197 So. 3d 591
Fla. Dist. Ct. App.2016Background
- In Nov. 2011 Dr. Orlando Morejon presented to Mariners Hospital with abdominal pain and an emergency condition; staff sought transfer to a facility with more specialized services.
- Mariners contacted South Miami Hospital to effectuate the transfer; South Miami refused and Mariners did not contact other hospitals.
- Mariners’ on-call general surgeon performed exploratory surgery, which was complicated; Dr. Morejon later was transferred to Baptist Hospital and survived.
- In Mar. 2015 the Morejons sued Mariners (and South Miami) under Fla. Stat. § 395.1041 (the “anti-dumping” statute), alleging Mariners had a statutory duty to transfer and violated that duty by contacting only South Miami.
- The trial court dismissed the complaint with prejudice, ruling § 395.1041 does not create an obligation to transfer, that the allegations sounded in medical malpractice, and denying leave to amend because the malpractice statute of limitations had expired.
- The Morejons appealed only the dismissal under § 395.1041; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 395.1041 imposes a mandatory duty on hospitals to transfer patients | Morejon: statute creates obligation to transfer; Mariners violated it by contacting only one hospital | Mariners: statute is permissive; it does not impose a duty to transfer and claims are medical malpractice, not statutory violations | Court: § 395.1041 is permissive (uses “may”); no statutory duty to transfer; dismissal affirmed |
| Whether the complaint pleads a viable statutory claim separate from malpractice | Morejon: pleaded statutory violation under § 395.1041 | Mariners: facts concern quality/timing of care—medical malpractice, not an anti-dumping statutory claim | Court: allegations address quality of care and transfer decision; statute does not create transfer duty; plaintiffs could have pursued malpractice but time-barred |
| Whether leave to amend should have been granted to assert malpractice | Morejon: sought chance to amend (implicitly) | Mariners: statute of limitations for malpractice expired; amendment would be futile | Court: trial court properly denied amendment because malpractice claim was time-barred |
| Effect of permissive language (“may”) in § 395.1041 on statutory interpretation | Morejon: argued statute’s transfer-related provisions create enforceable duties | Mariners: “may” is permissive and does not mandate action | Court: applied plain-meaning rule; “may” is permissive here; no basis to read it as mandatory |
Key Cases Cited
- Porter, Brown, Chitty & Pirkle, M.D.P.A. v. Pearson, 793 So. 2d 1012 (Fla. 3d DCA 2001) (referring to § 395.1041 as the anti-dumping statute)
- Charles v. Florida Foreclosure Placement Ctr., LLC, 988 So. 2d 1157 (Fla. 3d DCA 2008) (standard for accepting complaint allegations as true on motion to dismiss)
- Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So. 2d 582 (Fla. 2000) (de novo review of dismissal rulings)
- Acosta v. Richter, 671 So. 2d 149 (Fla. 1996) (plain-meaning is the polestar of statutory construction)
- Fixel v. Clevenger, 285 So. 2d 687 (Fla. 3d DCA 1973) (ordinary meaning of “may” is permissive)
- Sloban v. Florida Bd. of Pharmacy, 982 So. 2d 26 (Fla. 1st DCA 2008) (circumstances when “may” can be read as mandatory)
- Rochester v. State, 95 So. 3d 407 (Fla. 4th DCA 2012) (treatment of permissive statutory language)