Summary
dismissing a prisoner's medical-negligence claim for failing to comply with the presuit requirements but upholding a claim based on other negligence
Summary of this case from Kellar v. Fla. Dep't of Corr.Opinion
CASE NO.: 4:07cv288-SPM/WCS.
March 12, 2008
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
This cause comes before the Court on Defendant's 12(b)(6) motion to dismiss (doc. 10) and Plaintiff's response (doc. 14). The complaint contains one count for the wrongful death of Emma Nobles on December 15, 2005, while in the custody of the Gadsden Correctional Facility. Plaintiff alleges that Defendant Corrections Corporation of America operated the Gadsden Correctional Facility and negligently failed to secure or provide medical treatment for Emma Nobles.
Defendant seeks dismissal on grounds that Plaintiff failed to comply with the medical malpractice prescreening requirements of §§ 766.106 and 766.203, Fla. Stat., and on grounds that the decedent's parents are not "survivors" within the meaning of Florida's wrongful death statutes, §§ 768.18 and 768.21, Fla. Stat. For the following reasons, the motion to dismiss will be denied in part and granted in part.
1. Medical Negligence
The Court agrees with Defendant that Plaintiff cannot maintain a claim using the medical negligence standard of care without compliance with the medical malpractice prescreening requirements of sections 766.106 and 766.203, Florida Statutes. Delnegro v. Prison Health Services, Inc., No. 6:07cv1711-Orl-28DAB, 2007 WL 3340397 at *1-2 (Nov. 9, 2007); Integrated Health Care Services v. Lang-Redway, 783 So.2d 1108 (Fla. 2d DCA 2001). This is so even if Defendant is not a health care provider because Plaintiff seeks to hold Defendant vicariously liable under the medical negligence standard of care in section 766.102, Florida Statutes.Weinstock v. Groth, 629 So. 2d 835, 837-38 (Fla. 1993). Accordingly, to the extent Plaintiff's complaint contains a claim relying on the medical negligence standard of care, the claim is dismissed for failure to comply with the prescreening requirements of sections 766.106 and 766.203, Florida Statutes.
2. Ordinary Negligence
Despite the dismissal of any medical negligence claim, the complaint contains sufficient allegations to state a claim for ordinary negligence in the failure to secure appropriate medical treatment for Emma Nobles while she was incarcerated. See Horst v. Parker, No. 6:07-cv-612-Orl-19KRS, 2007 WL 4557243, at *2-3 (M.D. Fla. Dec. 21, 2007); Rolle v. Brevard County, No. 6:06-cv-714-Orl-19JGG, 2007 WL 328682, at *10-11 (M.D. Fla. Jan. 1, 2007); Ferguson v. Perry, 593 So.2d 273, 277 (Fla. 5th DCA 1992); Kelley v. Rice, 670 So. 2d 1094, 1096-97 (Fla. 2d DCA 1996). Compliance with the prescreening requirements are not required for an ordinary negligence claim.Kelley 670 So. 2d at 1096-97. The allegations in Plaintiff's complaint plausibly state a claim for ordinary negligence so as to survive a motion to dismiss for failure to state a claim. Bell Atlantic Corp. v. Twombley, ___ U.S. ___, 127 S.Ct. 1955, 1966 (2007). Accordingly, Defendant's motion to dismiss will be denied as to any ordinary negligence claim.
3. Parents as "survivors"
Defendant contends that the decedent's parents are not survivors, and are thus barred from recovery on Plaintiff's wrongful death claim. This argument is only partially correct. Florida's wrongful death statute includes "parents" within the definition of "survivors" although, as Plaintiff concedes, decedent's parents cannot recover for mental pain and suffering because the deceased is an adult child who has other survivors. §§ 768.18(1), 768.21, Fla. Stat. Nevertheless, the parents are appropriately included in the complaint as survivors because they are potential beneficiaries of medical and funeral expenses under section 768.21(5), Florida Statutes. Accordingly, Defendant's motion to dismiss as to this ground is denied.
Defendant also argues for dismissal on grounds that Plaintiff has not properly pleaded damages. Defendant, however, does not explain this argument and the Court is unable to determine that dismissal is warranted. Under Florida law, burial and funeral expenses are considered special damages that must be pleaded if they are to be recovered. City of Coral Gables v. Neill, 182 So. 432 (Fla. 1938). It is unclear, however, if the same requirement is encompassed by Federal Rule of Civil Procedure 9(g). See Leavit v. Cole, 291 F.Supp.2d 1338, 1344-45, n. 9 (M.D. Fla. 2003) (narrowly reading Rule 9(g) in light of modern concepts of notice pleading and initial disclosure requirements under the Federal discovery rules).
Based on the forgoing, it is
ORDERED AND ADJUDGED:
1. Defendant's motion to dismiss (doc. 10) is granted as to Plaintiff's claim for medical negligence.
2. Defendant's motion to dismiss (doc. 10) is denied as to Plaintiff's claim for ordinary negligence and as to the decedent's parents.
DONE AND ORDERED