Leon Medical Centers, LLC v. Elsa Falcon, Etc.

• Court: District Court of Appeal of Florida
• Decided: February 12, 2025
• Docket: 3D2024-1656
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 12, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-1656 Lower Tribunal No. 23-1274-CA-01 ________________

Leon Medical Centers, LLC, Petitioner,

vs.

Elsa Falcon, as Personal Representative of the Estate of Miguel C. Falcon, Hilario Martinez, M.D., Lisyannet Talavera Diaz, R.N., Gables Radiology Associates, P.A., Healthspring of Florida, Inc., d/b/a Leon Medical Center Health Plans, Leon Health, Inc., Respondents.

On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge.

Easley Appellate Practice PLLC, and Dorothy F. Easley; Wicker Smith O’Hara McCoy & Ford, P.A., and Frederick E. Hasty, III, for petitioner.

Panter, Panter & Sampedro, P.A., Joshua L. Wintle, and David Sampedro, for respondent, Elsa Falcon. Before LOBREE, BOKOR and GOODEN, JJ.

GOODEN, J.

Petitioner Leon Medical Centers, LLC filed a petition for writ of

certiorari seeking to quash the order denying its motion to dismiss for failure

to follow the pre-suit requirements of the Medical Malpractice Act. Because

the petition requires us to reweigh the evidence, we dismiss the petition.

I.

On March 21, 2022, Miguel Falcon underwent a medical procedure at

Gables Radiology Associates, P.A. in Doral, Florida. Gables Radiology is a

freestanding radiology facility that conducts interventional radiology. Dr.

Hilario Martinez, a Gables Radiology employee, performed the procedure,

while Lisyannet Talavera Diaz, RN, another Gables Radiology employee,

administered conscious IV sedation. During the procedure, Mr. Falcon had

a medical emergency and had to be transported to Jackson Memorial West.

He was admitted to the ICU. Tragically, Mr. Falcon passed away on August

7, 2022.

At the time of the procedure, Mr. Falcon was a Medicare Advantage

member of Leon Health, Inc., a health maintenance organization (“HMO”).1

1 Mr. Falcon was previously a member of an HMO health plan called Healthspring of Florida, Inc. d/b/a Leon Medical Center Health Plans.

2 HMO health plans direct their members to use in-network providers for their

care. Gables Radiology is an in-network provider. One of the plan’s benefits

includes use of a courtesy bus that Petitioner Leon Medical Centers, LLC

operates. Records showed that Mr. Falcon used the courtesy bus to travel

to various in-network providers, including on the day of the incident.

Petitioner Leon Medical Centers, LLC also operates a clinic that is

unconnected to this medical incident.

On July 14, 2022, Falcon and his wife, Elsa, served Leon Medical

Centers, LLC with a notice of intent pursuant to section 766.106, Florida

Statutes. The notice asserted a claim for direct negligence. It also vaguely

asserted: “Leon Medical Centers is responsible for the actions of the

healthcare providers identified in the attached affidavit because of their legal

relationship to Leon Medical Centers.” The attached affidavit was from Dr.

John Schweiger. It stated there were reasonable grounds to support a claim

of medical negligence against Nurse Diaz, Dr. Martinez, and Gables

Radiology. However, it did not mention or even reference Leon Medical

Centers, LLC, and did not otherwise elaborate on what the “legal

relationship” was.

The notice of intent also requested a wide array of pre-suit discovery.

Leon Medical Centers, LLC responded with “none.” It maintained that Mr.

3 Falcon was never admitted to or billed by Leon Medical Centers, LLC, the

incident did not occur at its location or facility, and none of its employees or

agents were involved. It also explained that there were no employment

agreements between Nurse Diaz, Dr. Martinez, and Leon Medical Centers,

LLC, and there was no contract or legal relationship between it and Gables

Radiology. To prevent any confusion, it explained that any contract would

have been between Healthspring of Florida, Inc. d/b/a Leon Medical Centers

Health Plans and Gables Radiology, and it was not affiliated with either

entity.

Leon Medical Centers, LLC produced affidavits from Dr. Lewis Guzzi,

stating that there was a lack of reasonable grounds to support a claim of

medical negligence against Petitioner, and its general counsel, Carlos F.

Junco, Esq., confirming that Petitioner did not contract with or employ Gables

Radiology, Dr. Martinez, or Nurse Diaz.

As a result, Leon Medical Centers, LLC requested the Falcons to

withdraw the notice of intent. The Falcons did so in October 2022. No new

notice of intent was sent to Leon Medical Centers, LLC at this time.

In January 2023, Elsa Falcon, as personal representative of the Estate,

filed suit against Dr. Martinez, Nurse Diaz, and Gables Radiology for medical

4 negligence. Falcon continued her investigation into other potential

defendants.

In August 2023, Falcon wrote to Leon Medical Centers, LLC’s third-

party administrator stating that further investigation suggested that Leon

Medical Centers, LLC may be liable under theories of actual and apparent

agency. However, Falcon did not elaborate and did not provide evidence of

relationship. Instead, Falcon inquired whether she needed to re-serve the

notice of intent or if she could amend her complaint. Falcon asserts that her

lawyer spoke with the third-party administrator, and he confirmed that

another notice of intent was not necessary and no further pre-suit

investigation was contemplated.

In October 2023, Falcon amended her complaint to add Leon Medical

Centers, LLC, and others, as defendants. The amended complaint alleges

that the courtesy bus was owned by Leon Medical Centers, LLC, it

transported the decedent to Gables Radiology, and that Leon Medical

Centers, LLC held out Gables Radiology, Dr. Martinez, and Nurse Diaz as

its agents. No active negligence counts were alleged against it. The

amended complaint also grouped Leon Medical Centers, LLC, Healthspring

of Florida, Inc. d/b/a Leon Medical Centers Health Plans, and Leon Health,

Inc. as one entity, alleging they operate as “Leon.”

5 Leon Medical Center, LLC moved to dismiss alleging that Falcon failed

to comply with section 766.106, Florida Statutes, and failed to plead a cause

of action for vicarious liability. In a short response, Falcon asserted it

previously served a notice of intent and the complaint states a cause of

action.

In an apparent attempt to cure any deficiency, Falcon served Leon

Medical Centers, LLC with a second notice of intent—one that was virtually

identical to the first. Leon Medical Centers, LLC denied the claim a second

time. It reiterated that there is no contractual relationship between the parties

and “that Leon Medical Centers had nothing to do with the care and

treatment provided to Mr. Falcon.” It maintained that the notice was deficient

because “there is no good faith belief, that there are reasonable grounds to

believe that Leon Medical Centers fell below the standard of care, and as a

result caused or created an injury” to Mr. Falcon, no new affidavit was

provided, and there “is no description, fact, circumstance, basis or

justification for bringing this lawsuit against Leon Medical Centers.”

Falcon responded, conceding there were no allegations of direct

medical negligence. It recognized the affidavit of the general counsel and its

contents, but claimed she was basing her claims on “the existence of a legal

relationship.” Nevertheless, Falcon never identified that relationship.

6 Falcon then produced an affidavit from Dr. David Prologo. Like the

prior affidavit, this affidavit also did not address any actions of Leon Medical

Centers, LLC or contain any information as to the “legal relationship” that

purportedly would make it liable.

Leon Medical Centers, LLC again denied the claim, reiterating that

there was no “legal relationship” between the parties. It explained that

Gables Radiology was a network health care provider of Leon Health, Inc.,

the health plan which Mr. Falcon was a member at the time of the alleged

incident. There was no connection to Leon Medical Centers, LLC.

Falcon subsequently amended her short response to the motion to

dismiss. She claimed her counsel conducted a reasonable pre-suit

investigation into the vicarious liability of Leon Medical Centers, LLC and

submitted his affidavit. However, his affidavit did not explain what that “legal

relationship” was; instead, it asserted he did not have to.

The trial court conducted an evidentiary hearing. Leon Medical

Centers, LLC maintained that Falcon did not perform a reasonable

investigation as to every defendant and there was no good faith basis for it

being liable. For the first time, Falcon sought to explain the “legal

relationship.” She pointed to an advertisement that said, “There is only one

7 Leon,” and an alleged statement from Mr. Falcon’s primary care physician

that he needed to see a “Leon” physician.

The trial court denied the motion finding “the investigation, while in

theory could have been better and dug deeper, was a reasonable

investigation.” It noted that the issue of apparent agency would be flushed

out at summary judgment stage.

Leon Medical Centers, LLC moved for reconsideration arguing that

Falcon’s theories of agency were unsupported by the evidence and the law.

The trial court denied the motion. This petition followed.

II.

To obtain a writ of certiorari, a party must demonstrate a departure

from the essential requirements of the law that results in material injury that

cannot be corrected on plenary appeal. Reeves v. Fleetwood Homes of

Florida, Inc., 889 So. 2d 812, 822 (Fla. 2004). While certiorari review is

generally not available for orders denying motions to dismiss, Florida courts

have recognized an exception in medical malpractice cases. This is

“premised on the purpose of the Medical Malpractice [ ] Act—to avoid

meritless claims and to encourage settlement for meritorious claims.”

Williams v. Oken, 62 So. 3d 1129, 1133 (Fla. 2011).

8 Nevertheless, certiorari review is only available “to ensure that the

procedural aspects of the presuit requirements are met.” Id. at 1137. “At a

general level, such procedural aspects include whether a plaintiff—before

the filing of the medical malpractice lawsuit—gave the defendant ‘advance

notice’ and provided an ‘opportunity [for the defendant] to examine [the]

claim.’” Univ. of Florida Bd. of Trustees v. Carmody, 372 So. 3d 246, 253

(Fla. 2023) (citation omitted). See also Abbey v. Patrick, 16 So. 3d 1051,

1054 (Fla. 1st DCA 2009) (“Certiorari may be an appropriate remedy if the

error is one that resulted in the deprivation of the right to the process itself.”).

“[C]ertiorari does not lie for appellate courts to reweigh the evidence

presented concerning compliance with the presuit statutory requirements.”

St. Mary’s Hosp. v. Bell, 785 So. 2d 1261, 1262 (Fla. 4th DCA 2001).

For instance, in St. Mary’s Hospital v. Bell, the hospital moved to

dismiss arguing that the personal representative’s counsel failed to make a

reasonable investigation to determine whether there was a good faith belief

that grounds existed against it. Id. at 1261–62. The personal representative

did not produce any hospital records that showed the decedent had treated

at the facility. Id. at 1261. The hospital searched its records and did not find

any document showing that the decedent had been treated at its facility. Id.

9 At the evidentiary hearing, the witnesses all focused on the lack of records.

Id. at 1262. The trial court denied the motion to dismiss. Id.

The hospital sought certiorari review focusing on the lack of a good

faith investigation. Id. The Fourth District dismissed the petition. Id. It

explained: “[C]ertiorari is available to review whether a trial judge followed

chapter 766 and whether a plaintiff complied with presuit notice and

investigation requirements; certiorari is not so broad as to encompass review

of the evidence regarding the sufficiency of counsel’s presuit investigation.”

Id. The Florida Supreme Court approved the Fourth District’s decision in

Williams v. Oken. Williams, 62 So. 3d at 1135 (“The Fourth District’s decision

in St. Mary’s, which serves as the basis for this Court’s discretionary review,

got it right.”).

In its petition, Leon Medical Centers, LLC attempts to frame this issue

as procedural. It asserts that Falcon failed to comply with presuit

requirements. Specifically, it claimed no “reasonable investigation gave rise

to a good faith belief that grounds exist for an action against” it. § 766.104(1),

Fla. Stat. But when we examine what occurred, we would have to reweigh

the evidence presented during the presuit process and at the evidentiary

hearing. Williams, 62 So. 3d at 1135; St. Mary’s Hosp., 785 So. 2d at 1262.

10 This does not fall within the confines of certiorari. While we are

sympathetic that Leon Medical Centers, LLC is being forced to litigate an

action against it in light of no evidence demonstrating its liability, we are

constrained by the limits of writs of certiorari and binding judicial precedent.

Petition dismissed.