CARLOS DIAZ, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LAZARO DIAZ ON BEHALF OF THE ESTATE OF LAZARO DIAZ AND ON BEHALF OF JUAN DIAZ AND YOLANDA DIAZ, AS SURVIVORS OF LAZARO DIAZ, APPELLANTS,
v.
CCHC-GOLDEN GLADES, LTD., A LIMITED PARTNERSHIP WITH COMMONWEALTH CONTINENTAL HEALTH CARE, INC., GENERAL PARTNER, D/B/A GOLDEN GLADES REGIONAL MEDICAL CENTER, LTD., APPELLEE
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The court held that the Emergency Medical Treatment and Labor Act (EMTALA) incorporates state medical malpractice law for damages, and under Florida law, parents cannot recover for the death of an adult child.
[1] The Emergency Medical Treatment and Labor Act (EMTALA) incorporates state medical malpractice law for the determination of recoverable damages.
[2] Under Florida law, parents of an adult child cannot recover damages for medical malpractice claims as defined by s.766.106(1).
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Join FLexlaw to unlock all legal intelligencePlaintiffs sued a hospital for violating EMTALA, alleging the death of their adult child.…
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SCHWARTZ, Chief Judge.
Primarily because of the legislative history set out by the Fourth Circuit in Power v. Arlington Hospital Association, 42 F. 3d 851, 862-63 (4th Cir.1994), reversing Power v. Arlington Hospital, 800 F.Supp. 1384 (E.D.Va.1992) on this point, we are forced to the conclusion that the Emergency Medical Treatment and Labor Act (EMTA-LA), 42 U.S.C.A. § 1395dd(d)(2)(A)(1992),1 incorporates all the vagaries of the state medical malpractice law in the determination of the damages recoverable in an action under the Act. Accord Reid v. Indianapolis Osteopathic Medical Hosp., Inc., 709 F.Supp. 853 (S.D.Ind.1989); see also Brooks v. Maryland Gen. Hosp., Inc., 996 F. 2d 708, 714-15 (4th Cir.1993).
The unfortunate result in this ease, as was correctly held below, is that under the thus applicable exception provided in section 768.21(8), Florida Statutes (1995),2,3 the present plaintiffs have no meaningful EMTALA (or Florida) claim whatever for the death of their adult child even if, as alleged, the defendant hospital violated the statute.
Affirmed.
. (A) Personal harm
Any individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.
. (8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical malpractice as defined by s.766.106(l).
.Because there is no contention that section 768.21(8) is itself invalid, cf. University of Miami v. Echarte, 618 So. 2d 189 (Fla.1993), cert. denied, 510 U.S. 915, 114 S.Ct. 304, 126 L.Ed.2d 252 (1993); Smith v. Department of Ins., 507 So. 2d 1080 (Fla.1987); Vildibill v. Johnson, 492 So. 2d 1047 (Fla.1986), we note, but do not pass upon that possibility.
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Garber v. Lawrence Snetman, M.D., 712 So. 2d 481 (Fla. 3d DCA 1998)…SCHWARTZ, Chief Judge, specially concurring. I concur because I am bound to do so by Mizrahi. See In re Rule 9.331, 416 So. 2d 1127 (Fla.1982). However, as I have previously indicated, see Diaz v. CCHC-Golden Glades, Ltd., 696 So. 2d 1346, 1347 n. 3 (Fla. 3d DCA), review denied, 703 So. 2d 475 (Fla.1997), cert. denied, — U.S. ——, 118 S.Ct. 1797, 140 L.Ed.2d 938 (1998), I believe that it is contrary to the requirements of substantive due process1 and equal protection to discriminate b…
Authorities Cited
- Smith v. Dep't OF Ins., 507 So. 2d 1080 (Fla. 1987)
- Univ. OF Miami v. Echarte, 618 So. 2d 189 (Fla. 1993)
- Vildibill v. Johnson, 492 So. 2d 1047 (Fla. 1986)
- Echarte v. Univ. of Miami, 510 U.S. 915 (U.S. 1993)
- Dixon v. CSX Transp., Inc., 510 U.S. 915 (U.S. 1993)
- Brooks v. Md. Gen. Hosp., 996 F.2d 708 (4th Cir. 1993)