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Southern Baptist Hospital of Florida4/14/2005
We have for review Welker v. Southern Baptist Hospital of Florida, Inc., 864 So. 2d 1178 (Fla. 1st DCA 2004), in which the First District Court of Appeal certified the following question as a matter of great public importance:
DOES FLORIDA'S IMPACT RULE PRECLUDE THE RECOVERY OF DAMAGES FOR EMOTIONAL INJURIES IN A NEGLIGENCE CASE ALLEGING THAT THE DEFENDANT'S ACTIONS WRONGFULLY CAUSED THE PLAINTIFF TO LOSE CUSTODY OF HIS CHILDREN AND ALL OTHER PARENTAL RIGHTS FOR A SIGNIFICANT PERIOD?
Id. at 1188. We have jurisdiction. Because we have determined that the issue of whether the complaint states a recognized cause of action has never been properly raised, briefed or argued, we decline to address the certified question, which assumes the existence of a valid cause of action. Wefurther decline to address whether count three of the amended complaint constitutes a medical malpractice claim that is subject to the presuit requirements of section 766.106, Florida Statutes (1999).
I. FACTS AND PROCEDURAL HISTORY
The present case arises from a letter that was written by Valerie Brink, a licensed mental health counselor who was employed by Southern Baptist Hospital of Florida, Inc. (Southern Baptist). Jeffrey W. Welker filed a three-count amended complaint against Southern Baptist as a result of this letter. The complaint alleged that on July 20, 1999, Brink wrote a letter in which she diagnosed Welker's two minor children with Post Traumatic Stress Disorder and recommended that Welker's contact with his children cease immediately because such contact was "psychologically harmful" and posed a "serious threat of bodily harm." The letter specifically enumerated multiple events in which the children had claimed acts of physical abuse by Welker toward them and several of Welker's girlfriends. Welker's former wife, Penelope Donham, used Brink's letter to obtain an injunction against domestic violence against Welker that denied Welker legal custody of, visitation with, and access to his children.
Count three of the amended complaint, which is the only count relevant to this case, alleged that Southern Baptist was vicariously liable for Brink's actions in writing the letter without investigating the validity of the statements made in the letter because it was foreseeable that Donham would use the letter to obtain a domestic violence injunction that would result in the suspension of Welker's parental rights. Welker further alleged that as a result of Brink's actions, he suffered mental anguish, humiliation, embarrassment, and the loss of companionship and society of his children, for which he sought compensatory damages. He also sought attorneys' fees and costs resulting from having to defend against the injunction proceedings. Southern Baptist filed a motion to dismiss count three, asserting that dismissal was warranted on several grounds, including that the impact rule precluded recovery because there was no physical impact and that Welker failed to comply with the presuit requirements of section 766.106, which are applicable to medical malpractice claims.
At the hearing on the motion to dismiss, the trial court allowed Welker to amend his complaint to include "interference with parental rights" as an additional element of damages. The trial court then dismissed Welker's complaint with prejudice, without elaborating on its reasoning. Significant to our analysis in this case, Southern Baptist never raised the failure of count three to state a cause of action as a ground for dismissal of the complaint.
On appeal, the First District reversed the dismissal of count three, concluding that the impact rule did notpreclude the recovery of damages for e
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