Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ALAN B. HALSEY, M.D.; PARTNERS IN ALLERGY AND ASTHMA CARE, P.A.; and PARTNERS IN ALLERGY AND ASTHMA CARE, LLC, Petitioners, v. JUDY L. HOFFMAN, Respondent. No. 2D22-3399 May 12, 2023 Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; James S. Moody, III, Judge. Jason M. Azzarone, Piper A. Hurley, and Louis J. La Cava of La Cava Jacobson & Goodis, P.A., Tampa, for Petitioners. Judy L. Hoffman of Legal Advocates at Winslow Hoffman Law, PLLC, Plant City, for Respondent. SILBERMAN, Judge. Alan B. Halsey, M.D.; Partners in Allergy and Asthma Care, P.A.; and Partners in Allergy and Asthma Care, LLC (collectively "Halsey"), petition this court for a writ of certiorari quashing the trial court's order that denies Halsey's motion to dismiss Judy L. Hoffman's amended complaint with prejudice.1 Because Hoffman's claims are subject to medical negligence presuit requirements, the trial court departed from the essential requirements of the law by denying Halsey's motion. As a result, we grant Halsey's petition for writ of certiorari and quash the trial court's order. Hoffman sued Halsey for defamation per se, slander per se, and negligent and intentional infliction of emotional distress. Hoffman alleged that Halsey, an asthma, allergy, and immunology specialist, falsely and maliciously "imputed" to her and "labeled" her with factitious disorder. Referring to a medical diagnosis code and information from the Mayo Clinic, Hoffman described factitious disorder as a serious mental or psychiatric disorder that is "characterized by physical or psychological symptoms that are intentionally produced"; a person suffering from this condition "deceives others by appearing sick, by purposely getting sick, or by self-injury." Hoffman alleged that Halsey was not qualified to determine that she suffers from factitious disorder because he is not a specialist in psychiatry. She asserted that Halsey "knew or should have known" that his labeling of her with this disease was false because "he had not performed any testing of any sort" on her since 2013. She noted that while she had given consent to Halsey to share "factual" information, she did not consent to his publishing "false and defamatory statements" to others. Hoffman alleged that she suffered damages because Halsey shared this "defamatory label" of factitious disorder with her primary care physician and included that information in her medical records, which were viewed by her doctors. 1 Halsey's motion also raised other issues not relevant to our decision. 2 Halsey filed a motion to dismiss Hoffman's amended complaint and argued that the claims arise out of Halsey's rendering of medical care or services, are based on an alleged incorrect or improper diagnosis of factitious disorder, and constitute claims of medical negligence. He argued that the case should be dismissed because Hoffman did not comply with the presuit requirements contained in section 766.106, Florida Statutes (2020). Following a hearing, the trial court denied the motion. The court stated that Hoffman was entitled to bring the case as a defamation action rather than one for medical malpractice. Halsey filed his petition for writ of certiorari with this court, challenging the trial court's denial of his motion to dismiss. A court may grant certiorari relief from the denial of a motion to dismiss only if the petitioner establishes "(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 corrected on postjudgment appeal." Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004)). "Certiorari jurisdiction may lie when chapter 766 presuit requirements are at issue." Corbo v. Garcia, 949 So. 2d 366, 368 (Fla. 2d DCA 2007) (quoting Fassy v. Crowley, 884 So. 2d 359, 363 (Fla. 2d DCA 2004)). "A nonfinal order that erroneously allows a plaintiff to proceed with an action without complying with the presuit requirements of chapter 766 would result in material injury to the defendants that could not be corrected on appeal." Id. (citing Fassy, 884 So. 2d at 364). Here, the jurisdictional basis for certiorari has been met. See Rell v. McCulla, 101 So. 3d 878, 880-81 (Fla. 2d DCA 2012). 3 Whether a complaint alleges a claim for medical negligence is reviewed de novo. Nat'l Deaf Acad., LLC v. Townes, 242 So. 3d 303, 308 (Fla. 2018). Negligence claims are subject to the presuit requirements set forth in chapter 766 if "[t]he wrongful act [is] directly related to the improper application of medical services[] and the use of professional judgment or skill." Corbo, 949 So. 2d at 368 (alterations in original) (quoting Lynn v. Mount Sinai Med. Ctr., Inc., 692 So. 2d 1002, 1003 (Fla. 3d DCA 1997)); see also Nat'l Deaf Acad., 242 So. 3d at 311 ("[F]or 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."). "The key inquiry under the statute is whether the action 'aris[es] out of any medical, dental, or surgical diagnosis, treatment, or care.' " Fassy, 884 So. 2d at 364 (alteration in original) (quoting J.B. v. Sacred Heart Hosp. of Pensacola, 635 So. 2d 945, 947 (Fla. 1994)). In her amended complaint, Hoffman alleges several causes of action, each of which arises from Halsey's conclusion that Hoffman suffers from factitious disorder. The crux of Hoffman's claims is that Halsey was not qualified to render that diagnosis, he did not perform tests that would support such a diagnosis, he wrongfully labeled her as having that disorder, and he wrongfully shared his diagnosis with other physicians orally or in her medical records. Despite her effort to characterize the claims as something other than medical negligence, the claims are based on Halsey’s diagnosis or misdiagnosis of factitious disorder while he was providing medical care or services to Hoffman; his conclusion as to Hoffman’s condition required the use of professional judgment or skill in reaching a diagnosis. See Nat'l Deaf Acad., 242 So. 3d at 311; Fassy, 884 So. 2d at 364. 4 Although not cited by the parties, we located one case that discusses whether a claim for defamation had to meet the presuit screening requirements of chapter 766. That case, Champion v. Cox, 689 So. 2d 365 (Fla. 1st DCA 1997), is materially distinguishable from the circumstances of the present case. There, Champion sued her doctor for defamation claiming that the doctor falsely told Champion's work supervisor that Champion was "suffering from an incapacitating physical and mental disease and [that she] was going to die." Id. at 365 (alteration in original). Champion alleged that she was fired from her job and suffered a loss of reputation because of the false statements. Id. The doctor filed a motion to dismiss Champion's defamation claim arguing that "the alleged defamatory statements were made in the course of a physician-patient relationship" and that Champion failed to comply with the presuit requirements of section 766.106. Id. at 365-66. The doctor asserted that "he had diagnosed Champion with senile dementia and that he had called her employer, not to impart medical information, but only to locate a family member." Id. at 366 (emphasis added). The trial court dismissed Champion's complaint with prejudice. Id. The First District reversed, concluding that the presuit notice and investigation procedures did not apply because "[a]lthough the subject of the alleged defamation relates generally to a medical condition, it is not a claim arising out of the care or treatment of that condition." Id. The court reasoned that the claim was "unrelated to the performance of the health care provider" and was "not within the special province of medical experts." Id. The circumstances here are significantly different from those in Champion. Here, Halsey shared his conclusion as to Hoffman's medical condition with other physicians who were providing medical care to her. 5 In Champion, the doctor called the employer to "to locate a family member." Id. Nothing in the Champion opinion suggests that the doctor's disclosure of the patient's purported condition to the employer, as opposed to other health care providers, was necessary or appropriate for her medical care. There are no allegations here that Halsey shared his opinion as to Hoffman's condition with anyone other than those involved in providing medical care to Hoffman, and his actions arose from the medical diagnosis, treatment, or care that he purportedly provided to Hoffman. See Fassy, 884 So. 2d at 364; Champion, 689 So. 2d at 366. Additionally, based on Hoffman's allegations, she will likely have to call at least one medical expert to testify that she does not have factitious disorder, that Halsey was not qualified to diagnose her with that disorder, and that he deviated from the appropriate standard of care in labeling her as having that disorder and in sharing that information with her other doctors. These considerations are significant to our determination that this case is one for medical negligence and not ordinary negligence. See Nat'l Deaf Acad., 242 So. 3d at 311-12 (reiterating that the act from which a medical malpractice claim arises must be directly related to medical care or services, requiring the use of professional judgment or skill and necessitating that the plaintiff establish a breach of the prevailing standard of care based on a qualified medical expert's testimony); see also J.B., 635 So. 2d at 947 ("The key inquiry under the statute is whether the action 'aris[es] out of any medical, dental, or surgical diagnosis, treatment, or care.' " (alteration in original)). Because Hoffman's claims are subject to medical negligence presuit requirements, the trial court departed from the essential requirements of 6 the law by denying Halsey's motion to dismiss. Therefore, we grant Halsey's petition for writ of certiorari and quash the trial court's order. Petition granted; order quashed. VILLANTI and SLEET, JJ., Concur. Opinion subject to revision prior to official publication. 7