, Inc. v. Barnes, 661 So. 2d 393 (Fla. 5th DCA 1995); Miami Physical Therapy Associates, Inc. v. Savage, 632 So. 2d 114 (Fla. 3d DCA 1994). As we did in Pearlstein, we believe that the issue in this ease merits our early intervention by certiorari. Pearlstein involved the defendan…
  • Cent. Fla. Reg'l Hosp. v. Hill, 721 So. 2d 404 (Fla. 5th DCA 1998)
    …rds. Certiorari is appropriate to review an order denying a motion to dismiss which claims the pre-suit requirements of Chapter 766 have not' been met. See Okaloosa County v. Clister, 697 So. 2d 1297 (Fla. 1st DCA 1997); Sova Drugs, Inc. v. Barnes, 661 So. 2d 393 (Fla. 5th DCA 1995). The justification for this exception to the general rule that orders denying motions to dismiss are not reviewable by certiorari is that interlocutory review is necessary to promote the statutory purpose of the Medical Malpracti…
  • …Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla.1987) and Bared & Co., Inc. v. McGuire, 670 So. 2d 153, 156 (Fla. 4th DCA 1996) (en banc)). Orders denying a motion to dismiss on similar grounds have met this standard. Sova Drugs, Inc. v. Barnes, 661 So. 2d 393 (Fla. 5th DCA 1995); see also Pearlstein v. Malunney, 500 So. 2d 585, 587 (Fla. 2d DCA 1986). In their petition, the doctor and her P.A. argue the order departs from the [*778] essential requirements of law because the trial court failed to conside…

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