Fullerton v. FLORIDA MEDICAL ASS'N, INC.

973 So. 2d 1144, 2006 WL 1888545
CourtDistrict Court of Appeal of Florida
DecidedJuly 11, 2006
Docket1D05-0185, 1D05-3632
StatusPublished

This text of 973 So. 2d 1144 (Fullerton v. FLORIDA MEDICAL ASS'N, INC.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fullerton v. FLORIDA MEDICAL ASS'N, INC., 973 So. 2d 1144, 2006 WL 1888545 (Fla. Ct. App. 2006).

Opinion

973 So.2d 1144 (2006)

Dr. John FULLERTON, Appellant,
v.
The FLORIDA MEDICAL ASSOCIATION, INC., Dr. Jonathan B. Warach, Dr. Pravinchandra Zala, and Dr. Joseph O. Krebs, Appellees.

Nos. 1D05-0185, 1D05-3632.

District Court of Appeal of Florida, First District.

July 11, 2006.

*1145 James F. McKenzie of McKenzie, Taylor & Zaraur, P.A., Pensacola, and John Vail and Julie Schroeder of the Center for Constitutional *1146 Litigation, P.C., Washington, D.C., for Appellant.

Angela C. Flowers of Kubicki Draper, Miami, for Appellee The Florida Medical Association.

Robert V. Williams, and John A. Schifino of Williams, Schifino, Mangione & Steady, P.A., Tampa, for Appellees Dr. Jonathan B. Warach, Dr. Pravinchandra Zala, and Dr. Joseph O. Krebs.

Jon N. Ekdahl, Leonard A. Nelson, and Steve I. Ro of the American Medical Association, Chicago, IL; John D. Buchanan, Jr., of Henry, Buchanan, Hudson, Suber & Carter, P.A., Tallahassee, for Amicus Curiae American Medical Association.

Rebecca O'Dell Townsend of The Solomon Tropp Law Group, P.A., Tampa, for Amicus Curiae Washington Legal Foundation.

ERVIN, J.

In these consolidated appeals, Dr. John Fullerton, a medical practitioner and an expert witness in a medical-malpractice action, appeals separate final judgments entered on prior orders granting the appellees' motions to dismiss Dr. Fullerton's amended complaints alleging counts in defamation, tortious interference with an advantageous business relationship, conspiracy through abuse of economic power, witness intimidation brought against all of the defendant/appellees, and a count against defendant/appellee Florida Medical Association (FMA), a professional peer-review association, for violation of Florida's RICO Act. Because we decide that the lower court erroneously concluded that section 766.101, Florida Statutes (2003), and the federal Health Care Quality Improvement Act, 42 U.S.C. §§ 11101-11152 (HCQIA), immunize the FMA and the individual defendant physicians from all liability, we reverse the final judgments of dismissal and remand the cases for further consistent proceedings.

Following Dr. Fullerton's testimony as an expert witness in a medical-malpractice action brought against doctors Jonathan B. Warach, Pravinchandra Zala, and Joseph 0. Krebs (individual defendants and appellees in case no. 1D05-0185), which resulted in a judgment exonerating them from liability, they forwarded a letter to the FMA complaining of Dr. Fullerton's testimony, stating, among other things, that his opinion testimony fell below reasonable professional standards, that it was made "for the sole purpose of propagating a frivolous lawsuit for financial gain," and that he specifically "presented false testimony and false theories about stroke in the hope to prove negligent medical care in an 80-year-old diabetic with previous strokes who suffered a stroke despite appropriate care." Appellees concluded their letter with a request to the FMA to issue an opinion addressing whether Fullerton's testimony "fall[s] below standards," and, if so, to report its findings to the Board of Medicine for appropriate disciplinary action in order "to prevent the Medical profession from being terrorized by similar experts."

Following the publication of the letter, Dr. Fullerton filed his initial complaint with a copy of the letter attached, naming both "the FMA and the individual physicians as defendants. He alleged that while he is licensed to practice medicine in California and Florida, he is not a member of the FMA; that he resides in California where he primarily practices his profession. He generally alleged that the statements in the letter were false and were submitted for processing by the FMA's Expert Witness Committee (EWC) of FMA's Council on Ethical and Judicial Affairs (CEJA), which was organized for the purpose "of intimidating, hindering, and deterring persons, including plaintiff Fullerton, from appearing as expert witnesses on behalf of plaintiff in cases involving *1147 medical malpractice," thereby depriving injured plaintiffs of the ability to pursue medical-malpractice lawsuits. He continued that because of the actions of FMA and the defendant doctors, who acted in concert to inhibit expert testimony in medical-malpractice cases, he had suffered damages and would suffer irreparable harm to his reputation and to his capacity to earn income in the future if the defendant FMA's CEJA and EWC programs were permitted to continue their operations.

All of the defendants filed motions to dismiss, raising as grounds that the claims were barred by the Florida and federal immunity statutes. At the hearing conducted on the motions to dismiss, plaintiff's counsel argued that although the FMA is statutorily designated a professional-review committee, the immunity statutes were not designed to apply to expert-witness testimony; rather, they were enacted for the purpose of addressing the quality of health care provided by physicians in the treatment of their patients.

At the conclusion of the hearing, the court ruled that the statutory immunity privilege provided in both section 766.101 and the HCQIA barred the plaintiff's claims in the absence of allegations of intentional fraud. As a result, the court granted the motions to dismiss without prejudice for Dr. Fullerton to amend his complaint in an effort to state a cause of action for intentional fraud with the specificity required by Florida Rule of Civil Procedure 1.120(b).

Following plaintiff's election not to amend the complaint brought against the individual physicians, the trial court entered final judgment of dismissal with prejudice, and the appeal from same is designated as case number 1D05-0185. Plaintiff later filed an amended complaint against the defendant FMA, asserting essentially the same allegations and the same counts, resulting in the trial court's dismissal with prejudice of all counts except defamation, which the court dismissed without prejudice for him to amend by specifically alleging extrinsic evidence of intentional fraud. The court also dismissed the amended defamation complaint for the same reasons given for the dismissal of the prior complaints, and the appeal therefrom is styled case number 1D05-3632.

This court's review standard of a trial court's grant of a motion to dismiss is de nova. See Shands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 899 So.2d 1222, 1227 (Fla. 1st DCA 2005). Moreover, because the lower court's dismissal orders depended primarily on its interpretation of the pertinent immunity statutes, our review standard of its legal construction is de novo. We find nothing in Florida's medical peer-review statutes reasonably supporting an interpretation that a peer-review committee is shielded from liability for an act taken by the committee on a claim that a physician's testimony in a medical-malpractice action fell below acceptable professional standards. The peer-review immunity statute, section 766.101(3)(a), provides in part:

There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a duly appointed medical review committee, or any health care provider furnishing any information . . . for any act or proceeding undertaken or per formed within the scope of the functions of any such committee if the committee member or health care provider acts without intentional fraud.

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973 So. 2d 1144, 2006 WL 1888545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fullerton-v-florida-medical-assn-inc-fladistctapp-2006.