Lawsuit Info

Filing 6.25.08/ MTD 9.29.09

http://www.lambdalegal.org/in-court/cases/langbehn-v-jackson-memorial

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

MIAMI DIVISION

CASE NO. 08-21813-CIV-JORDAN

JANICE LANGBEHN, individually and as

Representative of the Estate of LISA

MARIE POND, DANIELLE LANGBEHNPOND,

KATELYN LANGBEHN-POND,

and DAVID LANGBEHN-POND

Plaintiffs

vs.

THE PUBLIC HEALTH TRUST OF

MIAMI-DADE COUNTY, d/b/a JACKSON

MEMORIAL HOSPITAL, GARNETT

FREDERICK, DR. ALOIS ZAUNER, and

DR. CARLOS ALBERTO CRUZ

Defendants

____________________________________

))))))))))))))))

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).

2

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

was located.

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).

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severe psychological distress, trauma, nausea, insomnia, nightmares, severe depression, and

symptoms of post-traumatic stress disorder.

III. DISCUSSION

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

11:30 p.m.

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).

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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

Reed.

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

new Justices.

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14

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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15

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,

904 (1985).

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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16

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.

17

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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18

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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19

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

treatment.

20

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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21

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).

22

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.

23

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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24

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.

IV. CONCLUSION

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.

_______________________

Adalberto Jordan

United States District Judge

Copy to: All counsel of record

Case 1:08-cv-21813-AJ Document 47 Entered on FLSD Docket 09/29/2009 Page 24 of 24

One thought on “Lawsuit Info

  1. Pingback: 2010 in review « The Langbehn-Pond Family

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