Filing 6.25.08/ MTD 9.29.09
Motion to Dismiss
In their response to the motion to dismiss, the plaintiffs 1 have added to, or amended, some
of their factual allegations. Some examples of such attempts at constructively (and improperly)
amending the complaint are listed in the defendants’ reply memorandum. I do not consider any of
these additional factual claims by the plaintiffs in ruling on the motion to dismiss.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-21813-CIV-JORDAN
JANICE LANGBEHN, individually and as
Representative of the Estate of LISA
MARIE POND, DANIELLE LANGBEHNPOND,
and DAVID LANGBEHN-POND
THE PUBLIC HEALTH TRUST OF
MIAMI-DADE COUNTY, d/b/a JACKSON
MEMORIAL HOSPITAL, GARNETT
FREDERICK, DR. ALOIS ZAUNER, and
DR. CARLOS ALBERTO CRUZ
ORDER GRANTING MOTION TO DISMISS
Currently pending is the defendants’ motion to dismiss the amended complaint. Under the
Rule 12(b)(6) standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007), and
for the reasons which follow, that motion [D.E. 31] is GRANTED.
I. THE ALLEGATIONS
The amended complaint alleges the following facts.1
Janice Langbehn and Lisa Marie Pond – residents and citizens of Washington – were
committed life partners since 1987 and the parents of four jointly adopted children with special
needs, including three minors (Danielle, Katie, and David). On February 17, 2007, the Langbehn-
Pond family arrived in Miami to depart on a cruise. They never left on the cruise, however, because
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Both Ryder and 2 Jackson are operated by the Public Health Trust.
3An aneurysm is a “morbid dilatation of the wall of a blood vessel, usu[ally] an artery.” 1
Shorter Oxford English Dictionary 79 (5th ed. 2002).
on the following day, Ms. Pond – then 39 – collapsed aboard the cruise ship while it was docked at
the Port of Miami.
An ambulance transported Ms. Pond to the Ryder Trauma Center at Jackson Memorial
Hospital.2 Ms. Pond was admitted at Ryder at around 3:30 p.m., and Ms. Langbehn, Danielle, Katie,
and David arrived at approximately the same time or shortly thereafter. Doctors Alois Zauner and
Carlos Alberto Cruz were the attending physicians at Ryder responsible for Ms. Pond’s care and
treatment, and for decisions as to access and information given to the Langbehn-Pond family about
Ms. Pond’s situation. On information and belief, the plaintiffs allege that Ms. Pond was semiconscious
and responsive at the time of her arrival at Ryder and for several hours afterwards.
Ms. Langbehn informed the admitting clerk at Ryder that she was Ms. Pond’s life partner and
offered to provide relevant medical history and information. She also indicated that was the family
member who was to receive information about Ms. Pond’s condition, explained that the children
were their jointly adopted children, and emphasized her need to be with Ms. Pond as soon as
possible. The admitting clerk, who controlled family members’ access to emergency personnel
attending patients at Ryder, rejected Ms. Langbehn’s offer to provide information about Ms. Pond.
She also refused to provide Ms. Langbehn with information about Ms. Pond’s condition, and over
the next eight hours, denied the family the ability to see or be with Ms. Pond.
Subsequently, Garnett Frederick, a Jackson social worker, spoke to Ms. Langbehn. He told
Ms. Langbehn that she should not expect to be provided any information about or access to Ms. Pond
because they were in an “anti-gay city and state.” Mr. Frederick also told Ms. Langbehn that,
because it was a holiday weekend, she would not be able to get before a court in order to secure the
legal papers necessary for her to get information about or access to Ms. Pond.
At 4:15 p.m., doctors at Ryder determined that Ms. Pond had experienced an aneurysm.3 At
approximately the same time, Ryder personnel received, by fax, a copy of Ms. Pond’s executed
power of attorney, which allowed Ms. Langbehn to act as Ms. Pond’s guardian and make medical
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decisions in case of incapacity. That document was then placed in Ms. Pond’s patient file. Despite
receipt of the power of attorney, no one at Ryder, including the defendants, acknowledged the legal
effect of the document, or allowed Ms. Langbehn to have information about, or access to, Ms. Pond.
The plaintiffs allege that Doctors Zauner and Cruz knew, or should have known, about the executed
power of attorney. Jackson personnel (it is unclear who) did not allow Ms. Langbehn to sign
admission or consent forms for Ms. Pond. They did, however, allow Ms. Pond’s father (at what time
is unclear) to sign authorization forms for Ms. Pond’s medical treatment. Jackson personnel also did
not allow Ms. Langbehn to receive Ms. Pond’s medical records.
At 4:30 p.m., Ms. Pond was given some medicine. From 4:15 to 5:20 p.m., no one gave Ms.
Langbehn any information about Ms. Pond or sought her consent for any medical treatment. At
around 5:20 p.m., medical personnel placed a central line and a “ventria” during a surgical
procedure, on Ms. Pond, as well as a brain monitor. Ms. Langbehn, who spoke to one of the
attending physicians at that time, consented to the placement of a brain monitor.
At approximately 6:10 p.m., two doctors (the complaint is silent as to which ones) spoke to
Ms. Langbehn about Ms. Pond’s condition and surgical options. Ms Langbehn insisted on calling
Ms. Pond’s parents, who were placed on speaker phone with the doctors. During this conversation
the doctors learned that Ms. Pond’s condition had deteriorated and suggested that surgery was not
advisable. Ms. Langbehn asked to see Ms. Pond and told the doctors that Ms. Pond was an organ
donor. She repeated this request on behalf of herself and the children 10 minutes later. Ms.
Langbehn was told (it is unclear by whom) that they would be able to see Ms. Pond as soon as she
was “cleaned up,” and a doctor (again it is unclear which one) admitted that there were no medical
or other legitimate reasons to prevent the family from being with Ms. Pond. Notwithstanding these
representations, Ms. Langbehn and the children were not taken to the restricted area where Ms. Pond
About 40 minutes later, at 6:50 p.m., a priest escorted Ms. Langbehn into the trauma area,
where Ms. Pond lay alone. The priest administered last rites, with Ms. Langbehn present. Ms.
Langbehn was escorted out of the trauma area at 6:55 p.m., once the last rites had been administered.
During this time, other families, including those with minor children, were given information by the
clerk and were escorted in and out of the restricted area to see their relatives. Throughout the
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evening, Ms. Pond was placed in restraints for her own protection and because no family members
were allowed to provide care and supervision.
Every 20 minutes or so, Ms. Langbehn requested permission to see Ms. Pond. The clerk, as
she had done before, denied the requests and provided no updates on Ms. Pond’s condition. At 10:30
p.m., Ms. Pond was transferred from Ryder to Jackson Memorial Hospital’s Neurosurgery Intensive
Care Unit. The clerk failed to tell Ms. Langbehn that Ms. Pond had been transferred.
Ms. Pond’s sister and brother-in-law arrived from Jacksonville at around 11:30 p.m. Ryder
personnel recognized them as Ms. Pond’s relatives, informed them of the transfer, and gave them
Ms. Pond’s new room number. Ms. Langbehn and her children were able to visit with Ms. Pond at
this time. Significantly, however, the plaintiffs do not allege that they were denied access to, or
visitation with, Ms. Pond after her transfer and before her death.
Soon after Ms. Pond’s death, Jackson personnel gave Ms. Pond’s parents copies of their
daughter’s confidential medical records, even though they had not requested them and even though
neither was listed as Ms. Pond’s healthcare surrogate. Ms. Langbehn was not given Ms. Pond’s
medical records even though she requested them.
Jackson’s policies, as stated on the hospital’s public website and elsewhere, promise an
environment that preserves dignity; the right to an environment free from mental, sexual, and verbal
abuse; recognition of powers of attorney and designations of health care surrogates; crisis and
bereavement counseling 24 hours a day at Ryder; social workers to provide emotional support for
friends and family and facilitate family involvement with the entire treatment team; and health care
with kindness and respect for patients’ diverse backgrounds and rights to dignity. On information
and belief, the plaintiffs allege that Jackson has promulgated rules prescribing reasonable visitation
policies, and that Jackson has a “liberal visitation policy” which allows visitors “as soon as it is
humanly possible and appropriate.”
The plaintiffs allege that Ms. Langbehn became physically ill and suffered from stomach
pain, nausea, and vomiting at various times on February 18, 2007, due to her inability to comfort Ms.
Pond while she was dying. The plaintiffs also allege that, as result of the defendants’ actions, Ms.
Langbehn and the children (Danielle, Katie, and David) suffered physical injuries, including the
exacerbation of Ms. Langbehn’s multiple sclerosis symptoms (which required hospitalization),
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4Subject-matter jurisdiction exists by virtue of diversity. See 28 U.S.C. § 1332(a)(1).
severe psychological distress, trauma, nausea, insomnia, nightmares, severe depression, and
symptoms of post-traumatic stress disorder.
The plaintiffs – Ms. Langbehn, Danielle, Katie, David, and Ms. Pond’s Estate – have pled
8 claims under Florida law.4 All of those claims arise out of their alleged improper treatment by
personnel at Ryder and Jackson on February 18, 2007. Significantly, the plaintiffs do not allege that
Ms. Pond’s medical care was inadequate. Nor do they contend that such treatment was rendered
without appropriate consent or informed consent, or that Ms. Langbehn would have done anything
else differently concerning Ms. Pond’s medical care had she been given more updates and
information on her status.
The plaintiffs seek compensatory damages for psychological trauma and/or emotional
distress, as well as for certain physical injuries brought about by the emotional distress. In the
alternative, the plaintiffs seek nominal damages. They also seek punitive damages.
A. COUNTS I-IV
In Count I, the plaintiffs assert that the Public Health Trust and Doctors Zauner and Cruz
were negligent in failing to provide timely and sufficient medical information about Ms. Pond,
failing to allow Ms. Langbehn access to Ms. Pond so as to allow her to make proper medical
decisions as a surrogate, failing to respect Ms. Langbehn’s requests on behalf of Ms. Pond, failing
to provide Ms. Pond (a dying patient) with reasonable access to her family without medical or other
legitimate justification, failing to offer the Langbehn-Pond family basic dignity and respect, failing
to recognize Ms. Langbehn as Ms. Pond’s life partner, failing to recognize the children as part of Ms.
Pond’s family, and violating Jackson’s policies (regarding provision of care, patient access, and
communications with relatives). The plaintiffs do not specify in Count I what damages they are
alleging, but their incorporation of earlier paragraphs of the amended complaint indicate that they
are seeking damages for emotional distress, exacerbation of Ms. Langbehn’s multiple sclerosis,
trauma, nausea, insomnia, nightmares, severe depression, and symptoms of post-traumatic stress
disorder. In Counts II and III, the plaintiffs assert claims for negligent infliction of emotional distress
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against the Public Health Trust, Mr. Frederick, and Doctors Zauner and Cruz based on their alleged
negligent refusal to allow them to see Ms. Pond without any “medical necessity or medical or other
legitimate justification,” failure to afford them basic dignity and respect by denying them the ability
to be with Ms. Pond as she was dying, failure to acknowledge Ms. Langbehn’s power of attorney,
failure to allow Ms. Langbehn access to Ms. Pond as her surrogate, failure to provide written
notification to Ms. Langbehn that her surrogacy had begun, violation of Jackson’s policies regarding
provision of care, patient access, and communications with relatives, failure to respect the medical
decisions of Ms. Langbehn as Ms. Pond’s surrogate, failure to treat Ms. Pond with respect, violation
of Jackson’s policies with regards to sexual orientation, and failure to provide appropriate social
services (including crisis and bereavement counseling). In Count IV, all of the plaintiffs sue the
Public Health Trust, Mr. Frederick, and Doctors Zauner and Cruz for negligence per se.
1. THE INDIVIDUAL DEFENDANTS
At oral argument, the plaintiffs conceded that their negligence claims in Counts I-IV against
the individual defendants – Mr. Frederick and Doctors Zauner and Cruz – fail. I agree with this
concession, for under Florida law public employees are statutorily immune from tort claims arising
out of actions in the course of their employment, unless the employee “acted in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety,
or property.” See Fla. Stat. § 768.28(9)(a). See also Jaar v. University of Miami, 474 So.2d 239,
243-45 (Fla. 3rd DCA 1985) (doctor acting as agent of Public Health Trust at Jackson was immune
from claim of negligence). Accordingly, Counts I-IV are DISMISSED WITH PREJUDICE as to Mr.
Frederick and Doctors Zauner and Cruz, and I proceed to analyze the negligence and negligence per
se claims against the Public Health Trust.
2. COUNTS I-III: DUTY
A claim for negligence requires four elements: (1) the existence of a duty to conform to a
certain standard of conduct for the protection of others against unreasonable risks; (2) a breach of
that duty; (3) a “reasonably close causal connection” between the breach and the resulting injury; and
(4) actual harm. See Williams v. Davis, 974 So.2d 1052, 1056 (Fla. 2007). The defendants contend
that under principles of tort law they did not owe any legal duty, at Ryder, to give the plaintiffs
information about Ms. Pond’s treatment or condition, to allow the plaintiffs to visit Ms. Pond, or to
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provide the plaintiffs with grief and bereavement counseling. The plaintiffs counter that accepted
industry-wide medical standards (e.g., the standards set forth by the Joint Commission on
Accreditation of Healthcare Organizations) and Jackson’s own policies can be the bases for
imposition of a legal duty in tort.
The existence of a duty is a question of law in Florida, and the “duty element of negligence
focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses
a general threat of harm to others.” McCain v. Fla. Power Corp., 593 So.2d 500, 502, 503 (Fla.
1992). “Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human
endeavor creates a generalized and foreseeable risk of harming others.” Id. at 503. “The statute
books and case law . . . are not required to catalog and expressly proscribe every conceivable risk
in order for it to give rise to a duty of care. Rather, each defendant who creates a risk is required to
exercise prudent foresight whenever others may be injured as a result.” Id. A duty may arise from
a number of sources, including legislative enactments and administrative regulations, judicial
interpretations of such laws, other judicial precedent, and the facts of the case. See Goldberg v. Fla.
Power & Light Co., 899 So.2d 1105, 1110 (Fla. 2005).
As the Fourth District has explained, “[f]inding that a legal duty exists in a negligence case
involves the public policy decision that a defendant should bear a given loss, as opposed to
distributing the loss among the general public.” Biglen v. Fla. Power & Light Co., 910 So.2d 405,
409 (Fla. 4th DCA 2005). Nevertheless, the Florida Supreme Court has recently cautioned that
“abstract notions of sound public policy are not proper judicial considerations” in determining
whether a duty exists. Wallace v. Dean, 3 So.3d 1035, 1041 n.9 (Fla. 2009). See also Williams, 974
So.2d at 1056 (duty depends on evaluation of concept of foreseeability of harm).
I agree with the plaintiffs that doctors and hospitals owe a general duty to a patient to give
her material information necessary for her to make informed decisions about her medical care –
including information about the patient’s own condition – and if the patient is incompetent or
unconscious, to provide that material information to a person who is legally able to make medical
decisions on the part of the patient (e.g., a parent acting for a minor, a spouse, a relative, a health care
surrogate, a legal guardian, or someone acting under a power of attorney) and who is available. Such
a person acting pursuant to “instructions regarding life-sustaining treatment” left by the patient has
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the responsibility to “make the medical choice that the patient, if competent, would have made.” See
In re Guardianship of Browning, 568 So.2d 4, 13 (Fla. 1990); Fla. Stat. § 765.102 (allowing for a
procedure that “designat[es] another person to direct the course of [a patient’s] medical treatment
upon [the patient’s] incapacity”). It is easily foreseeable that the patient (or maybe even the person
acting on behalf of the patient) will suffer harm if medical professionals do not provide material
information necessary for making an informed decision about medical care. See, e.g., Pate v.
Threlkel, 661 So.2d 278, 281 (Fla. 1995) (if the statutory standard of care requires a reasonably
prudent health care provider to warn a patient of the genetically transferable nature of a condition,
then a duty exists); Buckner v. Allergan Pharm., Inc., 400 So.2d 820, 823 (Fla. 5th DCA 1981) (a
doctor’s duty is to inform his patient about what a reasonable prudent medical specialist would tell
a person of ordinary understanding concerning possible benefits, risks, and harm so that patient can
make intelligent decision).
This limited duty, however, does not extend to relatives, friends, or loved ones who do not
have decision-making authority as to a patient’s medical treatment. Much of a patient’s medical
information is private and confidential under both state and federal law, and I do not believe that the
Florida Supreme Court would impose a duty in tort on doctors or hospitals to provide medical
updates on a patient’s condition or prognosis or treatment to third parties who would simply like to
be informed. Furthermore, this limited duty does not include providing regular medical updates on
a patient’s condition if such updates are not necessary to making medical decisions. Relatives, loved
ones, and health care surrogates will of course want such updates, and doctors and hospitals may and
usually should – without violating privacy laws – provide some updates. But they have no duty
under Florida tort law to do so. Thus, to the extent that the plaintiffs are complaining in Counts I-III
about the defendants not providing them updates on Ms. Pond’s condition at 20-minute intervals
when Ms. Langbehn asked for information, those claims fail as a matter of law to the extent that such
updates were unnecessary for making decisions about treatment. Cf. Smith v. Methodist Hosp. of
Ind., 569 N.E.2d 743, 746 (Ind. App. 2 Dist. 1991) (addressing claim for intentional infliction of
emotional distress: “[T]he question raised is whether Methodist had an independent duty to disclose
the incompetent patient’s condition to the patient’s family. We hold Methodist did not owe a duty
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to [the] Smiths to advise them of Richard’s condition where that information was not related a course
of medical treatment.”).
Here, then, under Counts I-III, any duty to provide information about Ms. Pond’s condition
and to allow medical decisions by Ms. Pond or on her behalf ran only to Ms. Pond and to Ms.
Langbehn, her health care surrogate. The defendants did not have any duty under Florida law to
provide such information about Ms. Pond to the children, who did not have the authority to make
any medical decisions on her behalf. Even if such a duty to the children somehow existed, any such
duty would have been discharged by providing information to Ms. Langbehn and by allowing Ms.
Langbehn to make medical decisions on behalf of Ms. Pond. See Pate, 661 So.2d at 282 (any duty
on part of doctors to warn patient that her condition was genetically transferrable ran to patient’s
children, despite lack of privity, but duty would be discharged by warning patient, and doctors would
not have to separately warn children).
Usually the question of breach is for the trier of fact, see Marriott Int’l, Inc. v. Perez-
Melendez, 855 So.2d 624, 628-29 (Fla. 5th DCA 2003) (citing cases), but where the facts are
undisputed, or are viewed in the light most favorable to the plaintiff, the question of breach can be
decided by the court on a motion to dismiss, a motion for summary judgment, or a motion for
directed verdict. See, e.g., L.A. Fitness Int’l, LLC v. Mayer, 980 So.2d 550,557-62 (Fla. 4th DCA
2008); Franco v. Miami-Dade County, 947 So.2d 512, 517 (Fla. 3rd DCA 2007); St. Joseph’s
Hospital v. Cowart, 891 So.2d 1039, 1041-42 (Fla. 2nd DCA 2004). The allegations in the amended
complaint show that there was no breach, and the issue can be decided as a matter of law. Ms. Pond
arrived a Ryder at around 3:30 p.m. Ryder received Ms. Langbehn’s power of attorney at around
4:15 p.m., at about the same time that doctors determined that Ms. Pond had suffered an aneurysm.
Afterwards, doctors twice talked to, and consulted with, Ms. Langbehn – as Ms. Pond’s health
surrogate – about possible treatment options. First, at 5:20 p.m. doctors spoke to Ms. Langbehn
about the need for a brain monitor, and Ms. Langbehn consented to the placement of such a monitor.
Second, at around 6:10 p.m., doctors spoke to Ms. Langbehn about Ms. Pond’s condition and
possible surgical options. At Ms. Langbehn’s request, Ms. Pond’s parents were placed on
speakerphone to discuss these issues. During the ensuing conversation, the doctors learned that Ms.
Pond’s condition had deteriorated and suggested that surgery was not a option. Not surprisingly, at
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oral argument the plaintiffs were unable to point to a single example of what Ms. Langbehn would
have done differently if she had been given more information about Ms. Pond. In the words of the
plaintiffs’ counsel, it would “be speculative as to what she would have done.”
There is no allegation that Ms. Langbehn insisted on surgery or some other procedure or
treatment that was not carried out. In fact, when she apparently realized that Ms. Pond might not
survive, Ms. Langbehn informed the doctors that Ms. Pond was an organ donor. A priest performed
last rites at around 6:50 p.m., thereby indicating that, as of that time, there was nothing else that
doctors could do for Ms. Pond. As of that time, therefore, because there are no allegations that
further medical decisions had to be made as to or on behalf of Ms. Pond, doctors had no further legal
duty actionable in tort to provide Ms. Langbehn with updates about Ms. Pond.
I now turn to the plaintiffs’ allegations that the defendants had a duty to allow them visitation
with Ms. Pond. Under general principles of Florida tort law, see Hartford Acc. & Indemnity Co. v.
Beaver, 466 F.3d 1289, 1291-92 (11 Cir. 2006), the plaintiffs th must “demonstrate that the
defendant[s] owed a ‘duty, or obligation, recognized by the law, requiring the[m] . . .to conform to
a certain standard of conduct, for the protection of others against unreasonable risks.’” Williams, 974
So.2d at 1056 (emphasis added) (quoting Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185
(Fla. 2003)). As the Supreme Court held in Williams, not every risk creates a corresponding duty.
See 974 So.2d at 1054, 1062 (owner or residential property did not owe duty to motorist to cut or
trim foliage that did not extend into the public right-of-way, even though foliage allegedly obstructed
motorist’s view of other traffic as she approached intersection). There is no claim here that Ms.
Langbehn was unable to make an informed decision about medical care without being able to see
or visit Ms. Pond. The visitation claim, therefore, is separate from the claim about receiving
sufficient information to allow an informed decision as to medical care.
Although this is necessarily an Erie guess, I predict that the Florida Supreme Court would
hold that doctors at a trauma unit do not have a freestanding legal duty, untethered to informed
consent by a patient or health care surrogate, to allow visitation with a patient who is in critical
condition and undergoing treatment – as was Ms. Pond from 3:30 p.m. to about 6:30 p.m. – or to
allow visitation with a terminal patient – as was Ms. Pond from 6:30 p.m. to 11:30 p.m. – who is
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5I do not address what legal duty doctors and hospitals may or may not have to allow
visitation in a non-trauma setting or when a minor child is a patient, as these scenarios are not
present here. I note, moreover, that there is no allegation that the plaintiffs were denied visitation
with Ms. Pond once she was transferred to a non-trauma room, and at oral argument the plaintiffs’
counsel acknowledged that Ms. Langbehn and the children were able to see Ms. Pond at around
6If, as the plaintiffs allege, Doctors Zauner and Cruz failed to allow visitation without a
legitimate medical reason, it could be said that they were not as sympathetic as they should have
been, and even exhibited a lack of sensitivity. But, as the Florida Supreme Court said in different
context, “a cause of action does not exist for lack of empathy except, perhaps, for negligent or
intentional infliction of emotional distress.” Fla. Patient’s Comp. Fund v. Von Stetina, 474 So.2d
783, 790 (Fla. 1985).
going to be transferred to a regular room where visitation will be permitted.5 It may sometimes
make sense for doctors to allow close relatives to visit a patient inside a hospital, even in a trauma
unit or an intensive care unit, unless they have medical reasons for not allowing visitation. Visitation
may, in certain situations, even be therapeutic. But decisions as to visitation must be left to the
medical personnel in charge of the patient, without second-guessing by juries and courts. A trauma
unit is not like a regular hospital setting, and visitors may interfere with what medical personnel are
trying to accomplish in a difficult environment, or bring with them germs or microbes that create
other unexpected problems. A decision to not allow visitation in a trauma unit setting – where
emotions are already at their breaking point and where lives may literally hang in the balance – does
not create “unreasonable risks” of harm to the patient or to the putative visitors so as to establish a
legal duty in tort. Cf. Maloney v. Conroy, 545 A.2d 1059, 403 (Conn. 1988) (refusing to recognize
claim for bystander emotional distress brought by daughter who visited her mother, a patient at
hospital, and allegedly saw her mother deteriorate due to medical malpractice: “Medical judgments
as to the appropriate treatment of a patient ought not to be influenced by the concern that a visitor
may become upset from observing such treatment or from the failure to follow some notion of the
visitor as to care of the patient. The focus of the concern of medical care practitioners should be
upon the patient and any diversion of attention or resources to accommodate the sensitivities of
others is bound to detract from that devoted to patients.”).6
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I recognize that the Washington Court of Appeals recently ruled, in an unpublished opinion,
that a patient’s life partner could state claims for outrage and negligent infliction of emotional
distress against a critical care nurse who excluded her from the patient’s hospital room for extended
periods the night before the patient’s death, given allegations that the nurse acted without any valid
medical reasons and that the patient’s doctor had allowed the partner to remain in the room. See
Reed v. ANM Healthcare, 147 Wash. App. 1044, 2008 WL 5157869, *1-*3 (Ct. App. 1 Div. 2008).
Significantly, however, the Washington Court of Appeals explained that – given Washington
statutory law – the issue was not whether the nurse’s “decision to exclude [the partner] breached the
standard of care. Rather, . . . the critical question is whether [the nurse’s] actions in excluding [the
partner] were medically motivated.” See id. at *4. If “the exclusion was to address [the patient’s]
medical needs, then [the partner’s] injuries occurred as a result of health care and her common law
tort claims are precluded by RCW 7.70.010 and .30. If the exclusion was not based on [the patient’s]
medical needs, then [the partner’s] common law tort claims remain viable.” See id.
On its facts, Reed is distinguishable because, according to the partner’s version of events,
the patient’s doctor had already approved visitation, and it was a nurse who then countermanded that
medical directive. The facts here are markedly different, as the plaintiffs allege that Doctors Zauner
and Cruz did not permit visitation. And if Reed is read broadly to create a duty in tort on the part
of doctors to allow visitation in an trauma/intensive care setting unless they have legitimate medical
reasons for precluding visitation, I do not believe that the Florida Supreme Court would follow
Accordingly, Counts I-III are DISMISSED WITHOUT PREJUDICE as to the Public Health Trust.
3. COUNTS I-III: THE IMPACT RULE
Assuming I have erred on my rulings on duty, and in case there is an appeal, I address
Florida’s impact rule and its application to Counts I-III.
The existence of a duty does not mean that Counts I-III survive the defendants’ motion to
dismiss. Nor does the possibility of a breach of duty. The defendants argue that the impact rule bars
the plaintiffs’ claims for emotional distress damages, while the plaintiffs assert that the rule should
not be applied in this case.
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Generally stated, the impact rule provides that “[b]efore a plaintiff can recover damages for
emotional distress caused by the negligence of another, the emotional distress injuries suffered must
flow from personal injuries the plaintiff sustained in an impact. The rule actually requires some
impact on the plaintiff or, in certain situations, the manifestation of severe emotional distress such
as physical injuries or illness.” Fla. Dep’t of Corr. v. Abril, 969 So.2d 201, 206 (Fla. 2007)
(citations omitted). The impact rule, however, is more easily stated than applied, for the Florida
Supreme Court has ruled in a number of cases that certain tort scenarios present exceptions to the
rule. See, e.g., Abril, 969 So.2d at 206-07 (impact rule does not bar recovery by patient of emotional
distress damages in claim for negligent disclosure of HIV test results); Gracey v. Eaker, 837 So.2d
348, 356 (Fla. 2002) (impact rule does not bar claim for emotional distress resulting from
psychotherapist’s breach of confidentiality); Tanner v. Hartog, 696 So.2d 705, 708-09 (Fla. 1997)
(impact rule inapplicable in claim for negligent stillbirth); Kush v. Lloyd, 616 So.2d 415, 422-23
(Fla. 1992) (impact rule does not apply to claim of wrongful birth of deformed child because the rule
is not generally applicable (a) if emotional damages are an additional “parasitic” consequence of
conduct that is itself a freestanding tort, or (b) to “recognized torts in which damages often are
predominantly emotional, such as defamation or invasion of privacy”).
The Florida Supreme Court has noted that it is difficult to predict how it will apply (or not
apply) the impact rule, see, e.g., Tanner, 696 So.2d at 708 (“[w]e recognize that there is a legitimate
legal argument which can be directed against any particular legal theory upon which recovery in the
instant case might be predicated and that the law does not provide a remedy for every wrong”), and
several Justices on both sides of the impact rule debate have criticized the Court’s ad hoc approach.
Compare, e.g., Abril, 969 So.2d at 208-09 (Pariente, J., concurring) (noting that Court’s “case-bycase
approach as to the impact rule has done nothing to stabilize the law or to clarify when an
exception will be recognized,” and calling for abrogation of impact rule), with, e.g., Gracey, 837
So.2d at 359-62 (Harding, J., dissenting) (criticizing ad hoc approach and advocating adherence to
impact rule). The short of the matter is that there is no good way to figure out whether or not the
Florida Supreme Court would apply the impact rule in this case. Predicting the Florida Supreme
Court’s future approach to the impact rule is even more perilous given that the Court now has four
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Fortunately, there is an Eleventh Circuit case which indicates that the impact rule will apply
in cases like this one. In Gonzalez-Jimenez de Ruiz v. United States, 378 F.3d 1229 (11th Cir. 2004),
the common-law wife of a federal prisoner who died from cancer while in custody filed an action
against the United States under the Federal Tort Claims Act on behalf of herself and her children.
The complaint included claims for intentional infliction of emotional distress and negligent infliction
of emotional distress, based on allegations that Bureau of Prison officials had not told the wife the
truth about her husband’s terminal condition, had failed to provide her and her family with
reasonable access to her husband during his illness, had failed to inform them of her husband’s
death, and had delayed in transporting her husband’s remains. The Eleventh Circuit, applying
Florida law under the FTCA, see id. at 1230 n.1, dismissed the wife’s claims for lack of standing,
but then addressed the children’s claim for negligent infliction of emotional distress. It affirmed the
district court’s ruling that the children had failed to allege sufficient physical injury as a result of the
emotional trauma: “The facts alleged do not come anywhere close to constituting significant physical
injury. While the children claim they suffered mental anguish from the BOP’s actions, they failed
to establish any major adverse physical impact.” Id. at 1231.
Gonzalez-Jimenez de Ruiz does not have identical facts because it involved medical treatment
of an inmate at a prison medical facility, but some of the allegations and claims (e.g., withholding
information about a patient’s condition, failing to provide access to a patient) nonetheless generally
mirror those made by the plaintiffs here. In the absence of any other relatively similar Florida cases,
I conclude that Gonzalez-Jimenez de Ruiz and other Florida cases arising in the health care setting
require application of the impact rule here. These other Florida cases include Cowart, 891 So.2d
at 1043 (applying impact rule and precluding recovery for emotional distress by emergency room
patient who was bitten by spider, where bite itself was not actionable), Brooks v. South Broward
Hospital District, 325 So.2d 479-80 (Fla. 4th DCA 1975) (applying impact rule to bar negligence
claim by parents of deceased newborn child against hospital for having lost child’s body), and Carter
v. Lake Wales Hospital Ass., 213 So.2d 898, 899-900 (Fla. 2nd DCA 1968) (applying impact rule to
reject negligence claim of parents against hospital whose employees mistakenly allowed parents’
newborn child to be taken home by a third person). Thus, in order to state a claim on Counts I-III,
the plaintiffs must allege facts that satisfy the impact rule.
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None of the plaintiffs have alleged that the defendants’ alleged wrongful actions led to a
physical impact of any sort. Where, as here, “the plaintiff has not suffered an impact, the
complained-of mental distress must be ‘manifested by physical injury,’ the plaintiff must be
‘involved’ in the incident by seeing, hearing, or arriving on the scene as the traumatizing event
occurs, and the plaintiff must suffer the complained-of mental distress and accompanying physical
impairment ‘within a short time’ of the incident.” Willis v. Gami Golden Glades, LLC, 967 So.2d
846, 850 (Fla. 2007). The psychological trauma “must cause a demonstrable physical injury such
as death, paralysis, muscular impairment, or similarly objectively discernible physical impairment
before a cause of action may exist. . . . [T]here is no cause of action for psychological trauma alone
when resulting from simple negligence.” Brown v. Cadillac Motor Car Division, 468 So.2d 903,
Ms. Langbehn alleges that, as a result of the defendants’ conduct, while at Ryder she became
physically ill, experienced stomach pain and nausea, and vomited. Thereafter, she suffered
exacerbation of her multiple sclerosis symptoms requiring hospitalization not long after the events
at Ryder. These allegations by Ms. Langbehn, though somewhat thin, would be sufficient to satisfy
the impact rule at this stage of the litigation (assuming there was a duty and a sufficiently alleged
breach). See Zell v. Meek, 665 So.2d 1048, 1049 (Fla. 1995) (“the interval of time between the
psychic trauma and the physical manifestation is one factor in proving causation”).
Ms. Pond and the children do not fare as well in terms of the impact rule. With respect to
Ms. Pond, the amended complaint alleges that she was semi-conscious and responsive upon arrival
at 3:30 p.m. and for several hours afterwards. The amended complaint also alleges that she was
restrained throughout the evening for her own protection, and that she was touched in the course of
treatment. As the defendants correctly point out, however, to satisfy the impact rule the contact
must be part of the alleged wrongful conduct. Compare Willis, 967 So.2d at 850-51 (robber’s
putting of pistol to plaintiff’s head during robbery satisfied impact rule where claim for negligent
infliction of emotional distress was based on hotel’s alleged negligence in failing to provide adequate
security), with R.J. v. Humana of Fla., 652 So.2d 360, 364 (Fla. 1995) (stating, in case involving
alleged negligent misdiagnosis, “that touching of a patient by a doctor and the taking of blood for
ordinary testing would not qualify for a physical impact,” but “other more invasive medical treatment
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or the prescribing of drugs with toxic or adverse side effects would so qualify”). Cf. Hagan v. Coca-
Cola Bottling Co., 804 So.2d 1234, 1241-42 (Fla. 2001) (ingestion of soft drink which was
contaminated by substance constitutes impact and allows claim for emotional distress). Here any
touching of Ms. Pond by medical personnel during the course of her treatment, including the use of
restraints, is not alleged to be independently wrongful. There is no claim of medical malpractice,
and no claim of lack of informed consent. Ms. Pond therefore does not satisfy the impact rule on
Counts I-III. The children’s allegations (severe psychological distress, trauma, insomnia, nightmares,
nausea, severe depression, and symptoms of post-traumatic stress disorder) also do not set forth the
sort of resulting physical injury required by Florida law. The complaint does allege in Count II, that
the children have suffered “physical injury.” That allegation, however, is conclusory, lacks any
factual nexus, and is devoid of any supporting facts so as to survive a motion to dismiss. See
Twonbly, 550 U.S. at 555-56; see Gonzalez-Jimenez, 378 F.3d at 1231.
4. COUNT IV: THE NEGLIGENCE PER SE CLAIM
Turning to Count IV, the negligence per se claim against the Public Health Trust, I conclude
that it should be dismissed without prejudice. At oral argument, the plaintiffs characterized their
negligence per se claim as a “stretch,” and I think this was an accurate description. Negligence per
se may be pled as a theory if there is a violation of a strict liability statute or rule designed to protect
a “certain class of persons from their inability to protect themselves, such as one prohibiting the sale
of firearms to minors,” or a violation of a statute or rule which “establishes a duty to take precautions
to protect a particular class of persons who are unable to protect themselves from a particular injury
or type of injury.” See deJesus v. Seaboard Coast R.R. Co., 281 So.2d 198, 200-01 (Fla. 1973).
Significantly, however, not every violation of a statute or rule constitutes negligence per se; if, for
example, a statute only protects the public at large, a violation may only be used as evidence of
negligence. See, e.g., Lingle v. Dion, 776 So.2d 1073, 1077 (Fla. 4th DCA 2001) (surgeon’s failure
to maintain hospital staff privileges did not constitute negligence per se in medical malpractice
action, as statutes and rules in question – though regulating medical practice and providing for
disciplinary actions – did not “purport to give any protections to any particular class of people
beyond the public at large”).
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The defendants’ 7 citation to cases such as Murthy v. N. Sinha Corp., 644 So.2d 983, 985 (Fla.
1994), is not very helpful. These cases focus on legislative intent, but only in the context of
addressing whether a cause of action will be allowed under a statute that is silent on the issue.
Negligence per se and implied causes of action are separate legal concepts, and the plaintiffs are not
seeking to sue directly under the Patients’ Bill of Rights or the Florida Health Care Surrogate Act.
In Count IV, the plaintiffs allege that the Public Health trust, through its employees and
agents, failed to honor Ms. Langbehn’s power of attorney and failed to recognize the relationships
of Ms. Langbehn and the children. This, the plaintiffs say, violated (1) Jackson’s patients’ bill of
rights, (2) Jackson’s policies concerning social work and discharge planning, (3) Jackson’s advance
directives policies, and (4) the standards of the Joint Commission on Accreditation of Healthcare
Organizations (of which Jackson is a member hospital). None of these sources, even if violated,
permit a negligence per se claim. Jackson’s internal policies are not statutes enacted by the
legislature or regulations duly issued by an administrative agency. The same goes for the standards
of the Joint Commission.
In their response to the motion to dismiss, the plaintiffs rely on Fla. Stat. § 381.026, the socalled
Patients’ Bill of Rights, and Fla. Stat. §§ 765.202-205, 765.1103, the Florida Health Care
Surrogate Act. The plaintiffs say in their response that Ms. Pond was denied palliative care, that Ms.
Langbehn was not notified in writing that her surrogacy had commenced, and that Ms. Langbehn was
not provided access to Ms. Pond’s medical records for purposes of making health care decisions.
Neither of the statutes cited by the plaintiffs suffices.7 First, the Patients’ Bill of Rights is only
applicable to Ms. Pond (and now to her Estate), and the Healthcare Surrogate Act is only applicable
to Ms. Langbehn. Thus, Ms. Langbehn cannot assert a negligence per se claim under the Patients’
Bill of Rights, the Estate cannot assert a negligence per se claim under the Healthcare Surrogate Act,
and the children cannot assert a negligence per se claim under either statute. Second, the Patients’
Bill of Rights specifically states that “[t]his section shall not be used for any purpose in any civil or
administrative action ad neither expands nor limits any rights or remedies provided under any other
law.” Fla. Stat. § 381.026(3). Given this language, it is apparent (at least to me) that the statute is
not meant to protect a particular class of people from a particular injury or risk of injury. Third, the
Health Care Surrogate Act does not impose any duties on hospitals or medical professionals that are
meant to protect a specific class of persons from a certain type of injury or risk of injury. The
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plaintiffs’ suggestion that the Act “implies” certain rights and correlative duties does not carry the
day. Cf. Paterson v. Deeb, 472 So.2d 1210, 1216 & n.5 (Fla. 1st DCA 1985) (although it imposed
numerous obligations on landlords, the Florida Residential Landlord & Tenant Act, Fla. Stat. § 83.40
et seq., was not the sort of legislative enactment that would support a negligence per se claim).
In addition, there are other problems with the negligence per se claim. Although the
plaintiffs suggest in their response that Ms. Pond was denied appropriate palliative care, there are
no allegations in the amended complaint to support such a claim or inference. So even if the Health
Care Surrogate Act could generally support a negligence per se claim by Ms. Langbehn, the
allegations in the complaint are insufficient insofar as they relate to any denial of palliative care.
Moreover, the plaintiffs themselves allege that the power of attorney was received around 4:15 p.m.
and subsequently placed in Ms. Pond’s patient file. It is difficult to see how Ms. Langbehn suffered
any injury or damages from the defendants’ alleged failure to provide her with written notification
that her surrogacy had begun. See Roberts v. Shop & Go, Inc., 502 So.2d 915, 917 (Fla. 2nd DCA
1996) (plaintiff proceeding on negligence per se theory must still show that statutory violation
proximately caused his injury). Finally, even if the defendants denied Ms. Langbehn access to Ms.
Pond’s medical records, there is no allegation in the amended complaint that Ms. Langbehn was
unable to make a decision as to medical care or that her decision would have been different had the
medical records been provided. Given that the plaintiffs themselves allege that doctors at Ryder did
consult with Ms. Langbehn as to the brain monitor and possible surgery for Ms. Pond, and that the
amended complaint does not allege that anyone other than Ms. Langbehn made any decisions as to
Ms. Pond’s medical care, Ms. Langbehn did not suffer any damages from the denial of medical
records. See id.
In sum, Count IV is DISMISSED WITHOUT PREJUDICE as to the Public Health Trust.
B. COUNT V: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
In Count V, Ms. Langbehn and the children sue Mr. Frederick and Doctors Zauner and Cruz
for intentional infliction of emotional distress. This claim fails as a matter of law.
Count V is based on the allegations that Mr. Frederick and Doctors Zauner and Cruz (1)
allowed Ms. Pond to move to certain death without letting her family members see her or say
goodbye; (2) did not allow family members access to Ms. Pond and did not allow them to comfort
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Ms. Pond or be comforted by her in her final hours without any medical or other legitimate
justification; (3) refused to treat Ms. Langbehn and the children as Ms. Pond’s family members in
her last few hours where no medical necessity existed; (4) denied Ms. Langbehn the opportunity to
be with Ms. Pond during the last hours of her life; and (5) refused to timely acknowledge the power
of attorney or otherwise consult with Ms. Langbehn about Ms. Pond’s medical history, wishes, and
treatment in a timely and ongoing fashion.
Under Florida law, the tort of intentional infliction of emotional distress is difficult to
establish. “[M]ere insults and indignities” are not enough, see Koutsouradis v. Delta Air Lines, Inc.,
427 So.2d 1339, 1344 (11th Cir. 2005), and a plaintiff must show, among other things, that the
conduct of the defendant was “so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
society.” Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla. 1985) (quoting from
and adopting standard from the Restatement (Second) of Torts, § 46, comment d (1965)). Whether
alleged conduct is so outrageous as to allow a jury to find a defendant liable for intentional infliction
of emotional distress is a question of law for the court. See, e.g., Liberty Mutual Ins. Co. v.
Steadman, 968 So.2d 592, 595 (Fla. 2nd DCA 2007); De la Campa v. Grifols America, Inc., 819
So.2d 940, 943 (Fla. 3rd DCA 2002); Johnson v. Thigpen, 788 So.2d 460, 465 (Fla. 1st DCA 2001);
Paul v. Humana Medical Plan, Inc., 682 So.2d 1119, 1122 (Fla. 4th DCA 1996).
Given the allegations in the complaint, the defendants may not have allowed the plaintiffs
as much visitation as medically permitted or warranted at Ryder, but they did permit Ms. Langbehn
to see Ms. Pond for several minutes (at around 6:50 p.m.) when last rites were administered. The
plaintiffs, moreover, do not allege that they were denied access to, or visitation with, Ms. Pond after
her transfer (at around 10:30 p.m.) and before she died. As to the issue of consent, at around 5:20
p.m. medical personnel at Ryder obtained Ms. Langbehn’s permission to place a brain monitor on
Ms. Pond, and doctors consulted with Ms. Langbehn around 6:10 p.m. to discuss Ms. Pond’s
condition and surgical options. During this consultation, the doctors learned that Ms. Pond’s
condition had deteriorated to the point where surgery was no longer a viable option, and so advised
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8To the extent it matters, the plaintiffs cannot hold Doctors Zauner and Cruz responsible for
any anti-gay comments made by Mr. Frederick. An individual is liable for the tortious act of another
only where the individual engages in the act “act in concert or pursuant to a common design with the
other person, or giv[es] substantial assistance or encouragement to the other person with knowledge
that the other’s conduct constitutes a breach of duty.” See, e.g., Boggs v. Die Fliedermaus, LLP, 255
F.Supp.2d 291, 293 (S.D.N.Y. 2003) (applying Restatement (Second) of Torts § 876 to determine
whether an individual was liable for the defamatory statement of another) (citations omitted); Roos
v. Morrison, 913 So.2d 59, 67 n.1 (Fla. 1st DCA 2005) (relying on the Restatement (Second) of Torts
§ 876 to determine whether joint liability was warranted). See also Lay v. Roux Laboratories, Inc.,
379 So.2d 451, 452 (Fla. 1st DCA 1980) (finding that “vicious verbal attacks” and racial epithets
constitute “extremely reprehensible” conduct, but, without more, are insufficient to show intentional
inflection of emotional distress). In addition, contrary to Mr. Frederick’s statements that Ms.
Langbehn should not expect to be provided with any information on the condition of Ms. Pond, Ms.
Langbehn was accepted as Ms. Pond’s health care surrogate and was consulted as to Ms. Pond’s
Ms. Langbehn. This, therefore, is not a case in which all access to a terminally ill patient was denied,
or in which a health surrogate was not consulted at all on medical treatment or options.8
There are a number of cases which, though not directly on point, indicate that the alleged
conduct here is not “so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
society.” McCarson, 467 So.2d at 278-79. These cases include Foreman v. City of Port St. Lucie,
2008 WL 4356273, *2 (11th Cir. 2008) (plaintiff’s allegation that police officer pointed BB gun
(which she did not know was empty) at her husband’s chest and pulled the trigger did not establish
intentional infliction of emotional distress under Florida law), Koutsouradis v. Delta Air Lines, Inc.,
427 F.3d 1339, 1344-45 (11th Cir. 2005) (male airline employee’s licking lips and making sexually
explicit comments to female passenger after discovering vibrator in her checked luggage, although
distasteful and prompting laughter from other male employees men in the area, did not permit claim
for intentional infliction of emotional distress), Paul, 682 So.2d at 1120-22 (plaintiff/patient
ultimately diagnosed with cancer of the larynx failed to state claim for intentional infliction of
emotional distress against doctor whom she first had to see under terms of health insurance plan,
despite allegations that doctor failed to diagnose cancer, failed to refer her to an ear, note and throat
specialist even after she was diagnosed with cancer, prematurely discharged her after surgery for
total laryngectomy, and instructed her husband to clean the surgical site and care for her), and
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Scheller v. Am. Medical Int’l, Inc., 502 So.2d 1268, 1270-71(Fla. 4th DCA 1987) (even though
hospital and its employees denied pathologist basic support services, falsely accused pathologist of
theft, evicted pathologist from his office, gave medical records of pathologist’s patients to other
doctors without pathologist’s consent, and published false information about pathologist’s income,
conduct was not so outrageous as to allow a claim for intentional infliction of emotional distress).
Compare Steadman, 968 So.2d at 595-96 (delay of workers’ compensation carrier in paying for lung
transplant ordered by judge, by itself, was not enough to constitute tort of intentional infliction of
emotional distress, but plaintiff nevertheless stated claim because she also alleged that carrier
delayed the payment based on her limited life expectancy and knew that emotional distress caused
by delay could cause plaintiff’s death and eliminate need for payment).
Also of note is Gonzalez-Jimenez de Ruiz, discussed earlier. In that case, the common-law
wife of a federal prisoner who died from cancer while in custody filed an action against the United
States under the Federal Tort Claims Act on behalf of herself and her children. She alleged prison
officials had not told her the truth about her husband’s terminal condition, had failed to provide her
and her family with reasonable access to her husband during his illness, had failed to inform them
of her husband’s death, and had delayed in transporting her husband’s remains. Applying Florida
law, see 378 F.3d at 1230 n.1, the Eleventh Circuit ruled that the common-law wife’s claims failed
for lack of standing, but ruled that the claims of the children for intentional infliction of emotional
distress failed because it was not shocking or unexpected that access to prisoners was restricted, and
because substandard medical care – though regrettable – and deception did not meet the requisite
standard. See id. at 1231.
Count V is therefore DISMISSED WITHOUT PREJUDICE as to all defendants.
C. COUNTS VI-VIII: BREACH OF A FIDUCIARY RELATIONSHIP
In Count VI, Ms. Pond’s Estate sues the Public Health Trust and Doctors Zauner and Cruz
for breach of a fiduciary relationship. In Count VII, Ms. Langbehn sues the Public Health Trust and
Doctors Zauner and Cruz for breach of a fiduciary relationship. In Count VIII, Ms. Langbehn and
the children sue the Public Health Trust and Mr. Frederick for breach of a fiduciary relationship.
Addressing these claims in reverse order, Counts VII and VIII are dismissed without
prejudice. The existence of a general duty under negligence law does not mean that there is a
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9A doctor also does not have any privity with, or owe any duty to, members of the general
public. See Joseph v. Shafey, 580 So.2d 160, 160 (Fla. 3rd DCA 1990).
corresponding fiduciary duty. As the Florida Supreme Court has explained, “under Florida law,
negligence claims and breach of fiduciary duty are separate causes of action.” Wachovia Ins.
Services, Inc. v. Toomey, 994 So.2d 980, 990 (Fla. 2008). In order for there to be a breach of a
fiduciary relationship, there must of course be a fiduciary relationship, such as where “confidence
is reposed by one party and trust accepted by the other. To establish a fiduciary relationship, a party
must allege some degree of dependency on one side and some degree of undertaking on the other
side to advise, counsel, and protect the weaker party.” Brigham v. Brigham, 2009 WL 454492, *12
(Fla. 3rd DCA 2009) (quotation marks and citations omitted). Even in the medical malpractice
context, a doctor generally does not have a special relationship or owe a duty towards the relatives
of a patient. See, e.g., Santa Cruz v. Northwest Dade Comm. Health Center, Inc., 591 So.2d 444,
445 (Fla. 3rd DCA 1991) (health center did not have “special relationship” with patient’s brother, and
therefore could not be sued for medical malpractice when patient shot brother following treatment).9
There are exceptions in the malpractice context, such as where a doctor knows his patient has a
genetically transferable condition. In that scenario, a doctor has a duty to warn the patient of the
nature of the condition and of the importance of testing his or her children for the condition, and that
duty also runs to the patient’s children despite the lack of privity. But that duty towards the children
can be discharged by simply providing the warning to the patient, given that in most instances a
doctor is prevented from disclosing the patient’s medical condition to others without the patient’s
consent. See Pate, 661 So.2d at 281. As far as I can tell, no court has held (or even suggested) that
a doctor at a trauma center, or a social worker at such a facility, has a fiduciary relationship with a
patient’s relatives (even those who are health care surrogates) so as to require the doctor or social
worker to allow the relatives visitation with the patient, or provide crisis and bereavement
counseling, or keep the relatives apprised of the patient’s status. As a matter of law, Mr. Frederick
and Doctors Zauner and Cruz did not have a fiduciary relationship with the family members of their
patient, Ms. Pond, that imposed upon them a duty to do these things.
Count VI is brought by Ms. Pond’s Estate. The amended complaint alleges that Doctors
Zauner and Cruz breached their fiduciary obligations toward Ms. Pond by failing to give Ms.
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10The Washington case cited by the plaintiffs as supplemental authority, Reed v. ANM Health
Care, 147 Wash. App. 1044, 2008 WL 5157869 (Ct. App. Div. 1 2008), does not involve a claim
for breach of fiduciary duty.
Langbehn access to Ms. Pond, failing to treat Ms. Pond with respect by denying her visitation
privileges during an 8-hour period “while she moved from brain activity to brain death without
medical or legitimate justification,” failing to provide medical treatment to Ms. Pond in accordance
with her wishes, and failing to respond to Ms. Pond’s “requests for reasonable family visitation” as
expressed through Ms. Langbehn, discriminating against Ms. Pond and her family based on her
sexual orientation and/or same-sex relationship, and failing to acknowledge or recognize her validly
executed health care power of attorney. Ms. Pond’s Estate seeks damages for “indignities and
emotional injury” suffered by Ms. Pond.
The Florida Supreme Court has recognized that there is a fiduciary relationship between a
doctor and his patient, such that the doctor breaches his fiduciary duty if he discloses confidential
information, see Gracey, 837 So.2d at 354-55, or conceals facts known about harm done to the
patient, see Nardone v. Reynolds, 333 So.2d 25, 29 (Fla. 1976) (discussing issue in context of tolling
of statute of limitations for fraudulent concealment), receded from on other grounds, Hearndon v.
Graham, 767 So.2d 1179 (Fla. 2000). The alleged breaches set forth in the amended complaint,
however, do not come close to these scenarios, and Ms. Pond’s Estate has not cited any cases (from
anywhere in the country) which hold that a doctor breaches his fiduciary duty to a trauma patient by
failing to allow visitation by spouses, partners, children, or relatives.10
To the extent that Count VI alleges in a conclusory manner that Doctors Zauner and Cruz
failed to give effect to Ms. Langbehn’s rights as the health care surrogate, that conclusory allegation
is contradicted by more specific allegations in the amended complaint. For example, as noted earlier,
at 5:20 p.m. doctors spoke to Ms. Langbehn about the need for a brain monitor, and she agreed to
the placement of such a monitor. And at around 6:10 p.m. doctors consulted with Ms. Langbehn
about Ms. Pond’s condition and surgical options. During a speaker phone conversation between the
doctors, Ms. Langbehn, and Ms. Pond’s parents, the doctors learned out that Ms. Pond’s condition
had deteriorated and that surgery was not advisable. At that time, Ms. Langbehn, apparently
recognizing that Ms. Pond would not recover, told the doctors that Ms. Pond was an organ donor.
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In short, the more specific factual allegations in the amended complaint, which govern over more
general ones, demonstrate beyond any doubt that Ms. Langbehn was not denied the right to make any
medical decisions on behalf of Ms. Pond.
Count VI is therefore DISMISSED WITHOUT PREJUDICE as to all defendants.
The defendants’ motion to dismiss is GRANTED. Counts I-IV are DISMISSED WITH PREJUDICE
as to the individual defendants, and are DISMISSED WITHOUT PREJUDICE as to the Public Health Trust.
Counts V-VIII are DISMISSED WITHOUT PREJUDICE as to all defendants.
If the plaintiffs’ allegations are true, which I assume that they are when deciding the
defendants’ 12(b)(6) motion to dismiss, the defendants’ lack of sensitivity and attention to Ms.
Langbehn, Ms. Pond, and their children caused them needless distress during a time of vulnerability.
The defendants’ failure to provide Ms. Langbehn and her children frequent updates on Ms. Pond’s
status, to allow Ms. Langbehn and her children to visit Ms. Pond after emergency medical care
ceased; to inform Ms. Langbehn that Ms. Pond had been transferred to the intensive care unit, and
to provide Ms. Langbehn Ms. Pond’s medical records as she requested, exhibited a lack of
compassion and was unbecoming of a renowned trauma center like Ryder. Unfortunately, no relief
is available for these failures based on the allegations plead in the amended complaint.
If the plaintiffs want to file a second amended complaint, they must do so by October 16,
2009. If no second amended complaint is filed, this case will be closed.
DONE and ORDERED in chambers in Miami, Florida, this 28th day of September, 2009.
United States District Judge
Copy to: All counsel of record
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