Cape Coral Emergency Physicians, LLC, Marten Karlsson, and Keith Burley v. Jane Doe and John Doe

• Court: District Court of Appeal of Florida
• Decided: April 10, 2026
• Docket: 6D2025-1964
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case Nos. 6D2025-1964, 6D2025-1978 CONSOLIDATED Lower Tribunal No. 2025-CA-001373 _____________________________

CAPE CORAL EMERGENCY PHYSICIANS, LLC, MARTEN KARLSSON, and KEITH BURLEY,

Petitioners,

v. JANE DOE and JOHN DOE,

Respondents.

LEE HEALTH SYSTEM, INC., and SHANNON RICE,

v. JANE DOE, JOHN DOE, CAPE CORAL EMERGENCY PHYSICIANS, LLC, MARTEN KARLSSON, and KEITH BURLEY, Respondents.

_____________________________

Petitions for Writ of Certiorari to the Circuit Court for Lee County. James Shenko, Judge.

April 10, 2026 STARGEL, J.

Petitioners, Cape Coral Emergency Physicians, LLC, Marten Karlsson, and

Keith Burley; and Lee Health System, Inc., and Shannon Rice, seek a writ of

certiorari quashing the denial of their motions to dismiss several counts of the

amended complaint filed by Jane Doe and John Doe (collectively “the Does”) for

failure to comply with the presuit requirements for medical malpractice actions

under chapter 766, Florida Statutes (2022). 1 Petitioners argue that the trial court

erred in concluding that the claims at issue were not governed by chapter 766

because they were for sexual assault, not medical malpractice. We find merit in

Petitioners’ argument, grant their petitions, and quash the denial of their motions to

dismiss as it pertains to the claims at issue.

Background

The amended complaint below alleges that on May 8, 2023, Jane Doe

presented to the Cape Coral Hospital emergency department due to complications

with her foley catheter following a hysterectomy. During this visit, the Does allege

that Physician Assistant Marten Karlsson inappropriately performed a vaginal exam

that Doe felt she was forced to undergo. At the time of Doe’s visit to the emergency

1 Cape Coral Emergency Physicians, Karlsson, and Burley filed the petition in Case No. 6D25-1964. Lee Health and Rice filed the petition in Case No. 6D25- 1978.

2 department, Karlsson was under the supervision of Dr. Burley, a Florida licensed

physician. Shannon Rice was a Florida Registered Nurse employed by Lee Health.

The amended complaint further alleges that following an unsuccessful attempt

to flush and replace Doe’s catheter, Karlsson instructed Nurse Rice to keep pushing

fluids until the clog cleared. Nurse Rice returned to Doe with another nurse who

instructed Nurse Rice to replace the catheter for a second time. When the second

catheter was inserted, Doe’s bladder drained. Karlsson allegedly returned and

advised Doe that after speaking with the on-call urologist, he was going to perform

a vaginal exam. Doe refused to give consent, demanded a female physician, and

requested Karlsson to contact her gynecologist. Doe explained to Karlsson that her

gynecologist told her that nothing should be inserted into her vagina for several

weeks following her procedure. Doe also requested someone from the obstetrics

department to be brought in, which Karlsson allegedly would not allow. After

Karlsson and Nurse Rice both advised Doe that there was no female physician or

physician assistant working anywhere in the emergency department, Doe felt she

had no choice but to undergo the exam.

The amended complaint alleges that at all times during the exam, Nurse Rice

“was sitting in the corner of the room, looking at her cell phone and not monitoring

the situation and/or ensuring that protocols were followed.” The amended complaint

described in specific detail how Karlsson allegedly conducted the exam in an

inappropriate manner, including forcefully pushing Doe’s legs back open when she

3 instinctively closed her legs and moving his fingers by sliding them up as far as he

could and starting to seemingly “play” inside of her. The amended complaint further

alleged how Karlsson touched Doe inappropriately and that she again protested

against the exam and raised her voice telling him to stop. Karlsson allegedly

responded by telling Doe to calm down and let him do his job and that he would stop

when he was done. Upon concluding the exam, the amended complaint alleges that

Karlsson told Doe, “[y]ou’re fine. I don’t know why you were so unhappy by your

exam” and then stood up and walked out of the room without saying another word.

According to the amended complaint, “[Nurse] Rice did nothing when Jane Doe

protested and/or said to stop.”

On December 5, 2024, the Does served a notice of intent to initiate litigation

against Karlsson, along with an expert affidavit of Amanda M. Kane, M.D.

F.A.C.O.G., a board-certified gynecologist. The Does filed their initial complaint

on March 11, 2025, followed by their amended complaint on May 15, 2025,

asserting various claims against Karlsson, Cape Coral Emergency Physicians, Dr.

Burley, Nurse Rice, and Lee Health. As pertinent here, the Does asserted claims

against Dr. Burley for negligent supervision (Count XI), vicarious liability (Count

XII), and loss of consortium (Count XIII); against Nurse Rice for fraudulent

inducement (Count XIV) and loss of consortium (Count XV); and against Lee Health

for vicarious liability (Count XVI) and loss of consortium (Count XVII).

4 Dr. Burley, Nurse Rice, and Lee Health moved to dismiss the claims against

them for failure to comply with the presuit requirements for medical malpractice

actions in chapter 766. 2 The Does filed a response in opposition arguing (1) that the

case was a sexual assault case, not a medical malpractice case, and therefore was not

subject to chapter 766; and (2) despite the case stemming from a sexual assault, they

had complied with the presuit requirements by providing a presuit notice to

Karlsson.

The trial court declined to dismiss the claims at issue, finding they were

“claims for sexual assault and not claims for medical negligence. As such they are

not governed by [c]hapter 766, Florida Statutes.” However, the court found that if

this Court were to hold that the claims at issue sounded in medical negligence and

were governed by chapter 766, the notice served on Karlsson was insufficient as to

Dr. Burley because Dr. Kane’s affidavit failed to meet the “same specialty”

requirement in section 766.102(5)(a). The court also found that Dr. Kane had the

ability to render an opinion as to whether Nurse Rice’s performance fell below the

applicable standard of care, but she did not render such an opinion, and therefore the

notice served on Karlsson was insufficient as to Nurse Rice.3

2 Two separate motions to dismiss were filed, one by Cape Coral Emergency Physicians, Karlsson, and Dr. Burley; and a second by Nurse Rice and Lee Health. The motions raised other grounds for dismissal that are not at issue in this proceeding. 3 The trial court dismissed Count XIV against Nurse Rice and two claims against Karlsson on other grounds not at issue here.

5 Analysis

To be entitled to certiorari relief, a petitioner must establish “(1) a departure

from the essential requirements of the law, (2) resulting in material injury for the

remainder of the case (3) that cannot be remedied on postjudgment appeal.”

Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011); Begonja v. Wyndham Vacation

Resorts, Inc., 374 So. 3d 887, 890-91 (Fla. 6th DCA 2023). The latter two elements,

otherwise known as “irreparable harm,” are jurisdictional and must be analyzed

before determining whether there has been a departure from the essential

requirements of law. Williams, 62 So. 3d at 1132; Regala v. McDonald, 397 So. 3d

742, 746 (Fla. 6th DCA 2024).

Chapter 766, Florida Statutes, establishes “a complex presuit investigation

procedure that both the claimant and defendant must follow before a medical

negligence claim may be brought in court.” Kukral v. Mekras, 679 So. 2d 278, 280

(Fla. 1996). A plaintiff’s failure to comply with these requirements satisfies the

latter two elements of the certiorari analysis because “[t]he statutes requiring presuit

notice and screening cannot be meaningfully enforced postjudgment because the

purpose of the presuit screening is to avoid the filing of the lawsuit in the first

instance.” Shands Jacksonville Med. Ctr., Inc. v. Pusha, 254 So. 3d 1076, 1080 (Fla.

1st DCA 2018) (alteration in original) (quoting St. Joseph’s Hosp., Inc. v. Doe, 208

So. 3d 1200, 1201-02 (Fla. 2d DCA 2017)); see also Univ. of Fla. Bd. of Trs. v.

Carmody, 372 So. 3d 246, 253 (Fla. 2023) (“[A] district court can grant certiorari

6 review to verify that the plaintiff submitted the corroborating affidavit of an expert

witness.”); Williams, 62 So. 3d at 1137 (recognizing that a district court would have

been correct in granting certiorari review “to determine whether [the plaintiff]

complied with the procedural presuit requirements in terms of submitting a

corroborating affidavit”).

The question presented by the petitions in this case is whether the claims

against Dr. Burley, Nurse Rice, and Lee Health constitute medical malpractice

claims and thus are subject to the presuit requirements in chapter 766. We answer

that question in the affirmative and hold that the trial court’s ruling to the contrary

was a departure from the essential requirements of the law for which certiorari relief

is appropriate.

Section 766.106(1)(a) defines a claim for medical malpractice as “a claim,

arising out of the rendering of, or the failure to render, medical care or services.” As

the Florida Supreme Court has held, “for a claim to sound in medical malpractice,

the act from which the claim arises must be directly related to medical care or

services, which require the use of professional judgment or skill.” Nat’l Deaf Acad.,

LLC v. Townes, 242 So. 3d 303, 305 (Fla. 2018). “This inquiry involves determining

whether proving the claim requires the plaintiff to establish that the allegedly

negligent act ‘represented a breach of the prevailing professional standard of care,’

as testified to by a qualified medical expert.” Id. at 311-12; see also Joseph v. Univ.

Behav. LLC, 71 So. 3d 913, 917 (Fla. 5th DCA 2011) (“The fact that a wrongful act

7 occurs in a medical setting does not necessarily mean that it involves medical

malpractice. The wrongful act must be directly related to the improper application

of medical services and the use of professional judgment or skill.” (citations

omitted)); Quintanilla v. Coral Gables Hosp., Inc., 941 So. 2d 468, 469 (Fla. 3d

DCA 2006) (“To be a [medical] malpractice claim, a wrongful act must be directly

related to the improper application of medical services and the use of professional

judgment or skill.”).

In the case at hand, the misconduct is alleged to have occurred in the

emergency department of a hospital during the course of what Karlsson represented

to be a legitimate and necessary medical examination after consulting with the on-

call urologist. The amended complaint alleges in specific detail how Karlsson

allegedly performed the examination in an inappropriate manner, refused Doe’s

requests to consult her gynecologist and to locate a female provider, and ignored

Doe’s repeated pleas to stop. Dr. Kane’s affidavit, which was attached to the notice

of intent served on Karlsson, further details all the ways in which Karlsson allegedly

deviated from the applicable standard of care in conducting the examination and in

his treatment of Doe when she came to the emergency room. 4 Based on these

allegations, it is clear that Karlsson’s alleged misconduct arose from the rendering

4 The fact that the Does served a notice of intent with a corroborating affidavit on Karlsson at least suggests they also believed their allegations against Karlsson fell within the scope of chapter 766.

8 of medical care or services and thus falls within the statutory definition of a claim

for medical malpractice.

The authorities cited by the Does in defense of the trial court’s ruling are

distinguishable in that they do not involve allegations of misconduct by a provider

under the guise of a legitimate medical exam or procedure but rather involve

misconduct that was completely separate from the provision of medical services. St.

Joseph’s Hosp., 208 So. 3d at 1201-02 (plaintiff alleged she was sexually assaulted

while in hospital’s mental health facility by employee who was able to enter and exit

her room several times at night without supervision, and “[n]othing about the[]

allegations . . . involved medical care or services”); Burke v. Snyder, 899 So. 2d 336

(Fla. 4th DCA 2005) (plaintiff receiving treatment for head and jaw pain alleged she

was violently assaulted by physician who suddenly, unexpectedly, and forcefully

shoved his hand into her genitals); Lindheimer v. St. Paul Fire & Marine Ins. Co.,

643 So. 2d 636 (Fla. 3d DCA 1994) (plaintiff receiving periodontal treatment alleged

she was sexually molested by dentist after she was given anesthesia); Buchanan v.

Lieberman, 526 So. 2d 969, 972-73 (Fla. 5th DCA 1988) (holding that alleged sexual

battery did not constitute medical malpractice where “the only connection between

the battery and the doctor-patient relationship is the fact that the battery occurred in

the doctor’s office” and there were no allegations that the doctor engaged in such

conduct “under the guise of medical diagnosis, treatment[,] or care”).

9 The Does argue that even if Karlsson’s alleged misconduct constitutes

medical malpractice, that would not convert their claims alleging derivative or

vicarious lability against Dr. Burley, Nurse Rice, and Lee Health into malpractice

claims. We disagree. A claim alleging derivative or vicarious liability based on the

improper performance of a medical examination by a physician assistant is still a

claim “arising out of the rendering of . . . medical care or services.” § 766.106(1)(a);

see also Weinstock v. Groth, 629 So. 2d 835, 838 (Fla. 1993) (“[T]he proper test for

determining whether a defendant is entitled to notice under section 766.106(2) is

whether the defendant is directly or vicariously liable under the medical negligence

standard of care set forth in section 766.102(1).”). Nothing in the statutory definition

requires that a “claim for medical malpractice” must arise out of the rendering of

medical or services performed by that defendant. See Lawnwood Med. Ctr., Inc. v.

Seeger, 990 So. 2d 503, 512 (Fla. 2008) (noting that courts “are not at liberty to add

words to the statute that were not placed there by the Legislature.” (quoting State v.

J.M., 824 So. 2d 105, 111 (Fla. 2002))).

Moreover, a review of the allegations against Dr. Burley, Nurse Rice, and Lee

Health reflects that each of those claims hinges on a deviation by Karlsson from the

applicable standard of care in his treatment of Doe. The Does allege that Dr. Burley

failed to adequately supervise, train, or monitor Karlsson in providing treatment that

met the medical standards of care and that he knew or should have known that

Karlsson was unfit, incompetent, or inadequately trained to provide the necessary

10 medical care. The Does further allege that Dr. Burley is vicariously liable under

section 458.347, Florida Statutes (2022), which allows a physician assistant to

perform medical services delegated by a supervising physician and provides that a

supervising physician “is liable for any acts or omissions of the physician assistant

acting under the physician’s supervision and control.” § 458.347(14). As to Nurse

Rice and Lee Health, they allege that Nurse Rice knowingly or recklessly made false

statements to Doe concerning material facts about her necessary medical treatment,

that Doe justifiably relied on those statements in initially relenting to the vaginal

exam, and that Lee Health, as Nurse Rice’s employer, was vicariously liable for

Nurse Rice’s acts or omissions.5

Accordingly, because each of the claims at issue arose directly from

Karlsson’s rendering of medical services to Doe, they are medical malpractice

claims which required compliance with the presuit notice requirements in chapter

766. As the trial court previously found, the notice of intent the Does served on

Karlsson was insufficient as to Dr. Burley because Dr. Kane’s corroborating

affidavit did not meet the “same specialty” requirement set forth in section

5 The analysis is the same for the loss-of-consortium claims, which necessarily flow from the claims alleging injury to Jane Doe. See Faulkner v. Allstate Ins. Co., 367 So. 2d 214, 217 (Fla. 1979) (“[A spouse’s] claim for loss of consortium is derivative in nature and wholly dependent on [the injured spouse’s] ability to recover.”); Gates v. Foley, 247 So. 2d 40, 45 (Fla. 1971) (explaining that a claim for loss of consortium “is a derivative right and [a spouse] may recover only if [the injured spouse] has a cause of action against the same defendant”).

11 766.102(5)(a). Additionally, the Does failed to provide the notice of intent or the

corroborating affidavit to Nurse Rice or Lee Health, and there was no mention of

Nurse Rice, either by name or job description, in the affidavit. Therefore, the claims

at issue should have been dismissed. We grant the petitions and quash the denial of

Petitioners’ motions to dismiss as it pertains to the claims against Dr. Burley, Nurse

Rice, and Lee Health.

PETITIONS GRANTED; ORDER QUASHED.

BROWNLEE and PRATT, JJ., concur.

Jamie Billotte Moses, of MMPO Defense – Florida, Orlando, for Petitioners, Cape Coral Emergency Physicians, LLC, Marten Karlsson, and Keith Burley.

Michael R. D’Lugo, of Wicker Smith O’Hara McCoy & Ford, P.A., Orlando, for Petitioners, Lee Health System, Inc., and Shannon Rice.

Megan E. Shaw and Joseph E. Parrish, of Parrish & Goodman, PLLC, Fort Myers, for Respondents, Jane Doe and John Doe.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED