Opinion
No. 98-2647.
Opinion filed November 24, 1999.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John A. Frusciante, Judge; L.T. No. 96-13378CACE11.
Beverly A. Pohl, and Bruce S. Rogow of Bruce S. Rogow, P.A., Fort Lauderdale, and Steven D. Miller, Plantation, for appellants.
Paul R. Regensdorf, and Thomas G. Aubin of Akerman, Senterfitt Eidson, P.A., Fort Lauderdale, for Appellee-Cleveland Clinic Florida, a Florida corporation.
ON MOTION FOR REHEARING
We deny appellants' motion for rehearing. The panel decision does not involve a retroactive application of a cause of action created by statute. We agree with appellee that before the passage of the 1995 amendments to Chapter 395, Chapter 766 presuit requirements applied to the cause of action in this case. Chapter 766 applies to claims arising out of the rendering of medical care or services. The negligent failure of the clinic to properly supervise its physician employee and its negligent retention of him arose out of the rendering of medical care or services. See Paulk v. National Med. Enters., Inc., 679 So. 1289 (Fla. 4th DCA 1996); Doe v. Young, 656 So.2d 569, 571 (Fla. 5th DCA 1995) (Cobb, J., concurring); Doe v. HCA Health Servs. of Florida, Inc., 640 So.2d 1177 (Fla. 2d DCA 1994); Martinez v. Lifemark Hosp. of Florida, Inc., 608 So.2d 855 (Fla. 3d DCA 1992). In deciding the central issue of this case — i.e., whether a claim of sexual misconduct by a health care provider is included within the provisions of Chapter 766 — we are not acting as common law judges. Instead, we are merely reading a statute and attempting to ascertain what it means. The terms of this particular statute do not plainly give judges a common law power to fill in gaps by deciding what kinds of claims are subject to its provisions. See Frank Easterbrook, Statutes' Domains, 50 U.Chi.L.Rev. 533, 544-52 (1983). The statute itself sets out to specify what claims are covered by it, and we believe that a claim of sexual misconduct by a doctor during a medical examination or procedure is a "claim arising out of the rendering of . . . medical care or services." § 766.106(1)(a), Fla.Stat. (1993). This particular claim of sexual misconduct was covered by the presuit screening and other provisions of Chapter 766 because that is what the statute says and means.
The obligations of the risk management programs described in Chapters 766 and 395 reinforce this application of the statute. We believe that the conduct at issue in this case fell within the definition of an "[a]dverse or untoward incident" under section 395.002(2)(c), Florida Statutes (1993). The 1995 amendments clarified and expanded the reach of the statute; as appellee argues in its reply to appellants' motion for rehearing, they "did not create some new cause of action or venture into areas unheard of in 1992." See, e.g., Lowry v. Parole Probation Comm'n, 473 So.2d 1248, 1250 (Fla. 1985).
GUNTHER, FARMER, and GROSS, JJ., concur.