May 9, 2008

Contact: Eric W. Boyer, Esq.
Managing Partner
305-670-1101 Ext. 1023


Peter J. Molinelli

CLEARWATER, FL – Trial attorneys Peter J. Molinell, a partner in the Tampa office of Quintairos, Prieto, Wood & Boyer, P.A. (QPWB), obtained a complete defense verdict on claims of negligent retention, supervision, and general negligence on behalf of Windmoor Healthcare, Inc., a psychiatric in-patient hospital.
Plaintiff Diane L. Dohms (Dohms), a patient residing on the third floor of a secured unit, instigated a disruption during an elevator ride that was taking in-patients to the facility’s ground floor for a scheduled smoke break. The disturbance began when a Windmoor mental health technician distributed cigarettes and Dohms attempted to snatch a cigarette intended for another patient. Dohms became verbally aggressive towards the technician, repeatedly insisting she had been wrongly accused of stealing cigarettes. As the argument continued, patients progressively became more anxious. By the time the elevator reached the ground floor, the technician determined it would benefit the group if the plaintiff would return to her unit without her smoke break. In preparing to access the secured unit for Dohms’ return, the technician heard a patient yell a warning of Dohms’ race down the hallway towards the elevator. The technician caught up to her, applying minimal restraint to cautiously confine her. The patient did not require medical treatment following the incident. According to an internal investigation, and upon evaluation of the incident report of December 30, 2003, it was concluded that the technician had acted appropriately.
On January 7, 2004, an MRI of Dohms’ shoulder revealed a macerated tear to the left anterior glenoid labrum, and a left sub-acromiol impingement. Several orthopedic surgeons independently determined she was not a candidate for surgery due to pre-existing diagnosis of fibromyalgia. But by the fall of 2005, Dr. Federigos, an orthopedic surgeon obtained by the plaintiff, had performed an arthroscopy of her shoulder joint. His services, subject to payment under a letter of protection, entitled him to approximately $33,000. if the plaintiff was successful in litigation against Windmoor.
In September 2006, Dohms filed suit against Windmoor alleging intentional assault and battery, negligence, and negligent supervision, negligent hiring and negligent retention regarding the technician who restrained her. The defense denied liability for the intentional tort claims. In its timely response, Defendant affirmatively stated that the claim should have been brought as a medical malpractice action pursuant to Florida Statutes Chapter 766, that the statute of limitations had expired, and that the claim was time-barred as a matter of law.
At the trial, Dohms claimed that it was the technician’s poor attitude that caused the attack without any provocation on her part; this was agreed upon by another patient who testified on plaintiff’s behalf. Dr. Federigos testified that Dohms’ injuries were caused by the force applied to restrain the patient; and this was agreed upon by the other physician testimony supporting that any shoulder joint pathology presented itself after the altercation.
Additionally, the plaintiff had produced an account of 13 grievances filed against the technician within a six-month time period pre-dating the subject incident. Ultimately, only five were admitted, but these made the jury acutely aware of the numerous complaints which described the technician’s demeanor as rude, inhumane, intimidating, and lacking in compassion.
In its defense, Windmoor called an expert psychiatrist, who testified that the restraint used by the technician met the standard of care, and an orthopedic surgeon who testified that the glenolabral tear was the result of degeneration, and that it pre-dated the incident; additionally, the orthopedist testified that the mechanism of injury PPlaintiff described could not have caused the tear or the shoulder impingement. The defense also called the two technicians who escorted the Dohms to the secured unit on December 30, 2003.
The Court entered directed verdict in favor of the hospital as to the intentional torts of assault and battery. After deliberating for approximately 39 minutes, the jury returned a complete defense verdict in favor of Windmoor on the remaining counts of negligence, negligent retention and negligent supervision.
Quintairos, Prieto, Wood & Boyer, P.A., is a civil defense firm with a wide variety of litigation services for healthcare companies, healthcare facilities, physicians and other healthcare licensed professionals and their insurers. The firm’s Litigation Department also provides general liability defense for all businesses, insureds and insurance companies. Our practice groups and industry-based teams ensure clients have access to attorneys with the best expertise, regardless of location. QPWB maintains a tightly integrated network of six fully staffed offices throughout Florida with attorneys licensed in several states.

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