Cleveland Clinic Florida Health System Nonprofit Corporation v. Oriolo—(C.J. Klingensmith; 4DCA; 1/25/23).
All wrongful death claims in Florida must be brought by the estate’s personal representative (“PR”). The PR in this case alleged that healthcare providers were grossly negligent when intubating the decedent because the intubation caused fatal brain injuries. The PR sued a corporation and the clinic for vicarious liability, but the PR did not sue the healthcare providers (the doctors and nurses) who actually intubated the decedent. After filing the complaint, the PR filed a motion to amend the complaint to allow a claim for punitive damages for the gross negligence of the healthcare providers. While the plaintiff alleged—and the trial court found—that there was a reasonable showing of gross negligence by the medical staff, the DCA disagreed. The DCA noted that the “reasonable showing” requirement was a matter of law, so it reviewed the conclusion de novo with no deference to the trial judge.
First, the DCA disagreed that the factual allegations rose to a level of gross negligence as opposed to simple negligence. Punitive damages can be imposed only where there is a showing of either intentional misconduct or gross negligence. Only gross negligence was alleged here. Gross negligence is conduct so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of person exposed to such conduct. It’s basically the same level of culpability as criminal manslaughter. The conduct has to be so outrageous that a member of the community would shout, “Outrageous!” (Yes, it says this).
When trying to pin gross negligence punitive damages on an employer, principal, corporation or some other entity based on vicarious liability for acts of other persons, a plaintiff cannot just demonstrate gross negligence by the agent and then pin punitive damages on the defendant on a theory of vicarious liability. Instead, section 768.72, Fla. Stat. requires that the plaintiff show proof that the defendants themselves knowingly condoned, ratified, or consented to the gross negligence.
The trial court had ruled that the proffered evidence showed the doctors and other health care providers were grossly negligent by—contrary to the emergency room physician’s recommendation— placing the decedent on a floor level with fewer observation checks, failing to attend to the decedent during the various emergency calls, and beginning intubation without proper supervision, causing the delayed intubation that led to the decedent’s death. To support the punitive damages claim against the hospital, the trial court found a jury could conclude that the hospital’s response to the incident reflects its “condonement and ratification of the [provider’s] gross negligence.” And essentially, the DCA didn’t feel the urge to shout, “Outrageous!!” So they more or less summarily stated that the facts just didn’t meet the standard as a matter of law.
The DCA then said it would have reversed for a second reason even if the doctors had been grossly negligent. The DCA held that there was no evidence that the actual defendants ratified or condoned or approved the conduct. The standard is that the principal was fully informed. Constructive knowledge would not be enough. The DCA notes that “willful ignorance” would be enough, but the DCA brushed by that separate basis for proving “ratification” without analyzing it.
The plaintiff argued that “after the fact” evidence could show ratification, condonement, or consent. The DCA disagreed, noting that comments by the physician after the death, failure to preserve evidence, failure to report or investigate the death, and failure to conduct remedial training could not be relied upon—as a matter of law—to show ratification.
Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC