I CALL THE LAST CASE O N T HE CALENDAR THIS M ORNING WHICH IS SOUTH ERN BAP TI ST H OS PITA L VERSUS J EF FR EY W ELKE R . THE PARTIES A RE R EA DY . LET'S J UST WAIT U NTIL W E - - P RIOR COUNSEL. MR. JAY?

MAY IT PLEASE THE COURT , I'M H ARVEY JAY ON B EHAL F O F SOUTHERN BAPTIST HOSPITAL OF FLORIDA. THIS S AY I NV OLVES THE DISMISSAL OF A T HREE -C OUNT COMPLAINT THAT AROSE FRO M THE ACTIONS OF A MEN TA L HEALTH COUNSELOR W HO W AS A FULL-TIME EMPLO YE E O F BAPTI ST MEDICAL CENTER. THAT STANDS UNDISPUTE D IN THE RECORD.

NOW, WE'RE H ER E O N T HE CERTIFIED QUESTION BUT I T SEEMS THAT A LOT O F W HAT W AS THE B RIEF I S FOC US IN G O N I S THE I SS UE A BO UT WHE TH ER THE P RESUIT NOTICE REQUI RE ME NT S HAD TO BE COMPLIED W ITH. I WANT TO MAKE SUR E THA T , YOU KNOW, BECAU SE W E H AVEN 'T ACCEPTED JURISDICTION ON THAT BASIS A LT HO UGH T HERE WAS CONFLICT NOT ED W IT H GOLDMAN.ARE YOU GOING TO FOCUS ON BOTH OF THE ISSUES? ARE YOU GOING T O STA RT WITH THE IMPACT RULE I SSUE THAT WE ARE HERE O N O R A RE Y OU GOING TO DO IT AS Y OU A RGUE D IN YOUR BRIEF?

WHATEVER THE P RE FE RE NC E OF THE COURT IS. I'M PREPARED TO A RGUE B OTH. BOTH ISSUES A RE VER Y IMPORTANT TO THE HOSPITAL.

IF YOU COULD ADD RESS FIRST THE I SS UE T HA T W E H AV E ACCEPTED JUR ISDICTION O N S O T HAT THEN WE ARE GOI NG T O HAVE TO DECIDE A FT ER T HAT WHAT OTHER ISSUES , A ND O F COURSE THAT DOESN'T PRE CL UDE YOU FROM ARGUING THAT , B UT IF YOU COULD HELP US FIRST OF ALL WITH T HE I SSUE THA T WE ARE ACTUALL Y HER E O N , THE P RIORITY ISSUE I'LL CAL L I T.

SO WE DON 'T R UN OUT O F TIME, I WOULD LIKE FOR B OTH COUNSEL TO ADDRESS THE C AUSE OF ACTION THAT WE ARE DEALING WITH IN C OUNT 3 .

YES, SIR . AND I WILL BE H AP PY T O ADDRESS T HE IMPACT RULE AND THE CAUSE OF A CTION. BACK TO THE COM PL AINT , INITIALLY INC LU DED A V IOLATION A ND L ES S VIO LA TION O F 3 92 01 W HI CH WAS D IS MI SSED WITH PREJUDICE BY THE T RIAL COURT ON APPEAL. COUNT 2 WAS A L IABL E C OUNT THAT WAS DISMISSED BY THE TRIAL COURT BY C ONCESS IO N O F COUNSEL WAS AGREED T O AS BEI NG DISMISSED AND COUNT THREE IS A FAI LU RE T O U SE REASONABLE IK KA CARE A ND W E WOULD SUBMIT COMING FROM THE ACTIONS, HEALTH CARE A CT IO NS OF THIS MENTAL HEA LT H COUNSELOR WHO WAS A FULL-TIME EMPLOYEE OF T HE HOSPITAL.

THIS IS WHERE THE IMPACT RULE COMES IN ; IS T HA T CORRECT?

YES, SIR.

THAT IS THE RE WAS A CLA IM THAT THE IMPACT R ULE WOULD PRECLUDE THAT CAUSE OF ACTION BECAUSE THERE WAS N O PHYSICAL IMPACT INVOLVED IN THIS CASE ; IS T HA T CORRECT?

YES, SIR.

LET ME J US T , S O Y OU DISPU TE THAT THE A TTORNE YS FEES AND COSTS PAR T A RE NOT PART OF T HI S APP EAL? > > I AGR EE W IT H T HAT , YOUR HONOR.ON THE IMPACT PART OF THIS , NOW, THE COURT WAS T O F IND THAT 766 B AR RE D T HE C LAIM THEN THAT WOULD A LSO TAK E AWAY THE ATTOR NE YS FEE S A ND COSTS BUT A BSOLUTELY AS TO THE I MPACT RULE PORTION THE ATTORNEYS F EES AND COSTS WOULD BE SEPARATE A ND A PART FROM THE EMOTI ON AL I NJ URY.

SO YOU ARE C ONCEDING THAT THERE IS A REC OG NI ZE D CAU SE OF ACTION PLED?

NO, SIR. AND T HAT'S T HE I NTER ES TING , I GUESS , D ILEM MA THA T WE A RE IN HERE. THE COURT DISMISSED T HI S CLAIM WITH PRE JUDICE O N T HE COMPLAINT.WE NEVER REACHED T HE POINT OF SUMMARY J UD GM ENT. WE NEVER REACHED THE P OINT EVEN THOUGH BOTH P AR TIES WERE D EPOSED IN T HE UND ER LY IN G CASE.

WHERE ARE WE O N T HA T? AND THIS REALLY I S COMING BACK TO JUSTICE W EL LS ' STATEMENT, YOU KNOW , TO YOU , AND THAT IS O RD IN ARIL Y W E SEE T HE I MPACT O F T HE IMP AC T RULE AND THAT IS SORT O F SAYING, YOU KNOW, HERE IS A FORMULA AND THERE IS A C AUSE OF ACTIO N T HERE , O KA Y ? E XCEPT T HAT THE RE W AS N O IMPACT, ALL RIGHT? AND S O T HE RE , T HE N , THE D ECISION I S M AD E. DO YOU HAVE TO HAVE A N IMPACT AND THA T I S SOR T OF W HAT OCC URRED H ERE , B UT THERE IS SORT OF AN U NK NO WN WITH REFER ENCE T O I S THE RE A V ALID CAUSE O F ACT IO N H ER E T O BEGIN W ITH? THAT I S , DOE S A THI RD P ARTY HAVE A VAL ID C AUSE O F A CTIO N AGAINST A, YOU KNOW , I'L L STATE IT IN THE W AY THA T I HAVE WON DE RED ABOUT IT, LOOKING AT THE CASE , Y OU KNOW, A GA INST S OME PROFESSIONAL, YOU KNOW , L IK E A PHYSICIAN O R WHATE VE R , BUT AFTER BEING TOL D T HESE THINGS BY WHOEVER B RING S THE CHI LD IN AND THE N T AL KING TO THE CHILD, YOU K NO W , SAY S , WELL, Y OU KNOW , I'M A LL KINDS OF BEL LS H AV E G ONE OFF WITH ME AND I'M VER Y CONCERNED AFT ER B EI NG TOLD T HAT T HE C HILD W OU LD B E RETURNED TO THE OTHER P AR ENT OR AFTER WHAT I H AV E B EE N TOLD AND, THEREFORE , I DON 'T THINK THE CHILD OUGHT TO G O BACK UNLESS S OM ET HING HAPPENS. IS THERE A RECOG NI ZE D CAUSE OF A CTIO N A GA INST A P ROFESSIONAL ? DID YOU ALL RES EARC H WHETHE R OR NOT IN O THER JURISDICTIONS O R I S THI S A N EXTENSION OF THE INTERFERENCE WITH PAREN TA L RIGHTS O R S O A S A PRELIMINARY TO T HE I MPAC T PART, C OULD YOU T EL L U S W HA T YOUR POSITION IS AS TO WHETHER OR NOT THERE IS A CAUSE OF A CTIO N R ECOG NIZE D IN FLORIDA S UCH A S H AS B EE N BROUGHT HERE IN THIS THIRD COUNT?

WE WOULD S UB MIT , J UDGE, THERE IS NOT.

AND BEFORE YOU ANSWER THAT, AND I , YOU K NO W , O N THIS, THI S H AS N OT B EE N A N ISSUE THAT YOU B RIEF ED O N APPEA L . I'M NOT S AYIN G T HAT W E C AN'T OURSELVES CONSIDER IT , BUT I WANT TO M AK E S UR E T HA T T O %% --ppTHIS COURT IT IS NOT ONE OF THE ISSUES T HA T Y OU B RI EFED . %% --pp

IT W AS C OLLA TE RALL Y BRIEFED BY THE FLO RI DA %%-- ppDEFENSE LAWYERS.

BUT YOU HAVE NOT B RIEFED IT. ALL RIGHT. NOW, PLEASE WITH THAT I N MIND.

YOU BRIEFED THIS I N THE DISTR ICT COURT.

NO, WE DI D N OT . IT NEVER CAME UP B EC AU SE W E WERE C ON STRAINED TO W HA T T HE TRIAL COURT DID A S T O T HE DISMISSAL OF THE I NI TIAL COMPLAINT WHICH W AS THE FINDING AS OF COUNT T HREE BARRED BY 766 AND OR B ARRE D BY THE IMPACT R UL E AND S O THAT'S WHAT WE ARGUED I N FRONT OF THE FIRST AND W HICH WAS BRIEFED IN FRONT OF T HE FIRST. IF WE ARE DEALING WITH T HA T ISSUE D EN OV O , T HO UGH , W E W OULD IN LIN E WITH T HE FLORIDA DEFENSE LAWYERS BRIEF.

IT SEEMS L IKE T HE DCA D ID SAY T HA T THE RE WAS A CAU SE OF ACTION. ISN'T THAT WHAT THE D CA HELD?

IN SPI TE OF U S NOT BRIEFING THAT OR ARGUING THAT TO THE D CA . THE CAUSE O F ACTION T HA T H AS BEEN RECOGNI ZE D I S A N INTENTIONAL INTERFERENCE WITH PARENTAL R IG HTS. THIS HAS B EE N TER ME D A S A NEGLIGENT I NT ERFERENC E. THERE WAS NO CAUSE O F A CT ION IN THE STATE THAT WAS RECOGNIZED --

WHY WOULDN'T YOU B E I N A POSITION IF WE HOL D T HA T T HE IMPACT RUL E R EALL Y DOE SN 'T AFFECT, I H ESIT AT E T O S AY IMPACT, AFFECT T HE RESOLUTION OF THAT , W HY WOULDN'T YOU STILL B E F RE E TO ATT AC K T HI S CLA IM AND THE TRI AL C OURT , Y OU K NO W , WHE N THESE PROCEEDINGS GO B ACK TO THE T RIAL COURT , O R H AS THE RULING OF THE D ISTRIC T COURT OF A PP EA L A LREA DY RES OL VE D THAT? T HAT I S , I S T HE LAN GUAGE IN THEIR OPINION SUCH THAT T HA T WOULD BE CONSTRUED T O S AY , YES, THERE IS A VIABL E CAU SE OF ACTION F OR T HE N EG LIGE NT INT ERFERENCE?

IT WOULD B E OUR I NI TI AL POSITION, YOUR HONOR, THA T THAT IS NOT ENOUG H I N T HE OPI NION ITSELF , B ECAUSE THE CONTEXT OF THE OPINION OF THE FIRST DISTRICT IF L OOKE D AT CAREF ULLY , E M A N A TE S AND INVOLVES THE IMPACT R ULE AND THIS CAUSE OF ACT ION IS SEEN AS PART AND PAR CE L A S SOMETHING THAT FALLS BEEN THE EXCEPTION, FOR E XAMPLE , THAT WAS I N RAU EL VER SU S HOLT.

ARE YOU S AYIN G Y OU D IDN' T RAISE THIS BECAUSE YOU DIDN'T SEE THIS AS A CLEAR-C UT RULING THAT THERE IS A CAUSE OF ACTIO N HER E , REALLY, AN O RD ER F OR T HE %%-- ppIMPACT RULE TO B E A P AR T O F AN I NG RE DI ENT OR N OT A N INGREDIENT?

THE REASON IT WAS NOT RAISED, IT WAS NOT R AI SE D I N FRONT OF THE TRIAL COURT AND IT WAS NOT RAI SED A T O RA L ARGUMENT IN FRONT OF THE FIRST DISTRICT.

W OULD W HY W OU LDN' T Y OU HAVE HAD TO HAVE R AISE D IT IN FRONT OF T HE T RI AL C OU RT IN SAYING THE I MP ACT RULE I S REALLY A CON SEQUEN CE H ERE BECAUSE I DON'T CARE HOW YOU CUT IT, THERE IS N O S UC H CAUSE OF ACTION R EC OG NIZE D IN T HE S TA TE O F FLO RI DA F OR THE N EG LI GE NT INT ER FERE NC E I N PAR EN TAL RIG HT S O R WHATEVER AND, Y OU KNOW , THAT'S SOMETHING THAT IS BASIC AND HAS TO B E R ES OLVE D EVEN BEFORE Y OU G ET TO WHETHER OR NOT THERE ALSO HAS TO BE A N IMP AC T .

WE DIDN'T R AISE IT AT THE TRIAL LEVEL, YOUR H ONOR, BECAUSE THE RE WAS A G RE AT MANY THINGS THA T WAS - - T HA T WERE YET TO COME AS FAR A S DEPOSITIONS.THE PLAN WAS IF WE WER E N OT SUCCESSFUL ON THE M OTION TO DISMISS AND WE FEL T V ER Y CONFIDENT ON THE 766 ISSUE AS WELL AS THE I MP ACT R UL E ISSUE, TO RAI SE IT , D ISPOSITIVELY O N S UM MA RY J UDGMENT , U TI LI ZI NG T HE FACTS FROM M R. W EL KE R' S DEPOSITION.

IF SOM ET HING HAS A S TA TE D CAUSE OF ACTION YOU DON'T HAVE TO GO TO THE SUM MA RY JUDGMENT PHASE AND YOU H AVE ALREADY SAID THERE ARE ATTORNEYS FEES AND COSTS AND YET IF IT D OESN'T S TATE A CAUSE OF ACTION WE CAN'T B E UP HERE T ALKING A BO UT I MPAC T RULE WHEN THE F IR ST ISS UE I S WHETHER, AND I P UT I T MORE AS TO WHE THER A DUT Y ARI SES UNDER THESE C IR CU MSTA NCES T O THE FATHER FRO M T HE W RI TING OF THE REP OR T W HE RE I F T HE MOTHER HAS BROUGHT, YOU KNO W , SO I DON'T KNO W , A ND BUT I D O - - I H AV E S IM IL AR CONCERNS. I JUST DON'T KNOW H OW W E I N THIS CASE G ET A RO UN D A T LEAST DOING SOMETHING ABOUT THE IMPACT R ULE O R A LS O DISCUSSING D IS CUSS IN G 7 66 , WHICH YOU S EE M T O THI NK YOU C AN HANG YOU R H AT ON.

I DO , YO UR H ONOR , A ND BACK TO YOUR QUESTION AS T O WHAT WENT ON AT THE T RI AL LEVEL . A C LA RI TY WAS FOU ND B Y J UD GE WEBSTER THAT RES PECTFU LLY T O HIM WE DID NOT SEE IN THE COMPLAINT. THERE WAS S OM E AMB IGUI TY A S TO WHA T T HE PLA INTI FF W AS CLAIMING IN COUNT 3. THAT H AS N OW BEE N REF IN ED B Y JUDGE W EBSTER AND C AL LE D NEGLIGENT INT ERFERENCE WITH PARENTAL RIGHTS.IT WAS NOT THAT CLEAR AT THE TRIAL COURT LEVEL. THAT WAS PART OF T HE R EASON WE WANTED T O GO T HROUGH T HE D EPOSITION PROCESS.

I'M SURPRISED I T G OES BACK THAT T HI S W AS NOT RAISED BY Y OU AS AN ISS UE O N A PPEAL SO THAT T O OUR C OU RT SO THAT YOU COULD, S INCE I T WASN'T JUST JUDGE W EBST ER'S OPINION BUT BE THA T A S I T MAY, ARE YOU PREPARED T O ARGUE THAT ISSUE? ARE WE GOING TO - - W E'VE PROBABLY TAKEN MOST OF YOUR TIME UP?

I'M PREPARE D T O ARG UE T HE IMPACT ISSUE AND THE 766 ISSUE.

ON T HE IMPACT I SS UE R ULE IT WOULD MAKE A DIFFERE NC E WHETHER THI S W AS A LL EGED T O BE A N I NTEN TI ON AL T OR T O R A N EGLIGENT TORT , I SN 'T THA T CORRECT? IF IT WAS AN I NTEN TION AL TORT THEN THE IMPACT RULE WOULDN'T APPLY.

EXACTLY. I D ON'T B ELIEVE THERE IS A NY QUESTION, YOUR HONOR, THAT THIS IS NOT AN INT ENTI ONAL TORT. AS A MATTER OF FACT, IF YOU LOOK CLOSELY AT C OU NT 3 , I T SPEAKS A BO UT NEG LIGE NC E N EGLIGENCE. IT DOESN'T TALK ABOUT INTENTIONALITY. THERE W AS S OM E REFER ENCE I N COUNT TWO, A LIA BL E COU NT , THAT HAS BEEN D IS MI SS ED WIT H PREJUDICE.

THAT'S WHERE I A M HAV IN G THE PROBLEM U NPEE LING T HI S O NION BECAUSE A S SEV ERAL MEMBERS OF THE C OURT HAV E SAID YOU HAVE TO PEE L T HIS. YOU'VE GOT TO GO BACK T O BASICS AND FIGURE OUT B EFOR E YOU CAN FIGURE O UT W HE TH ER T HE I MPACT RULE A PP LI ES WHAT YOU ARE T ALKING ABOUT IN THE FIRST PLACE , BECAU SE O F - - THERE IS A DIF FERE NC E T O THE TYPES O F THING S T HA T THE IMPACT RULE A PP LI ES T O A ND TYPES O F T HI NG S THAT T HE IMPACT RULE DOES NOT APPLY TO, AND I D ON 'T KNO W H OW THAT C OU LD HAV E B EE N FERRE TED OUT IN THE TRIAL COURT.

THE ARGUMENT , YOUR HONOR, TO JUDGE BOW DE N B EL OW , WAS THAT WE KNO W DEF INIT IVEL Y AND IT WAS AGREED T O B Y MR. DATZ THAT THERE W AS NO PHYSICAL INJURY. THERE WAS N O I MPACT. THAT STOOD U NDIS PU TE D I N T HE RECORD. WE KNOW COUNT 3 W AS A NEGLIGENT CLAIM , SO W E KNO W P UTTING THOSE TWO P IECE S TOGETHER THAT NERD O GET - - IN ORDER TO G ET AROUN D THE NEG LIGENCE BAR , THE RE BEI NG NO IMPACT.

DO W E KNO W T HA T F OR CERTAIN? I TAKE IT T HI S WOULD B E A STANDARD PRACTICE WHEN YOU START OUT COU NT 2 , YOU SAY , WE REA LL EGE E VERYTHING WE ALLEGED IN COUNT ONE A ND I N THREE Y OU S AY W E R EALL EG E EVERYTHING THAT WE ALLEGED IN COU NT S ONE A ND TWO , W HICH INCLUDE S OM E A LL EGAT IONS O F %% --ppINTENTIONAL MISCONDUCT ; IS THAT CORRECT ?

IT DOE S RAI SE %% --ppMALICIOUSNESS , B UT T HE RE I S N O F RANK REI NCOR PO RA TI ON %% --ppCOUNT 2 INT O COU NT 3. COUNT 3 START S O FF DEN OV O , S O A S T O T HE I NT ENTI ON AL IT Y PART OF IT , I W OU LD S UB MI T AND I KNOW IT IS NOT I N FRONT OF THIS COU RT , THE %% --ppIMONY WAS A BS OLUT EL Y C RYSTAL C LEAR FRO M V ALER IE BRINK, THE COU NSELOR , T HA T THERE WAS N O SEN SE O F INT ENTIONALITY, MALICIOUSNESS.SHE WAS SIM PL Y P AS SI NG A LO NG WHAT SHE WAS TOLD.

BUT THIS W AS A D EC IS ION RENDERED BY THE TRIAL COURT JUST ON THE PLE ADINGS ; IS THAT CORRECT?

YES, SIR.

THIS I S A MOTIO N T O DISMISS FOR THESE V ARIOUS REASONS AS OPPOSED T O A SUMMARY J UD GMEN T A S T O DISPOSING OF THAT. WOULD YOU AGREE IF T HERE I S A SUC CE SSFU L A LLEG AT IO N OF A N I NT EN TI ON AL T OR T THA T UNDER OUR L AW T HAT' S OUT THERE NOW, REALL Y T HA T T HE RE WOULD BE NO REQUIREMENT O F PHYSICAL IMPACT?

YES, SIR. I THINK THAT'S CLEAR.

SO IT' S W HERE THI S C AU SE OF A CT ION T HE N S ITS A S TO WHETHER OR NOT THERE W OULD BE A R EQ UI REME NT O R N OT A REQUIREMENT. IS THAT --

YES, SIR.

NOW, O N THE I SSUE , T HE ISSUE I KNO W T HE HAS - - THE HOSPITALS ARE INT ER ES TE D IN. I S THE H OS PITA L V ICAR IO US LY %%-- ppLIABLE, IN R EA DI NG T HE TWO , %% --ppGOLDMAN IN THIS CASE , IT WOULD SEEM ISN'T THE REAL ISSUE AS TO WHE THER THI S I S -- A SS UM IN G W HE NEVE R W E GET TO THE CAUSE OF ACT IO N IMPACT RULE IF IT IS BARRED BY THE N OTIC E REQ UI RE MENTS WHETHER THIS IS A MED ICAL %% --ppMALPRACTICE CLAIM?IN OTHER WORDS, EVEN IF YOUARE A HEA LTH CAR E PROVIDER , THE CLAIM HAS TO B E O NE T HA T I S F OUND I N M EDIC AL NEGLIGENCE, CORRE CT?

I THINK T HE K EY I S WHETHER IT A RI SES O UT O F THE RENDERING OF M ED IC AL C AR E AND T HE QUEST IO N IS : MED ICAL C ARE, WHICH IS NOT DEF IN ED BY THE STATUTES.

SO A MEN TA L HEA LT H COUNSELOR I NV OLVE D I N COUNSELING , U ND ER WHA T LEA P DO YOU GET TO T HA T THA T' S M EDICAL CARE?

WELL, WE K NOW T HI S COUNSELOR, BASED ON THE PLEADINGS, MADE A DIAGNOSIS OF P TS D. WE KNOW THAT THIS COU NSEL OR GAVE HER CLINICAL O PI NION AND AS A MATTER OF FACT THE CLINICAL OPINI ON I S SER IALL Y R EFERENCED T HROUGHOUT THE COMPLAINT.WE KNOW T HAT SHE GAV E TREATMENT RECOMMENDATIONS BASED ON HER LETTER. WE KNOW THAT ONE OF T HE THINGS THAT M EN TAL H EA LT H COUNSELORS DO IS T HE Y ASS IMILATE INFORMA TION T O D ETERMINE THE CRE DI BI LI TY .

BUT WE ALSO K NOW WHEN T HE LEG ISLATURE PASSED T HE MEDICAL MALPRACTICE ACT T HAT THEY SAID YOU'VE GOT HOSPITALS AND MEDICAL CARE, AND THEN YOU'VE GOT M ENTA L HEALTH COUNSELORS , A ND I F T HEY WEREN'T TRYIN G T O ASSIST O R PROTE CT MEN TA L HEALTH COUNSELORS , I T W AS F OR MEDICAL CARE, SO I D ON'T KNOW HOW, BECAUSE THE Y BECOME EMPLOYED BY T HE HOSPITAL ALL OF THE SUDDE N SOMETHING T HAT IS N OT S UBJECT TO THE M EDICAL MAL PRACTICE ACT C OMES W IT HI N IT. I B UY Y OU R A RG UM ENT THAT Y OU OBVIOUSLY A CT A S Y OU R A GENT %% --ppS O IF YOU'VE G OT SOM EBOD Y WHO IS N EGLI GE NT LY P ERFORMING MAMMO GRAM SERVICES JUST BECAUSE THEY ARE NOT HEALTH C ARE PRO VI DER DOESN'T MEAN IT IS NOT A MALPRACTICE CLAIM, BUT WHEN IT IS TOTAL LY S OMETHING THA T %% --ppIS UNDER EVE RY OTH ER CIRCUMSTANCE WOULDN'T BE SUBJECT TO T HE M ALPR AC TICE PRESUIT, I DON 'T U NDERSTAND HOW YOU GET INTO THE RE JUS T BECAUSE THE MENTAL HEA LT H COUNSELOR IS EMPLOYED BY T HE HOSPITAL.

W E WOU LD SUBMIT, IF YOU LOOK AT THE D EF IN ITIO N O F MEDICAL CARE AND I K NO W JUS TICE C AN TE RA T AL KE D A BO UT DEFINING TERMS, I F YOU L OO K AT THAT TER M I T T AL KS ABO UT PROFESSIONAL TREATMENT FOR ILLNESS OR INJURY AND CERTAINLY HERE WE HAVE P ROFESSIONAL TREATMENT FOR ILLNESS OR INJURY BY A F ULL-TIME EMPLOYEE OF THE HOSPITAL.

YOU MEAN T HAT'S LIKE A PLAIN MEANING OR A MBIGUO US , HOW IS T HAT? IS IT A N A MBIG UO US TER M?

WELL, IT P ERHA PS S OME HAVE SAID SO, YOUR HONOR. WE WOULD S UBMI T B AS ED ON T HAT DEFIN ITION, I ALS O FOUND ANOTHER DEF INITION SAYING THAT IT RELATES T O TRE ATMENT OF I LLNE SS O R %% --ppINJURY, SO, AGAIN , P UT TING THOSE TWO DEFINITIONS TOGETHER, WE H AV E TRE AT MENT FOR ILL NESS O R I NJ UR Y B Y THIS MEN TA L HEA LT H COUNS EL ORWHO IS A M AS TE RS L EVEL MENTAL HEALTH C OUNSELOR WIT H TWO YEARS O F INT ER NS HI P DOING WHAT SHE DOES FOR THE HOSPITAL .

S O U SUALLY WHEN Y OU T HINK OF MEDICAL CARE , Y OU THINK OF PEO PL E W HO H AV E SPE CIALIZED TRAINING, HAVE GONE TO M EDICAL SCHOOL O R DENTAL SCHOOL OR, YOU K NO W , SO ANY PERSO N T HE N WOU LD FALL UNDER -- A NY KIN D O F %% --ppSOCIAL SERVI CES COUNS EL OR , W OULD T HA T P ER SO N T HE N FAL L UNDER YOUR D EF INIT IO N? > > W EL L , WE K NO W --

BECAU SE T HE Y T AL K TO PEOPLE AND TRY TO HELP THEM. SO WE ARE O PENING U P T HE D EFINITION HERE O F W HA T WOULD BE THE RENDERING O F MEDICAL CARE AND TREATMENT, AREN'T WE?

J US TI CE Q UINCE, I W OU LD SUBMIT THAT'S BEYOND WHE RE A MENTAL HEALTH COU NSELOR IS. THIS IS MORE A KI N T O A N UR SE AND WE KNOW STA TU TO RILY , NURSES A S A M AT TE R O F STATUTORY LAW ARE D EEMED T O BE CARRYING O UT MEDIC AL C AR E BECAUSE THEY ARE INCLU DE D SPECIFICALLY AS MENTAL H EALTH CARE P ROVI DERS W IT HI N THE STATUTE. > > BUT I T WOU LD S EE M A S THO UGH H OSPI TALS ENG AG E I N SUCH A WIDE V AR IE TY O F ACTIVITIES THAT WE W OU LD JUST BE SPI NNIN G THE W HEEL TO FIND WHERE T HIS GOE S I F WE DON'T DEFINE IT B Y CERTAIN CHAPTERS. FOR EXAMP LE , A D IE TICI AN, A N UTRITIONIST WIT H ADV AN CE D DEGREES WHO PRO VIDE F OO D F OR %% --ppTHE CARE, ILLNE SS , YOU S EE , I MEAN THIS THI NG B ECOM ES , IT JUST S WA LL OW S E VE RYTH IN G UNLESS WE H AVE SOME REA L DEFIN ING LINES O F W HA T T HE CONCERN IS, I T HINK.

WE WOULD SUBMIT , J USTICE LEWIS, THAT THE DEF IN ITIO N NEEDS TO BE HEALTH C AR E PROVIDER, ONE, AND T HEN THE SECOND PRONG WHETHER IT ARISES OUT OF T HE RENDERING OF M EDIC AL C AR E. MEDIC AL CARE MEANING THAT PROFESSIONAL TREATMENT FOR ILLNESS OR INJURY THAT , DIETICIAN I N FUE NT ES F AL LS WITHIN THAT DEFINITION AND THE RADIOLO GY T EC HN IC IAN IN GOLDMAN F ALLS WITHIN THAT DEFINIT ION.

DOES S HE R EA LLY - - D ID THE PERSON HER E R EA LL Y RENDER ANY KIND O F MED IC AL CARE AND TREAT ME NT ? SHE RENDERE D A N O PINION A ND A LETTER THAT WAS T HEN USE D FOR SOME O THER PUR POSE AND IT REALLY WASN' T U SED FOR THE TREATMENT OF ANYONE , W AS IT?

WE K NO W A ND , A GAIN , NOT IN THE RECORD IN F RONT O F THIS COURT BUT SHE SAW T HESE CHILDREN MULTIPLE T IM ES. COU NSELED THEM, TREAT ED T HE M %% --ppOVER SEVERAL DIFFERENT SESSIONS. THIS PARTICULA R L ETTE R E MANATES FROM THE THI RD SESSION WITH THOSE CHILD RE N SO SHE DID P RO VI DE TREATMENT.

ANOTHER POINT, THE COMPLAINT DOES NOT ALLEGE THAT THE A CT UA L T REAT ME NT , IF THAT'S WHAT IT WAS, THA T WAS DON E, WAS D ON E I N A NEGLIGENT MANNER. IT IS S IM PL Y T HA T T HE Y D EFAMED NEG LI GENT LY T HE FATHER. NOT THAT THEY W ERE N EGLI GE NT IN THE WAY THE Y T RE ATED T HE CHILDREN.

C OR RECT . %% --pp

EVEN A SS UMING T HAT T HIS FALLS WITHIN THE PEN UM BR A O F A M EDICAL SERVICE, HOW I S THE RESULT OF THE ACTION AS A RESULT OF T HE M ED ICAL SERVICE ITSELF?

THE BASIS O F THI S CLA IM IS PASSING ALONG T HI S INFORMATION THAT IT IS UNDIS PUTED THESE C HILDREN ARE RELATED TO T HIS COUNSELOR, PART OF WHAT C OUNSELORS DO I S DET ER MINE HOW VAL ID THA T I NF OR MATION IS WITHIN T HEIR PROFESSIONAL TRAINING. DETERMINING W HETHER SOMETHING HAS CREDIBILITY. IN A HEALT H CARE S ET TING , S O IN ESSENCE B Y S AY ING T HAT SHE I MPROPERLY PASSED T HA T INFORMATION ALONG THEY ARE SAYING THAT SHE FELL B ELOW HER STANDARD OF C AR E I N PROVIDING THAT.

YOU KNOW , IRO NI CALL Y B Y YOUR MAKING SUCH A F OR CE FU L ARGUMENT THAT THIS IS A MEDICAL PRACTICE CAUSE OF ACTION, YOU END U P A NS WERING THE QUESTION THAT WE F IRST STARTED O UT WITH THA T T HERE IS A CAUSE O F ACT IO N , S O YOUR E XC EL LE NT A DV OC AC Y MAY CAUSE SOME C ON CERN S B EC AUSE D O YOU UNDERSTAND WHAT I AM SAYING? IF YOU ARE SAYING THIS COU LD BE NEGLI GENCE I N THE TREATMENT IF THEY SHOULD HAVE VERIFIED THI S BEFOR E AND THEN THIS CAUSED HAR M ? %% --pp

WE WOU LD SUB MI T NOT , GIVEN WHAT WE KNOW TO B E T HE F ACT OF THIS C AS E F IR ST SIMPLY P ASSING A LONG T HE %% --ppINFORMATION IT HAS BEEN PLED AS SUCH , YOUR HONOR, AND ALSO I'M NOT P AI NTIN G O N A CLE AN LAN DSCAPE. WE KNOW F RO M P AT E VERSU S THRELKEL THAT N ONPA TIEN T PLA INTIFFS CAN BRI NG C LAIM S SO THAT CASE CRE ATED A DUT Y IN THAT SETTING.

WE HAVE WIT H O UR QUESTIONS GOING F ROM WHETHER THERE IS A CAUSE O F ACTIO N TO WHETHER THERE IS A MEDICAL MALPRAC TI CE C AUSE O F ACTION, WE' VE USED UP YOU R TIME. THANK YOU VERY MUCH .

THANK Y OU . > > MAY I T P LEASE THE C OURT , I'M LAW RE NC E DAT Z , I %% --ppREPRESENTED THE PLAINTIFF BEFORE THE TRIAL COURT.

IT SEEMS T O M E W HA T W E HAVE HERE IS A L ITTL E L IK E DEBATING WHETHER TO HAVE A NINE HOL E G OL F COU RS E O R A 18-HOLE GOLF COURS E WIT HO UT HAVING DECIDED YOU ARE G OING TO BUILD A GOLF COU RS E. DON'T WE HAVE TO G O T HROUGH STEP 1 BEFORE W E REACH S TE P 3, WHICH IS DON'T WE HAV E TO DEFINE THE CAUSE O F A CT IO N BEFORE WE DEFINE WHAT T HE DAMAGES FOR THE C AUSE OF ACTION ARE?

YES, SIR. I AGREE. IN FACT , I ANS WE R THAT Q UESTION HEAD ON , S O T O SPEAK , C OU NT 3 W AS P LE D AS ORDIN ARY NEGLIGENCE, AND JUST, YOU KNO W , SIM PL E L AW SCHOOL IS H T YP E S TUFF A BO UT DUT Y , BRE AC H OF DUTY , CAUSATION AND DAMAGE. WHAT HAPPENED W AS I S T HA T THE HOSPITAL FILED A M OTIO N TO DISMISS , A ND I N THE %% --ppGROUNDS IN A MOTION T O DISMISS, THE O NE S THA T THE %% --ppTRIAL JUDGE RULED O N , WER E THAT, O NE, H E D IS MISSED B ASED ON THE I MPAC T R UL E , AND , TWO , T HA T I T WAS A MEDICAL MALPR AC TICE CAUSE OF ACTION AND, THEREFORE, THE STATUTE OF LIMITATIONS HAD EXP IRED. THE N A S P LAIN TIFF W E APPEALED TO T HE F IR ST DISTRICT.

WHEN YOU S AY T HEY R AISE D OTH ER POINTS, DID THE Y R AI SE ALTERNATIVELY THAT THE RE WAS NO RECOGNIZE D C AUSE O F ACTION?

FRANKLY, I DON 'T REM EMBE R THE E XACT WORDING OF T HE MOTION TO D ISMISS. I D O KNO W T HA T, YOU K NO W , I THINK T HEY GEN ER ALLY PLE D FAILURE TO STATE A CAUSE O F ACTION, BUT I DON'T KNO W WHETHER THEY I NC LU DE D SPECIFIC GROUNDS. I THINK THEY RELIED M OR E O N THE 7 66 D OCTR INE.

BUT WAS YOUR A LL EG ATION THAT THERE WAS N EGLIGE NC E I N TREATING THE CHILDREN? JUST GOING BACK TO T HAT.

NO , YOUR HON OR .

IN F AC T , T HIS I S A CTUALLY ONE OF THE MAIN POI NTS I WANTED TO M AKE. T HE COMPLAINED O F A CT O F NEGLIGENCE OR T HE F OC AL A CT W AS THE ISSUA NCE O F T HI S LETTER TO WHOM I T M AY CONCERN, AND FRO M THA T WELKER WAS A R EASO NABL Y FOR ESEEABLE VICTIM , I F Y OU WILL, OF T HE C ONTE NT S O F T HAT LETTER.

BUT IF EVERYTHING THE PERSON DID WAS P ROPE R I N O R NOT - - YOU ARE N OT A LL EGED LY THERE WAS A NYTH IN G I MP RO PE R IN TERMS OF THE D IAGNOS IS AND THIS WAS JUST A R EPOR T , WHY WOULD THERE BE ANY DUT Y TO SOMEONE O UT O UT SI DE OF THE CHILDREN? THAT'S WHERE I A M H AVIN G T HE P ROBLEM IN TERMS OF E ITHER THIS WAS A NEG LI GENT W AY T O %% -- ppAPPROACH THE D IAGNOS IS A ND TREATMENT, B UT I F I T WAS N' T THEN WHE RE W OULD THE D UT Y ARI SE NOT T O W RI TE A LET TE R S AYING WHAT SHE FOUND TO B E HER D IAGNOS IS ?

T HA T LETTE R W AS , I G UE SS , A COUPLE OF P OI NTS. ONE HAS TO DO W IT H F ORESEEABILITY.

DUTY , DUTY. WHERE IS T HE DUT Y? WHAT IS IT THA T W AS NEGLIGENT IF I T W AS N'T TREATING THE CHI LD REN?

THE NEG LI GE NCE WAS T HA T SHE REN DERE D T HE OPINI ON THAT THE CHILDREN SUF FE RE D FROM POSTTRA UMAT IC S TRES S DISORDER WIT HOUT INVESTIGATING THE CLAIM, LETME BACK UP FOR A SECON D. S HE REACH ED T HA T O PINION A ND INCLUDED IN HER LETTER NOT ONLY THE OPINION BUT THE %% -- ppFACTUAL S TATE ME NT THA T T HE CHILDREN S UF FE RE D F RO M T HE PTS D AS A RESULT OF ABUSE BY THE FATHER AND THE A BUSE COMMITTED I N T HE P RESE NC E O F THE CHILDREN.

WHERE I S T HERE A D UT Y , BECAUSE IT SEEMS TO M E W HAT YOU ARE SUGGEST IN G I S N OW %% --ppTHAT ANY P HY SI CIAN O R PSYCHIATRISTS OR WHATEVER THAT HAS T HE SE T HI NG S , FOR INSTANCE, A D OC TO R T HA T I S PRESENTED, YOU KNOW , W IT H PHYSICAL TRAUMA , YOU K NO W , THAT THE BABY F EL L OUT O F B ED AND SAID , H O , H O , H O , I DON'T BELIEVE THE BABY FEL L OUT OF BED AT A LL AND I 'M GOING TO CALL THE TEA M T O GET OVER HERE , THE C HI LD %% --ppPRO TECTION TEAM AND BEFORE YOU KNOW IT , THE S TA TE ATTORNEY HAS F ILED A N INFOR MATION AND W E' VE GOT SOM EBODY HAULED OFF AND , YOU KNOW, N OW M AY BE I'M P AINT IN G A G REATER PIC TURE , B UT W HA T I AM SAYING IS Y OU REA LL Y ARE SUGGESTING IF THERE I S A CAUSE OF ACTIO N H ER E T HA T T HE BOY, Y OU T ALKED ABOUT THE FLOOD G AT ES , THA T EVE RY TIME SOMEBODY COULD H AV E DONE SOMETHING M OR E , BUT W HERE IS THERE ANY D UT Y T O T HIS A BS EN T P AR EN T T O D O EVERYTHING TO GET I T R IGHT ? THAT IS , I F T HE C HI LDRE N HAVE SAID S OMETHING OR IF THE MOTHER S AY S SOM ETHI NG , A PHYSICIAN CAN SAY, WEL L , I F THAT'S ALL TRU E , THE N I DON'T THINK THESE CHILD RE N OUGHT TO GO BACK T O T HA T ENVIRONMENT, AND YOU ARE SAYING EVERY TIME THAT HAPPE NS THAT THEY G OT I T WRONG, THAT THERE IS G OING TO BE A CAUSE O F ACT IO N AGAINST THE P ARENT THAT DIDN'T GET THE KID S BA CK , AND I'M HAVIN G T RO UBLE .

LET M E R EC ONCI LE T HA T F OR YOU , J USTICE A NSTEAD . THE DIFFERENCE IS THIS : FIRST O F A LL , WHE RE T HE COMPLAINT AND THE THEORY OF THE COMPLAINT IS N OT T HA T THIS PERSON SHOULD HAVE DONE EVERYTHING THEY COU LD D O. THE THEORY O F T HE C OMPLAINT, AND F RANKLY IT IS A PRO FESSIONAL L IABILITY TYPE OF THEORY. IT IS NOT MED ICAL MALPRACTICE, BUT STI LL PROFE SSIONAL LIABILITY TYPE OF THEORY , THA T I T FEL L BELOW T HE STA ND AR D O F CAR E OF A P ERSON IN H ER P OSITION.

WHERE HAVE WE EVE R RECOGNIZED THIS D UT Y N OW T O THE A BS ENT P ARENT , YOU KNOW , ON A NEG LIGENC E COU NT ? IN OTHER WORDS, WHAT WOU LD YOU EITHER NATURAL SIZE T HIS TO OR - - A N A L JIZ T HI S T O? > > LET M E E XPLAIN THIS FURTHER.WHAT HAPPENED WAS THE ORIGINAL C OMPLAINT JUS T V OL ED %% --ppTHE -- INV OLVE D T HE C OUNT O F NEGLIGENCE WHICH HAS BECOME COUNT 3 BEFORE YOU NOW. IT WAS R EFIN ED W HEN I T GOT AMENDED BUT I N THE A ME ND ED %% --ppC OMPLAINT, C OU NT O NE WAS ABOUT NEGLI GE NC E P ER SAY , - - P ERSE, FAI LURE T O R EPOR T TO %% --ppD CF.

BECAUSE YOUR TIME IS LIMITED , COUNT O NE , T HE D ISTRICT COURT , H EL D A S A MATTER OF LAW W AS NOT - - DIDN'T STATE A CAUSE OF ACTION. COUNT TWO , YOU R O PPONEN T SAYS Y OU S TI PULA TE D THA T I T %% --ppW AS DISMISSED.

YES, SIR.

SO WE'RE D OW N T O C OU NT THREE AND THE S PE CI FI C LANGUAGE IN C OU NT THR EE T HA T I 'M S EEING IS T HA T B RI NK M ADE STATEMENTS IN THE LETTER WITHOUT KNOWINGWHETHER THE PUR PO RTED FACTUAL BASIS OF HER OPINI ON WAS TRUE, F ALSE OR UNABL E T O BE V AL IDAT ED , BRINK HAD A DUTY O F R EA SO NABLE CARE T O I NVESTIGATE O R V AL IDAT E THE A CTUAL A LLEGAT IONS O F T HE PLAINTIFF'S PURPORT ED M ISS DEDUCT. THOSE WERE YOU R A CT UAL ALLEGATIONS, CORRECT?

YES, SIR.

AND IT IS ON T HE BASIS O F T HOSE A LLEGATIONS , NOT S OM E ALLEGATION THAT T HE RE W AS A BREACH O F P RO FE SS IONA L CONDUCT OR ANYTHING E LS E , THAT OTHER THA N WHA T I S IN YOUR COMPLAINT , T HA T T HE QUESTION HAS TO B E A NS WE RE D AS T O W HERE H AV E W E EVE R S AID THAT T HE RE W AS A DUT Y %% --ppTO THE THI RD PAR TY P AR ENT U NDER WHICH YOU ALL EG ED I N T HIS COMPLAINT?

A ND C AN DI D LY I A M N OT %% -- ppAWARE OF ANYWHERE W HERE Y OU HAVE SAID IT AND A S JUS TI CE PARIENTE POINTED OUT THAT' S NOT R EALLY SOMETHING W E H AV E BRIEFED. OFF THE TOP OF MY HEAD I A M NOT A WARE OF IT.

I SAID T HA T , THAT YOU DIDN'T BRIEF IT , BUT THE A MICAS HAVE BRIEF ED I T A ND THE PROBLEM IS IT SOUNDS LIKE WHAT THE F IR ST DIS TR IC T D ID WAS TAK E T HI S V AGUE CAUSE OF ACTIO N I N C OU NT T HREE A ND CON VE RT IT AND SAID, WELL , T HI S I S NEGLIGENT I NTER FERENCE WITH PARENTAL RIGHTS.

YES.

AND MY RES EA RC H D IDN' T REVEAL A NY S TATE I N T HE COU NTRY THA T HAS E VE N %%-- ppDISCUSSED THAT TYPE OF CAUSE OF A CT IO N , A ND S O , A ND Y OU , I 'M SURE , B EI NG T HE G OOD , %% --ppDILIGENT LAWYER YOU ARE, I F YOU HAD SOMET HI NG W HE RE I T WAS ESTABLISHED YOU W OULD HAVE PERHAPS POINTED IT OUT, SO I FEE L LIK E FIRST O F A LL , WE J UF ERNE D ONE STE P F UR TH ER TO SAY - - JUM PED O NE S TE P FUR THER TO SAY T HI S CAUSE O F ACTION ISN'T W HETHER WE A RE GOING TO R ECOGNI ZE N EG LIGENT %%-- ppINTERFERENCE WITH PARENT A T RIGHTS BUT W HE TH ER I N T HIS C ASE ASS UMING THERE I S N O NEGLIGENT DIAGNOSIS , T HE RE IS N O D UT Y T HAT ARISE S , S O I DON'T KNOW HOW YOU S EPARATE IT. IF YOU WANT TO SAY SHE WAS NEGLIGENT IN H ER EVA LU ATIO N AND TREATMENT OF T HE CHILDREN AND IT WAS FOR ESEEABLE BECAUSE OF THA T , BUT YOU ARE SEP AR AT IN G T HOSE TWO THI NGS .

IT S EE MS LIK E C OUNT T HREE IS A DEF AM AT IO N CLA IM WITHOUT THE INTENT REQ UIREMENT .

I GUESS THE ONL Y T HING I CAN S AY IS THA T W HE N I DRAFTED IT, I I NT ENDE D T O %% --ppPLEAD NEGLIGENCE.

NEGLIGENCE WHAT ?

WELL --

BECAUSE THE B ES T A RG UMENT COULD BE THAT THERE IS , YOU KNOW, D EF AMAT IO N HER E BECAUSE SHE'S ACTUALLY S PENT MORE TIME. SHE D IAGNOS ED THEM BUT S HE %% --ppDOESN'T TALK ABOUT THE DIAGNOSIS BUT THEN SAYS T HE CHILDREN REPORTED THE FOLLOWING INC ID ENTS A ND REPORT FOUR OF THESE T HING S AND BUT Y OU ARE N OT A LL EG IN G DEFAMATION, S O I S I T %% --ppNEGLIGENT PUBLICATION O F THE LET TER ?

THE ISSUANCE OF T HE LETTER, YES. IN OTHER WORDS, SHE MADE STATEMENTS THAT SHE JUS T %% --ppWERE UNS UB ST AN TIATE T D A ND UNFOUNDED.

SHE REPORTED IT.

SHE DIDN'T C AL L A ND REPORT IT. SHE DID NOT REPORT I T. %% --pp

THE CHILDREN H AD REP OR TED THE FOLLOWING INCIDENTS. THAT'S WHAT THE LET TE R SAY S. %% --pp

O. THE CHILD RE N HAD REPORTED IT.I'M SORRY. I M IS UNDERSTOOD YOU .

WE SEE DIAGN OS IS B Y DOC TORS R EP OR TI NG O F W HA T THEY SAY IS P ART O F W HAT' S IN THEIR REP OR T . T HE CHILD R EP OR TE D THIS , T HE MOTHER REPORTED THA T. THE HISTORY I S T HIS. I MEAN , T HAT' S WHA T -- > > I N T HO SE TYPES O F CAS ES , JUS TICE PARIENTE, YOU A T LEAST HAVE A QUESTION O F %% --ppFACT. I C OULD IMA GI NE ANY T IME O F %%-- ppPROFESSIONAL LIABI LITY C AS E , YOU KNOW, SHOULD T HE PROFESSIONAL HAVE RELIED O N WHAT THE PERSO N TOLD T HE M?

BUT THAT'S WHERE I COM E BACK TO. I F T HIS WAS PLE D , AS A P ROFESSIONAL LIABILITY CASE, THEN WE W OULD HAVE T O T HI NK THROUGH THAT PROBLEM BUT THAT'S NOT WHAT THIS IS PLE D AS. THIS IS P LED AS SOMET HING THAT I R EALL Y T HI NK I S J US T A C OMMO N N EGLI GENC E ALLEGATION THAT R EA LL Y T HE N W E'VE GOT T O F IG UR E O UT , W ELL , W HERE D OES THI S KIND OF SIT IN O UR LAW O F TOR TS IN FLORIDA, AND THE ONL Y TIME I CAN S EE T HA T W E' VE HAD A CAS E ON INT ER FE RE NC E WITH PARENTAL R IGHT S , W HICH KIND O F I S W HA T J UD GE WEBSTER WAS TALKING ABOUT, WAS WHEN WE ANSWERED THE QUESTION DOWN IN THE 1 1T H CIRCUIT WHICH SAYS IT WAS AN %% -- ppINTENTIONAL I NT ERFERENC E , AND S O WE'VE GOT T O A NSWER THAT QUESTION AS TO WHETHER WE'VE GOT A NEG LI GENT I NTERFERENCE BEFOR E WE C AN EVEN GET TO T HI S QUE ST IO N %% --ppTHA T T ROUBLED THE F IR ST ABOUT WHETHER THERE WAS T HE IMPACT RULE HAD ANY PLA Y .

I G UESS FOR , Y OU K NOW , LACK OF ALT ER NA TI VES A ND T HEN MAYBE THE T HI NG T O D O IS TO REC OGNIZE T HI S A S A VALID CAUSE OF ACT IO N. THE PROBLEM I N T HI S --

THE PRO BL EM W IT H T HA T I S THEN YOU G ET INT O A LL O F THESE O THER KINDS O F SERVICES THAT ARE R ENDE RE D AND OTHER PEOPL E WHO R ENDER OPI NIONS AND S O I N ALL O F T HOSE SITUATIONS ARE W E GOING TO HAVE A CAUSE OF ACTIO N WHEN THE SE PROFESSIONALS RENDER OPINIONS ? A NEG LI GENT C AUSE O F A CTION. THERE MAY BE S OMET HING ELSE THAT YOU CAN P LE AD A S A V ALID CAUSE OF A CT ION , S O NOW WE'RE GOING TO GIV E THEM A N EG LI GE NC E CAU SE O F A CT IO N , %% --ppA ND WHAT WOULD B E A G OO D %% --ppPUBLIC POLICY FOR DOI NG S O ?

F IRST , T HE B ASIC ANS WE R TO YOUR QUESTION IS YES , Y OU DO DO THAT , A ND I G UESS T HE M ORE C OM PLEX P ART OF THE ANSWER IS THA T I T W OULD H AV E TO BE BASED O N THE STA NDAR D OF CARE BY P EO PL E , L IK E PEOPLE IN T HA T P ROFESSION.

YOU KNOW , THE PROBL EM THAT I HAVE IN ADDITION, AND THIS IS R EA LLY M AY BE G OE S T O THE IMPACT RULE , YOU KNOW , WE'RE TALKING A BOUT A ND AGAIN THE STO NE C AS E WHE RE S OMEONE KID NA P PE D T HE CHI LD. H ERE, AS I U ND ERSTAND IT , THIS LETTER W AS TAKEN A ND THERE W AS A DOM ESTI C VIOLENCE I NJUN CT ION O BT AI NED , A TEMPORARY ONE. TEN DAY S A FT ER WARDS , T HE RE IS AN O PP OR TU NITY AND WE KNOW THIS THROUGH THE STATUTES, T O C ON AN E X SPAS PAR TE I N J UN CTIO N. THE RE IS NO A LL EG ATION THAT SHE CAME INTO COURT A ND IFIED TO THE VERACIT Y O F THESE ALLEGATIONS SO THERE IS A P RI MA F ACIE C AS E T HAT T HESE CHILDREN HAVE REPORTE D THESE INCIDENTS . THAT SHOULD BE A CON CE RN T O THE COURT A ND THEN H AV E T HE %%-- ppADVERSARIAL SYSTEM T O DETERMINE IF THEY ARE TRUE OR NOT. HOW D OES S HE GET CAUGHT W ITH WHAT WOULD FLO W F RO M I F I T T OOK T HE COU RT F OR WHA TEVE R REASON, YOU KNOW , M ON TH S T O COME TO THE DEC IS IO N A S T O WHETHER T HIS WAS - - THE SE WERE V ALID ALL EG ATIO NS AGAINST MR. W EL KE R?

THAT I C AN A NSWE R F AIR LY RED ILLY. IT WAS CONSO LI DA TED WITH T HE P OST DISSO LUTI ON C ASE A ND FRANKLY IN D UVAL C OU NT Y T HI S PROBABLY WAS VERY MUCH THE EXCEPTION RATHER THAN T HE RULE THAT THE FAM IL Y LAW J UDGE P ERMITT ED IT T O B E %%-- ppCONSOLIDATED. EFFECTIVELY, THAT WAS A TEMPORARY I NJUN CT IO N T HA T STA YED I N E FF EC T FOR A LL THAT TIME.

T HA T' S NOT A F OR ESEE ABLE TYPE OF DAMAGE. IN OTHER WORDS, YOU ARE SAYING HERE THIS IS M Y BES T JUDGMENT. HERE'S THE LETTER. NOBODY THEN USE S A LET TE R T O D EPRIVE SOMEBODY O F THE IR CHILD FOR CLOSE T O A YEAR. I MEAN, IF T HE C OURT P ROCEEDINGS ACT UA LL Y T HE N THAT'S A DIFFERENT ISSUE AND I DON'T KNOW , I T HINK T HA T F URTHER COM PL IC AT ES T HE IMPACT RULE PART OF T HIS ANALYSIS, THAT IS T HA T THAT'S NOT REALLY A %% --ppFORESEEABLE TYPE OF DAM AG E EVEN THAT THIS W OU LD , Y OU KNOW, J US T L IK E S OMEB OD Y REPORTING THAT THEY ARE CONCERNED THAT THE CHI LD HAS BEEN ABUSE D B EC AU SE T HE Y S EE SOME, YOU KNOW , B ROKE N A RM . IF IT TAK ES T HE SYS TE M A YEAR TO GET I T F ERRE TE D OUT IS THAT THE PROBLEM OF THE PROFESSIONAL OR T HE PROBL EM OF THE SYSTEM?

IN THIS C AS E , I HAV E TWO P OINTS. ONE IS T HA T , AND F RA NK LY I %% --ppD ON'T REMEMBER THE D ET AILS OF THE P RO CE DU RE A T T HE T IM E , BUT M Y R EC OL LE CTION IS T HA T W E, Y OU KNOW, W E N EEDE D ENOUGH TIME T O FIN D OUT W HA T BRINK, THE THERAPI ST , WOULD IFY T O BEF OR E W E HAD A FULL-B LO WN H EA RING. I DO REMEMBER THAT THE FORMER WIFE HAD PRO BLEMS WITH REPRESE NTATION AND T HA T THERE WERE LOTS O F TRI AL S A ND T RIBU LA TION S .

B UT YOU A GR EE THA T N O C OURT IN THE COMPA NY H AS RECOGNIZED A CAUSE OF A CTION LIKE THIS?

FRANKLY I DON 'T K NOW. IN ALL C AN DO R I H AVEN 'T RESEARCHED IT , B EC AU SE W HAT HAPPENED W AS , A ND I T G ET S BACK TO THE G ROUNDS T HAT WERE RAISED BY THE MOTION T O DISMISS. THE GROUNDS IT WAS DIS MISS ED FOR AND THE ISSUES WE R AISE D BEFORE THE FIRST D IS TRICT COURT OF APPEALS.

YOU ARE NOT AWARE OF A NY AUTHORITY FOR RECOGNIZI NG A CAUSE OF ACTION?

I'M NOT AND I D ON'T MEA N THAT IN ANY KIN D O F %% --ppAUTHORITATIVE WAY.

THERE U SED TO B E THE OLD PHRASE PUTTING THE HORSE BEFORE THE COURT , S O WE W IL L NOW H AVE PUTTING T HE %% --ppBUILDING OF THE GOLF C OU RS E BEFORE THE D ECIS IO N. H ERE YOU W OU LD A GREE F OR U S TO PUT A D EC IS ION TOGETHER , WE'VE GOT TO COME T O A T LEAST SAY I F W E ARE N OT GOING TO SAY THERE I SN 'T O NE , THAT THA T H AS T O B E LITIGATED, THAT WE CAN'T ASSUME THERE IS A CAUSE OF ACTION AND R EC OGNI ZE O NE W HICH THE RE - - W HE N THE RE HAS BEEN NO BRI EF ING ON T HIS ISSUE.

FRANKLY T HE D IF FICULTY I HAVE WITH THAT REASONING I S TO SAY THAT EVER Y C AU SE O F ACTION HAS TO H AVE A LABEL AND HAVE A N AM E B EF OR E %% --ppSOMEBODY FILES A C OM PLAI NT AND IF T HA T W ER E THE C AS E W E PROBABLY WOULD BE STUCK WITH , YOU KNOW, THE H ANDF UL - -

I T I SN'T A L ABEL . IT IS ANNAL S IS O F W HE THER OR NOT POLICY REALL Y W OULD FAVOR THE R EC OG NI TION O F A DUTY IN THI S P AR TI CULA R CIRCUMSTANCE AND ALL OF THE QUESTIONS WE'VE ASKED YOU HAVE INVOLVED, YOU K NO W , OTHER SITUATIONS AND J US T HOW E XP ANSIVE , Y OU K NO W , THIS RULE WOULD BE. Y OU H AVE SOMETHING HERE THAT APPEARS THAT IF THE CHI LDREN WERE VISITING A N EI GHBO R O F THE MOTHER AND T HE C HILD RE N RELATED THAT DADDY D ID T HI S OR DADDY DID THA T I N T EX AS OR SOMETHING AND A N EI GHBO R GOES OVER TO THE MOTHER AND SAYS YOU CAN'T L ET THE SE CHILDREN GO BACK TO T HE %%-- ppHUSBAND BECAUSE OF WHAT THEY'VE T OLD ME , A ND THE %% --ppMOTHER GOES AHEAD AND GET S A DOMESTIC VIOLE NC E I NJ UNCT IO N OR WHATEVER. NOW APP ARENTLY YOU W OULD SAY , WELL, WE HAVE A CAUSE OF ACTION AGAINST THAT N EIGH BO R . IN OTHER WORDS, T HIS I S N OT JUST P RO FESS IO NALS O R O THER COUNSELORS BUT ANY BO DY THA T WOULD ACCEP T T HE S TATE ME NT S OF THE C HILD A ND T HE N REP OR T THEM, YOU KNOW , TO T HE A UTHORITIES O R S OMET HING LIKE THAT , BUT I F TH EY W ER E , QUOTE, N EG LI GENT A ND NOT DOING A F ULL- SC AL E , Y OU KNO W , %% --ppVERACITY EXAMINATION.

ACTUALLY I DISAGRE E A ND THE FACT I S I N T HE C OM PL AINT I ALLEGE THAT SHE WAS A LICENSED POLICEMEN TALL HEALTH THERAPIST, T HAT S HE WAS ACTIN G I N A P ROFE SS IONA L CAPACITY WHEN S HE RENDE RE D THIS OPINION SO THAT ISOLATES IT F ROM LAY P EO PL E. SECONDLY YOU GET TO THE F ORESEEABILITY I DE A T HA T , AND I T HINK YOU A LL H AD ASKED ME BEFORE AND I M IGHT HAVE MISSP OKEN A BOUT W HETH ER N EGLIGENCE CLAIMS O R E VE N PROFE SSIONAL LIABILITY CLAIMS WHETHER THERE ARE ANY THIRD PARTY AND F ORESEEABILITY TYPE I SSUE S OR CASES , AND I H AD FORGOTT EN UNTIL JUS T N OW B UT WHEN I ORI GI NALL Y RES EA RCHED THIS WE LOO KE D I NTO T HE WHOLE FIELD OF CASES INVOLVING A CCOUNTANT PROFESSIONAL LIABILITY ANDTHE F OR ES EEAB ILITY OF CONSEQUENCES IN FINANCI AL REPORTS ON THE FAC T THA T THIRD PARTY INVES TO RS W OU LD RELY ON T HOSE .

SO YOU HAVE RES EA RCHED I T BUT YOU HAVE RES EA RC HED I T IN SOM E OTH ER A REA?

ACTUALL Y NOW IT I S C OM IN G BACK TO ME. YES, I DID RESEARCH I T I N SOME OTHER AREA BUT IT WAS FOR THIS CASE AND, NO , I A M NOT AWARE OF A C AS E I N WHI CH A C OU RT H AS R EC OGNI ZE D A N I NTER FERENCE WITH PAR EN TA L RIGHTS ALTHOUGH I'M NOT S O SURE I HAV E R ESEA RCHE D THI S NARROW, NARRO W S UB JECT .

JUSTICE BELL , D ID Y OU HAVE A CLOSING Q UE STION ? OKAY. WITH OUR HELP, YOU HAVE USED UP YOUR T IME A ND Y OU R %% --ppR EBUTTAL TIME, SO WIT H T HA T WE'LL BE IN RECESS U NTIL 9:00 T OM ORROW MOR NING.

PLEASE RIS E .