CopyCited 22 times | Published | Florida 2nd District Court of Appeal | 2004 WL 2008478
...ceased (the Personal Representative). The complaint alleged that Dr. Fassy and PMA breached their statutory duty to Julia Morgan (the Decedent), a developmentally disabled person, under the Bill of Rights of Persons Who Are Developmentally Disabled, section 393.13, Florida Statutes (2002) (the Bill of Rights). Specifically, the complaint alleged that Dr. Fassy and PMA breached their duty under the Bill of Rights to keep the Decedent free from harm when she was excessively medicated through an implanted pain medication pump, causing her death. Section 393.13(3)(g) provides: "Persons who are developmentally disabled shall have a right to be free from harm, including unnecessary physical, chemical, or mechanical restraint, isolation, excessive medication, abuse, or neglect." In the circuit court, Dr....
...laintiff must rely on the medical negligence standard of care as set forth in section
766.102(1). Following the analysis set forth in Integrated Health Care Services, the circuit court denied Dr. Fassy and PMA's motion to dismiss, ruling that "since section
393.13(4)(c) sets forth its own standard of care, the presuit requirements of chapter 766 do not apply." The circuit court departed from the essential requirements of law when it ruled that section
393.13(4)(c) set forth a standard of care applicable to the lawsuit at issue....
..., §
400.023(1). For these reasons, the presuit requirements of chapter 766 did not apply to a lawsuit seeking to enforce only those rights enumerated in section
400.022. Integrated Health Care Servs.,
840 So.2d at 979-80. The Standard of Care Under Section
393.13(4)(c) The Personal Representative contends that Integrated Health Care Services is analogous to this case because the Bill of Rights created a statutory right, not mentioned in chapter 766, under section
393.13(3)(g) and a private cause of action with liability for violations under section
393.13(5). See Baumstein v. Sunrise Cmty., Inc.,
738 So.2d 420, 421 (Fla. 3d DCA 1999). The Personal Representative persuaded the circuit court that a claim founded on section
393.13(3)(g) can be proved by showing a breach of a standard of care other than medical malpractice under section
766.102(1), namely, section
393.13(4)(c), which provides: "Each client shall receive prompt and appropriate medical treatment and care for physical and mental ailments and for the prevention of any illness or disability. Medical treatment shall be consistent with the accepted standards of medical practice in the community." However, by applying section
393.13(4)(c), the circuit court applied the wrong law to the lawsuit before it....
...The complaint alleged that the Decedent was a "person with a developmental disability" as defined in section
393.063(14), but it did not allege that she was a "client," nor is there any suggestion in our limited record that she was a "client." The Bill of Rights protects two distinct categories of rights. First, section
393.13(3) identifies the "RIGHTS OF ALL PERSONS WITH DEVELOPMENTAL DISABILITIES" regardless of whether *366 the persons are clients of the Department. The complaint alleged a violation of section
393.13(3)(g), which protects the right of "[p]ersons who are developmentally disabled" to be free from harm. Second, section
393.13(4) identifies "CLIENT RIGHTS." The circuit court cited the standard of care contained in section
393.13(4)(c), which guarantees the right of each "client" to receive appropriate medical care. Section
393.13(3) and (4) is fully set forth in the endnote. [1] *367 *368 *369 A plain reading of the Bill of Rights reveals that the provisions of section
393.13(3) and section
393.13(4) cannot logically be combined in a lawsuit seeking to enforce the rights of a developmentally disabled person who is not a client. For example, section
393.13(4)(c) lists eight sub-parts prescribing procedures for monitoring a client's drug regime and alternate methods for obtaining informed consent with specific reference to "each client in a residential facility." These sub-parts make sense only in the context of a client receiving services authorized by the Department in a residential facility or other restricted setting. In fact, none of the subsections of section
393.13(4) can be construed as generally applicable to nonclients of the Department. E.g., §
393.13(4)(a)(1) (providing that each client shall be allowed to send and receive sealed, unopened mail); §
393.13(4)(b) (providing that each client has the right to possess his or her own clothing and personal effects). Thus the specific protections of section
393.13(4) are reserved only to clients of the Department. By contrast, section
393.13(3) is applicable to both clients and nonclients by its express terms. Its provisions protect generally applicable rights such as religious freedom, the right to refuse treatment, and the right to vote. §
393.13(3)(b), (h), (j). The distinction between "clients" and "all persons with developmental disabilities" is crucial, and it is carried forward to the liability provision of section
393.13(5), which provides: LIABILITY FOR VIOLATIONS. Any person who violates or abuses any rights or privileges of persons who are developmentally disabled provided by this act shall be liable for damages as determined by law....
...Fassy and PMA would not be able to assert good faith immunity as an affirmative defense to the Personal Representative's claim because the Decedent was not a "client," even though, in the circuit court's view, Dr. Fassy and PMA would be held to a standard of care applicable only to the "treatment" of a "client." Compare § 393.13(4)(c) with § 393.13(5) (each referring to the "treatment" of a "client"). Section 393.13(5) illuminates the importance of the statutory distinction between clients *370 and all persons with developmental disabilities....
...This distinction, affording greater and more specific protections to clients, accords with the Bill of Rights' legislative intent, which was chiefly concerned with promoting the deinstitutionalization of the developmentally disabled and providing meaningful treatment and habilitation through community-based services. § 393.13(2). The circuit court ignored clear legislative intent expressed on the face of the statute by merging the provisions of subsections (3) and (4) of section 393.13, applying the standard of care specifically limited to clients to a right generally guaranteed to all developmentally disabled persons in a lawsuit that sought to enforce the rights of a nonclient. Under a plain reading of the statute, section 393.13(4)(c) did not set forth a standard of care applicable to the Personal Representative's claim against Dr....
...of statutory interpretation and construction; the statute must be given its plain and obvious meaning."); Pearlstein,
500 So.2d at 587. Thus we are not merely disagreeing with the circuit court's interpretation of an otherwise applicable provision. Section
393.13(4)(c) does not apply....
...In Kaklamanos, our supreme court found clearly established law by looking to the legislative intent underlying the PIP statute and from reading various parts of the statute in pari materia.
843 So.2d at 891-92. Likewise, we find the inapplicability of section
393.13(4)(c) by looking to the Bill of Rights' plain language, structure, and legislative intent expressed therein....
...For these reasons, the circuit court's error was sufficiently egregious or fundamental to warrant our intervention by writ of certiorari. Conclusion We grant the petition for certiorari, finding that the circuit court departed from the essential requirements of law when it ruled that section 393.13(4)(c) set forth a standard of care applicable to a lawsuit seeking to enforce the rights of a nonclient under section 393.13(3)(g). Our limited standard of review precludes us from addressing other questions this original proceeding may raise, such as whether chapter 766 presuit requirements would apply to any cause of action arising under subsection (3) of section 393.13 or subsection (4), or both subsections and, if so, under what circumstances....
...Lang-Redway,
840 So.2d 974, 977 (Fla. 2002), to determine whether a defendant is entitled to section
766.106 presuit screening requirements. Whether section
766.203 presuit requirements apply to a cause of action founded on another statutory right, such as section
393.13(3)(g) here, turns on whether the claim can be proved by showing a breach *372 of some standard of care other than the medical malpractice standard. The answer in this case is not clearly established. Dr. Fassy and PMA argue that the trial court departed from the essential requirements of law by misinterpreting the significance of section
393.13(4)(c) to establish a standard of care outside section
766.102, Florida Statutes (2002). Section
393.13(4)(c) states: Each client shall receive prompt and appropriate medical treatment and care for physical and mental ailments and for the prevention of any illness or disability....
...ines "client" as any person determined eligible by the department for developmental services. The complaint does not allege that Julia Morgan was a "client" as so defined. The trial court thus applied the standard of care guaranteed to clients under section 393.13(4)(c) to a right generally guaranteed to all developmentally disabled persons under section 393.13(3)(g), and thereby based its ruling on a misapplication of subsection (4)....
...The supreme court certainly has it within its rule-making authority to "establish a right of nonfinal appeal if it determines that such a pretrial appeal would be appropriate and cost-effective." Parkway Bank, *373
658 So.2d 646, 650 (Fla.2d DCA 1995). It has not done so, and neither should we. NOTES [1] Endnote:
393.13 Personal treatment of persons who are developmentally disabled. (1) SHORT TITLE.This act shall be known as "The Bill of Rights of Persons Who are Developmentally Disabled." .......
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 1999 WL 454381
...of a private facility owned by the appellee Sunrise Community Incorporated, brought an action against Sunrise and Karen's physician, Dr. Lucrezia Aquino, claiming damages for the defendants' alleged violation of rights guaranteed to such patients by section 393.13, Florida Statutes (1993), the "Bill of Rights of Persons Who are Developmentally Disabled." The trial judge dismissed the complaint on the sole ground that no private cause of action may be asserted under the act....
...her the legislature intended that to be the case. Murthy v. N. Sinha Corp.,
644 So.2d 983 (Fla.1994); see Stone v. Wall,
734 So.2d 1038, 1041 (Fla. 1999)[24 FLW S283, S285]. In this instance, it has clearly answered that question in the affirmative. Section
393.13(5) provides: (5) LIABILITY FOR VIOLATIONS....
...ission, habilitative programming, education, treatment, or discharge of a client. However, this section shall not relieve any person from liability if such person is guilty of negligence, misfeasance, nonfeasance, or malfeasance. [emphasis supplied] § 393.13(5), Fla....
...1st DCA 1975), cert. denied,
327 So.2d 33 (Fla.1976), supports their position. Loucks held only that, because of sovereign immunity, a state agency could not be liable for a violation of the Mental Health Act even though it contained a section similar to
393.13(5)....
...misplaced, see, e.g., Ala.Code § 38-9C-8 (1992); Iowa Code § 225C.29 (1994); Kan. Stat. § 39-1802 (1998); see also Pennhurst State School & Hosp. v. Halderman,
451 U.S. 1,
101 S.Ct. 1531,
67 L.Ed.2d 694 (1981), because none contain anything like
393.13(5)....
CopyCited 3 times | Published | District Court, S.D. Florida | 2011 WL 7661425, 2011 U.S. Dist. LEXIS 154858
...at 717 (citation omitted). CLAIMS OF LANAZA In her ten-count Second Amended Complaint, Lanaza brings the following claims: (1) claims for negligence against Our Kids, One Hope, and DCF, 2d Am. Compl. 19:1, 23:15, 44:11 (Counts I, II, IX); (2) claims under Fla. Stat. § 393.13 against Our Kids, One Hope, and DCF, Id....
...her health, safety, and welfare, both physically and financially. This claim is plausible on its face; therefore, Our Kids and One Hope’s Motions to dismiss Counts I and II of Lanaza’s Second Amended Complaint are denied. II. COUNTS III AND IV: SECTION 393.13 CLAIMS AGAINST OUR KIDS AND ONE HOPE A. Sufficiency of Pleading In Counts III and TV, Lanaza alleges that Our Kids and One Hope violated her rights under Fla. Stat. § 393.13 (2011), the Bill of Rights of Persons with Developmental Disabilities. These Counts consist of one paragraph listing duties allegedly owed under § 393.13, 2d Am....
...receive adequate care and suffered deterioration in her health. 2d Am. Compl. ¶¶ 89, 93. As with Lanaza’s negligence claims, Our Kids and One Hope both assert that she has failed to sufficiently state a claim pursuant to Fed. R.Civ.P. 12(b)(6). Section 393.13 provides numerous rights and privileges to persons with developmental disabilities and “clients,” which include individuals in foster care facilities. Fla. Stat. § 393.13 (4) (citing Fla....
...§
393.067 (2011) for definition of covered “clients”). Subsection (5) states that “[a]ny person who violates or abuses any rights or privileges of persons with developmental disabilities provided by this chapter is liable for damages as determined by law.” Id. at §
393.13(5). The existence of a private right of action under §
393.13 was acknowledged in Baumstein v. Sunrise Cmty., Inc.,
738 So.2d 420 (Fla. 3d DCA 1999). As this is a private civil action, the Iqbal/Twombly pleading standard applies to allegations of a violation of §
393.13 rights....
...In each Count, Lanaza alleges ten different “rights” owed to her under various provisions of the statute. 2d Am. Compl. ¶¶ 87, 91. She finds the source of eight of the ten rights in subsection (2) of the statute. Subsection (2), however, does not expressly set forth rights under § 393.13, but the “Legislative intent” of the statute. Fla. Stat. § 393.13 (2). Here, Lanaza characterizes aspirational intent as right. In fact, the actual rights of disabled individuals are set forth later in subsections (3) and (4). Id. at § 393.13(3)-(4). Subsection (5) states clearly that “any person who violates or abuses any rights and privileges ... provided by this chapter is liable for damages as determined by law.” Id. at § 393.13(5) (emphasis added)....
...Thus, any duties owed to Lanaza under the statute must arise from the rights set forth in subsections (3) and (4), not the intent of section (2). Of ten alleged duties, she only bases two upon actual rights created in the statute: (1) the right to social interaction and community participation, Fla. Stat. § 393.13 (3)(e), 2d Am. Compl. ¶¶ 87(h), 92(h); and (2) the right to receive prompt, appropriate medical care, Fla. Stat. § 393.13 (4)(e), 2d Am....
...necessary medical treatment throughout her twelve years in Wood-burn’s care. 2d Am. Compl. ¶¶ 5961, 65, 70. Our Kids and One Hope are implicated in these allegations relating to Lanaza’s right to receive prompt, appropriate medical care under § 393.13(4)(c)....
...See supra; see also Bailey, 288 Fed.Appx. at 603 . The court finds that the specific allegations described above are sufficient to support a facially plausible claim that Our Kids and One Hope violated Lanaza’s right to receive prompt and appropriate medical care under § 393.13(4)(c). Therefore, to the extent that the Motions seek to dismiss her claim of a violation of her right to receive prompt and appropriate medical care under § 393.13(4)(c), the Motions are denied in part. However, to the extent that the Motions seek to dismiss her claim of a violation of her right to social interaction and community participation, Fla. Stat. § 393.13 (3)(e), the Motions to Dismiss are granted without prejudice. To the extent to Motions seek to dismiss her claim for violating “Legislative intent” of the statute as set forth in Fla. Stat. § 393.13 (2), the Motions are granted with prejudice. B. Statute of Limitations In its Motion, One Hope adopts the legal arguments of Our Kids and DCF. While Our Kids and One Hope did not argue that *1198 Lanaza’s § 393.13 claims were time-barred by the statute of limitations, DCF made such a claim. As set forth below, DCF’s motion to dismiss Lanaza’s § 393.13 claims is dismissed for other reasons, see infra; however, by adoption, One Hope makes the same arguments, warranting consideration here....
...Compl. ¶¶28, 76. Thus, she has plainly alleged facts making it plausible that the seven-year, tolled limitations period applies. As shown above, Lanaza has sufficiently pled violations of her right to receive prompt, appropriate medical care under § 393.13(4)(c)....
...See ECF Nos. 1, 40. Importantly, there were no allegations regarding failures on the part of any Defendants to provide medical services. As these facts were alleged for the first time in the Sec *1199 ond Amended Complaint, Lanaza’s claims under § 393.13 do not relate back to the original Complaint. Therefore, where her § 393.13 claims are not time-barred, Lanaza would only be able to recover for violations that occurred after May 4, 2004 (seven years before filing of the Second Amended Complaint)....
...aid Waiver benefits throughout her time in foster care. These alleged violations occurred both before and during the applicable limitations period. Based on these allegations, it is not clear on the face of Lanaza’s complaint that her claims under § 393.13 relating to her right to receive prompt, appropriate medical care are time-barred....
...efined by Florida law, raising a plausible claim for promissory estoppel against DCF. B. Statute of Limitations DCF further asserts that Count VIII is time-barred by the applicable statute of limitations. As discussed above with regard to Lanaza’s § 393.13 claims against One Hope, dismissal on statute of limitations grounds is appropriate only if it is apparent from the face of the complaint that the claim is time-barred....
...Stat. §
95.051 (l)(d), (h) (2011). This again raises the question of whether the seven-year period attaches to the time of the Second Amended Complaint (May 4, 2011), or to the time of the initial Complaint (March 30, 2009). Unlike her claims under §
393.13, Lanaza’s claim for promissory estoppel does relate back to the original pleading under Fed.R.Civ.P....
...As Lanaza has failed to comply with the mandatory notice requirements of §
768.28, Count IX of Lanaza’s Second Amended Complaint is dismissed without prejudice, and with leave to amend the Complaint alleging proper compliance with the statutory notice provisions. III. COUNT X: SECTION
393.13 CLAIM AGAINST DCF In Count X, Lanaza alleges that DCF also violated her rights under Fla. Stat. §
393.13 . Similarly to Counts III and IV, Count X consists of one paragraph listing ten duties allegedly owed under §
393.13, 2d Am....
...¶ 149, and a final paragraph stating that DCF “breached said duty,” and that as a result Lanaza did not receive adequate care and suffered deterioration in her health. 2d Am. Compl. ¶ 150. Among other assertions in its motion to dismiss, DCF argues that §
393.13 does not authorize claims against the state. It is clear that under §
393.13 there is a private right of action against any “person” who violates the rights provided by the statute, as both the statute and Florida case law demonstrate. Fla. Stat. §
393.13 (5) (2011); see also Baumstein v. Sunrise Community, Inc.,
738 So.2d 420, 421 (Fla. 3d DCA 1999). However, it is not clear that there is such a private right of action against a state agency (i.e. whether a state agency is a “person” under §
393.13). Neither State nor Federal courts in this Circuit have ruled on the question of whether a state or one of its agencies is a “person” under §
393.13. The closest analogy at hand is the Third Circuit Court of Appeals’s holding in Loucks v. Adair,
312 So.2d 531 (Fla. 3d DCA 1975). In that case, the court addressed a statute whose right of action is identical to that of §
393.13, Fla....
...d strictly, and that neither state agencies nor individuals acting in their official capacity could be held liable under the statute. Loucks,
312 So.2d at 534 . Using Loucks as a close analogy, a state agency should likewise not be held liable under §
393.13....
...CONCLUSION In conclusion, as a result of the above findings: 1. The Motions to Dismiss Counts I and II of Lanaza’s Complaint, alleging negligence against Our Kids and One Hope, are denied. 2. The Motions to Dismiss Counts III and IV of Lanaza’s Complaint, alleging violations of her rights under § 393.13 by Our Kids and One Hope are granted in part and denied in part. To the extent that the Motions seek to dismiss her claim of a violation of her right to receive prompt and appropriate medical care under § 393.13(4)(e), the Motions are denied. However, to the extent that the Motions seek to dismiss her claim of a violation of her right to social interaction and community participation, Fla. Stat. § 393.13 (3)(e), the Motions to Dismiss are granted without prejudice. Further, to the extent to Motions seek to dismiss her claim for violating “Legislative intent” of the statute as set forth in Fla. Stat. § 393.13 (2), the Motions are granted with prejudice....
...nd denied with regard to DCF. 6. The Motion to Dismiss Count IX of Lanaza’s Complaint, alleging negligence against DCF, is granted without prejudice. 7. The Motion to Dismiss Count X of Lanaza’s Complaint, alleging violations of her rights under § 393.13, is granted with prejudice....
