CLEVELAND CLINIC FLORIDA HEALTH SYSTEM NONPROFIT CORPORATION аnd CLEVELAND CLINIC FLORIDA v. ANDREA S. ORIOLO, as Personal Representative for the ESTATE OF SAVERIO SASSO
No. 4D22-1398
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
January 25, 2023
Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michele Towbin-Singer, Judge; L.T. Case No. CACE19026017.
Marc J. Schleier and June G. Hoffman of Fowler White Burnеtt, P.A., Miami, for appellants.
Philip D. Parrish of Philip D. Parrish, P.A., Miami, and Diana Santa Maria of the Law Offices of Diana Santa Maria, P.A., Fort Lauderdale, for appellee.
Appellants, Cleveland Clinic Florida Health System and Cleveland Clinic Florida, appeal a non-final order granting appellee‘s motion to amend a wrongful death medical malpractice complaint to assert a claim for punitive damages. We reverse because appellee failed to satisfy the requirements to establish entitlement to assert a claim for punitive damages against a corporation pursuant to
Appellee, as personal representative of the decedent‘s estate, filed the underlying wrongful death action against appellants. The complaint now under review alleges that the decedent was admitted to the hospital through the emergency room, and whеn his condition deteriorated, health care providers performed an intubation that caused fatal brain injuries. Appellee‘s suit did not include as defendants the health care providers, even though she contends they wеre grossly negligent in providing the decedent care and treatment during the intubation. Instead, appellee brings these claims against appellants for vicarious liability as the health care providers’ employer.
Appellee subsequently sought leave of the court to assert a claim for punitive damages against appellants for the health care providers’ alleged gross negligence. Appellee further asserts appellants actively and knowingly participated in such conduct; knowingly condoned, ratified, or consented to such conduct; and/or themselves engaged in conduct that constituted gross negligence that contributed to the decedent‘s death. To support this claim, appellee relied on comments purportedly made by the hospital‘s chief medical officer following the decedent‘s death and arguments related to appеllants’ general failure to follow current policy procedures, make changes to their policies, and use the incident as a teaching opportunity for its interns, residents, and fellows.
Following a hearing, the trial court allowed appellee to amend her complaint to add the punitive damages claim. In its order, the trial court identified the health care providers’ specific acts which the court concluded indicated а conscious disregard for the decedent‘s safety and implicated the hospital as vicariously liable for those actions. The trial court ruled that the proffered evidence showed the doctors and other health care providers were grossly negligent by—contrary to the emergency room physician‘s recommendation—placing the decedent on a floor level with fewer observation checks, failing to attend to the dеcedent during the various emergency calls, and beginning intubation without proper supervision, causing the delayed intubation that led to the decedent‘s death. To support the punitive damages claim against the hospital, the trial court found a jury could conclude that the hospital‘s response to the incident reflects its “condonement and ratification of the [provider‘s] gross negligence.”
We review de novo the trial court‘s purely legal ruling that plaintiff made а “reasonable showing” under
Pertinently,
Appellee did not proffer any evidence to demonstrate that the health care providers’ conduct amounted to “gross negligence” under
Even assuming appellee‘s proffered evidence demonstrated gross negligence by the health care providers, which it did not, the trial court further erred in finding that a jury could reasonably conclude that appellants ratified or condoned that negligence to subject it to punitive damages. Generally, “[b]efore one may infer that a principal ratified an unauthorized act of his agent, the evidence must demonstrate that the principal was [f]ully informed“—beyond having simple constructive knowledge—“and that he approved of the act.” Bach v. Fla. State Bd. of Dentistry, 378 So. 2d 34, 36 (Fla. 1st DCA 1979). Further, it has been long-held that when a party seeks to hold a principal liable on ratification grounds, “it must be shоwn that he ratified upon full knowledge of all material facts, or that he was willfully ignorant ....” Kearney v. Kearney, 129 So. 3d 381, 387 n.10 (Fla. 1st DCA 2013) (quoting Bach, 378 So. 3d at 37); Aerovias Nacionales De Colombia, S.A. v. Tellez, 596 So. 2d 1193, 1195 (Fla. 3d DCA 1992) (concluding there can be no recovery of punitive damages where there is no showing that management “authorized, participated in, consented to, or ratified” its employees’ conduct); see also Manning v. Twin Falls Clinic & Hosp., Inc., 830 P.2d 1185, 1194 (1992) (finding a hospital‘s failure to reprimand or punish its nurses for conduct which led to the decedent‘s death, standing alone, was insufficient to support a finding of rаtification); cf. Corrigan v. Methodist Hosp., 869 F. Supp. 1208, 1213 (E.D. Pa. 1994) (allowing punitive damages claim based on ratification to proceed where a physician sought and received approval to use an experimental device in surgery without the patient‘s consent).
In finding sufficient evidence of ratification, the trial court relied exclusively on conduct that post-dated the health care providers’ actions and the decedent‘s treatment and death. However, actions taken after the happening of a tortious act are not admissible on the issue of punitive damages, nor can those subsequent actions form the basis for bringing such a damage claim. See Jones v. Alayon, 162 So. 3d 360, 365-66 (Fla. 4th DCA 2015) (finding that evidence of post-аccident bad acts can improperly inflame the jury and incite in them the desire to punish the defendant even when no punitive damages were sought).
Appellee acknowledges this flaw in both her pleading and proffer, yet without citation to any controlling authority, argues that “after the fact” evidence can constitute evidence of ratification, condonement, or consent sufficient to support vicarious liability for punitive damаges. We disagree. Here, appellee‘s allegations of post-injury events—including a physician‘s post-death comments, failure to preserve “evidence,” failure to report or properly investigate the death, and failure to conduct remedial training—do not demonstrate that appellants ratified or condoned the providers’ conduct by its pre-injury actions.
In sum, punitive damages are awarded to punish wrongdoers and to deter them from committing similar bad acts in the future. See Grove Isle, 350 So. 3d at 829-30; Blundell v. R. J. Reynolds Tobacco Co., 324 So. 3d 1014, 1016 (Fla. 1st DCA 2021) (citations omitted).
Accordingly, we reverse the order under review and remand for further proceedings consistent with this opinion.
Reversed and remanded.
GROSS and KUNTZ, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.