author: PARIENTE, J. POLSTON, J.,

text:
    Simon DOCKSWELL, et al., Petitioners, v. BETHESDA MEMORIAL HOSPITAL, INC., etc., Respondent.
    No. SC15-2294
    Supreme Court of Florida.
    [January 26, 2017]

      Geoffrey Bennett Marks of Billbrough & Marks, P.A., Coral Gables, Florida, for Petitioners
    William T. Viergever of Sonneborn Rut-ter Cooney Viergever Burt & Lury, P.A., West Palm Beach, Florida, for Respondent
    Roy D. Wasson of Wasson & Associates, Chartered, Miami, Florida, for Amicus Curiae Florida Justice Association
   PARIENTE, J.

The issue presented involves the interpretation of section 766.102(3)(b), Florida Statutes (2011) (the foreign-body presumption of negligence)—specifically whether, in a medical malpractice case involving a foreign body left inside a patient’s body, the burden of proof shifts to the defendant to prove that no medical negligence occurred.

The foreign-body presumption of negligence set forth in section 766.102(3)(b) provides:

[T]he discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

(Emphasis added.)

In Dockswell v. Bethesda Memorial Hospital, Inc., 177 So.3d 270 (Fla. 4th DCA 2015), the Fourth District determined that when direct evidence of negligence exists, the plaintiff is not entitled to the statutory presumption arising from section 766.102(3)(b). We have jurisdiction based on express and direct conflict with Kenyon v. Miller, 756 So.2d 133 (Fla. 3d DCA 2000). See art. V, § 3(b)(3), Fla. Const.

After analyzing the statute and relevant case law, we conclude, consistent with the analysis of Judge Conner’s dissent in Dockswell, that the foreign-body presumption of negligence set forth in section 766.102(3)(b) is mandatory when a foreign body is found inside the patient’s body, regardless of whether direct evidence exists of negligence or who the responsible party is for the foreign body’s presence. Accordingly, for the reasons more fully explained below, we quash the decision of the Fourth District Court of Appeal.

BACKGROUND

On April 29, 2011, Simon Dockswell was admitted to Respondent’s Bethesda Memorial Hospital for a “colon resection due to cancerous polyps.” As part of the procedure, surgeon George Mueller, M.D., inserted a drainage tube into Mr. Docks-well’s abdominal cavity “to evacuate the fluid postoperatively.” Drainage tubes of this sort are usually removed after surgery at the direction of the physician.

In preparation for Simon Dockswell’s discharge a few days after surgery, a nurse removed the drainage tube. Evidence identifies Nurse Porges as the nurse who removed the drainage tube. Mrs. Dockswell was present in Mr. Dockswell’s hospital room while the nurse removed the drainage tube. Testimony revealed that it was questionable whether Dr. Mueller actually instructed that the drainage tube be removed. Nevertheless, during the drainage tube removal, “Mr. Dockswell experienced no immediate discomfort, but a 4.25-inch section of the tube was unknowingly left inside him.” Dockswell, 177 So.3d at 271 (emphasis added). It is undisputed that the drainage tube was left inside Mr. Dockswell through no fault of his own.

Mr. Dockswell was discharged from Bethesda Memorial Hospital’s facility on May 3, 2011. The Fourth District explained the subsequent facts as follows:

Approximately four months later, after Mr. Dockswell experienced continuing pain in the region, a CT scan revealed that a portion of the drain remained in his body. A second surgery was performed to remove the remaining piece of the drain.
The Dockswells filed suit against the hospital alleging, among other claims, that 1) the tube was negligently removed with excessive speed and force, and 2) the nurse negligently failed to inspect the drainage tube to ensure that it was removed entirely, which resulted in the tube fragment being overlooked ....
At the charge conference, the Dock-swells sought a jury instruction establishing a presumption of negligence against the hospital because of the presence of the tube fragment.

Dockswell, 177 So.3d at 271.

At trial, the Dockswells requested Florida Standard Jury Instruction 402.4c, which states:

[Negligence is the failure to use reasonable care.] The presence of (name of foreign body) in (patient’s) body establishes negligence unless (defendants)) prove(s) by the greater weight of the evidence that [he] [she] [it] was not negligent.

Bethesda Memorial Hospital opposed the Dockswells’ request, arguing “that the presumption of negligence does not apply in instances where the plaintiff is aware of and has evidence of the culpable party.” Dockswell, 177 So.3d at 271.

The parties also disputed whether Florida Standard Jury Instruction 402.4c (“Instruction 402.4c”) applied to both of the Dockswells’ theories of negligence—negligent removal and negligent inspection—or only to the theory of negligent inspection. See id. at 271-72. The Dockswells argued that Instruction 402.4c was equally applicable to both of their theories under the common claim of negligence, specifically that their action arose from medical malpractice. Bethesda Memorial Hospital argued “that the foreign body instruction is inapplicable to the first of the Dockswells’ two claims ... since the instruction ... would be applicable only as to the nurse’s alleged failure to inspect which then resulted in the tube being left behind for a later medical discovery.” Id. at 271.

The trial court ultimately denied the Dockswells’ request for Instruction 402.4c, reasoning that the Dockswells’ ability to identify Nurse Porges as the person who removed the drainage tube rendered the Instruction inapplicable. Further, the trial court reasoned that “the word ‘discovery’ in section 766.102[ (3)(b) ] (and thus the instruction) suggests a situation where a patient is uncertain as to where responsibility for negligence lies.” Id. at 272. Because the trial court determined that the foreign-body presumption was inapplicable, over the Dockswells’ objection, it used a nonstandard jury instruction, requested by Bethesda Memorial Hospital, which provided:

The existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately cause[d] by a breach of the prevailing professional standard of care by the health care provider.

The verdict form instructed the jury to first determine whether “there was negligence on the part of BETHESDA MEMORIAL, INC. which was a legal cause of loss, injury or damage to SIMON DOCKS-WELL.” The jury answered this question in the negative. Because the jury answered this first question in the negative, it was instructed to proceed no further and sign the jury verdict form. Accordingly, the jury returned a verdict for Bethesda Memorial Hospital, and the trial court entered judgment consistent with the verdict. The trial court denied the Dockswells’ Motion for New Trial and Supplemental Motion for New Trial after a hearing on the parties’ arguments regarding the applicability of Instruction 402.4c.

The Dockswells appealed to the Fourth District, arguing that the discovery of the drainage tube fragment inside Mr. Docks-well entitled them to Instruction 402.4c, which would have created a presumption of negligence and shifted the burden to Bethesda Memorial Hospital to disprove liability. Dockswell, 177 So.3d at 274. The Fourth District rejected the Dockswells’ argument, agreeing with the trial court that the foreign-body presumption in section 766.102(3)(b) and, thus, Instruction 402.4c were inapplicable.

The Fourth District first stated that “the statute is a codification of the doctrine of res ipsa loquitur in the medical negligence context.” Id. at 272. The Fourth District then determined that “[t]here were no genuine doubts surrounding the identity of the allegedly culpable party or the events that led to the [drainage] tube being left inside of Mr. Dockswell by the time th[e] case went to trial” because (1) the Dockswells “were able to present direct evidence of negligence,” (2) Mr. Dockswell was conscious while the nurse removed the drain, and (3) Mrs. Dockswell was present during the removal. Id at 273. Thus, the Fourth District concluded that the foreign-body presumption of negligence and Instruction 402.4c “w[ere] not necessary to allow the jury to resolve the issues in the case.” Id.

Judge Conner dissented, arguing that the majority improperly analyzed whether res ipsa loquitur applied, as opposed to the Dockswells’ entitlement to the statutory foreign-body presumption. Id. at 274 (Conner, J,, dissenting). He explained that there were legal distinctions between the foreign-body presumption and res ipsa lo-quitur that the majority ignored. Id. Because a foreign body was left in Mr. Dockswell, Judge Conner concluded that the Dockswells were, in fact, entitled to the benefit of the statutory presumption and that it was error for the trial court not to give Instruction 402.4c.

The Dockswells petitioned for review, and this Court accepted jurisdiction based on express and direct conflict between the Fourth District’s decision in this case and the Third District’s decision in Kenyon.

ANALYSIS

The issue in this case involves the interpretation of the foreign-body presumption, as codified in section 766.102(3)(b), specifically whether, in a medical malpractice case involving a foreign body left in a patient, the burden of proof shifts to the defendant to prove that no medical negligence occurred. We conclude that, unlike the common law doctrine of res ipsa where direct evidence of negligence may defeat its application, the only prerequisite to applying the foreign-body presumption and Instruction 402.4c is the “discovery of the presence of a foreign bod/’ in the patient’s body. § 766.102(3)(b), Fla. Stat.

We begin with an explanation of section 766.102(3)(b) and part of the medical malpractice statutory scheme and then distinguish the statutory foreign-body exception from the common law doctrine of res ipsa loquitur. Turning to this case, we conclude that the presence of the drainage tube fragment in Mr. Dockswell’s body following discharge from Bethesda Memorial Hospital entitled the Dockswells to the benefit of the foreign-body presumption in section 766.102(3)(b) and Instruction 402.4c. We also conclude that the failure to give Instruction 402.4c as well as the trial court’s giving of a nonstandard instruction cannot be considered harmless error.

II. Section 766.102(3)(b) (the Foreign-Body Presumption of Negligence)

Over the years, the Legislature has restricted plaintiffs’ ability to bring medical malpractice claims, including through the addition of a presuit process, with the requirement that plaintiffs secure the testimony of experts in the same or a similar medical area, The foreign-body presumption of negligence, however, has survived throughout the legislative amendments restricting the ability of medical malpractice plaintiffs to bring claims.

Because determining the applicability of section 766.102(3)(b) involves an issue of statutory interpretation, our review is de novo. Bay Cty. v. Town of Cedar Grove, 992 So.2d 164, 167 (Fla. 2008). “Our guiding principle when construing a statute is to ‘effectuate the intent of the Legislature.’” State v. Weeks, 202 So.3d 1, 7 (Fla. 2016) (qouting Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla. 2006)). “[LJegislative intent is determined primarily from the statute’s text.” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla. 2007).

We thus review the statute’s text to determine if the limitation placed on it by the trial court and the Fourth District— that a plaintiff is entitled to the foreign-body presumption of negligence only in the absence of direct evidence of negligence— is consistent with the actual language of the statute. We turn first to the text of section 766.102, Florida Statutes, which provides both for the general proposition that in medical negligence cases the plaintiff bears the burden of proof of medical negligence and specifies in detail what the plaintiff must prove:

(1) In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
(2)(a) If the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider.

§ 766.102, Fla. Stat. (2016) (emphasis added).

The Legislature then sets forth the specific exception for foreign bodies:

(3) ....
(b) The existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately caused by a breach of the prevailing professional standard of care by the health care provider. ... However, the discovery of the presence of a foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.

Id. (emphasis added).

Subsection (3)(b) states that foreign-body cases are a class of medical malpractice cases in which the Legislature has given a singular benefit to plaintiffs. See id. § 766.102(3)(b) (2016). Under the plain language of the statute, specifically the first sentence of section 766.102(3)(b), the burden in ordinary medical malpractice suits lies with the plaintiff to prove that the defendant was negligent, or breached “the prevailing professional standard of care for that health care provider.” Id. § 766.102(1); accord id. § 766.102 (3)(b). However, the third sentence of subsection (3)(b) provides that the burden shifts upon the “discovery” of a foreign body, which constitutes “prima facie evidence of negligence on the part of the health care provider.” Id.

If there is any issue in interpreting the Legislature’s intent for the third sentence of section 766.102(3)(b), it turns on the use of the word “discovery,” which is what triggers the application of the foreign-body presumption and the accompanying Instruction 402.4c. “In ascertaining the plain meaning of statutory language, consulting dictionary definitions is appropriate.” Weeks, 202 So.3d at 7 (citing License Acquisitions, LLC v. Debary Real Estate Holdings, LLC, 155 So.3d 1137, 1144 (Fla. 2014)). Hence, Judge Conner appropriately used the dictionary definition of the word “discovery” to determine the trigger for applying the foreign-body presumption in subsection (3)(b):

“[Djiseovery,” ... simply connotes that the foreign body remaining in the patient’s body was an unintended consequence of the medical procedure. According to Webster’s dictionary, “discovery” means “the act or process of discovering.” Merriam-Webster’s Seventh New Collegiate Dictionary (1969). To “discover” means “to obtain sight or knowledge of for the first time.” Id. According to Webster’s, a synonym for “discover” is “unearth,” which “implies bringing to light something forgotten or hidden.” Id.
I contend the last sentence of section 766.102(3)(b) is a recognition by the legislature that the first sentence of the section places too onerous a burden on the claimant to show a breach of the standard of care, when the universe of explanations for why a foreign body remained includes doctor error, nurse error, and product defect.

Dockswell, 177 So.3d at 275-76 (Conner, J., dissenting). We conclude that Judge Conner’s interpretation of “discovery” is correct: when it is determined that a foreign body improperly exists inside a patient, a presumption of negligence has been established.

We next address the effect, if any, of other evidence or knowledge of the identity of the specific actor responsible for leaving the foreign body may have on the applicability of the foreign-body presumption in section 766.102(3)(b). Reviewing the statutory text, there is absolutely no indication that a litigant must prove, in addition to the presence of the foreign body, the absence of direct evidence of how the foreign body was left in the patient for the foreign-body presumption to apply. Rather, as Judge Conner’s dissent explained, “If a set of facts entitles one to a legal determination that prima facie evidence of negligence is established, additional affirmative evidence of negligence does not erase the prima facie determination.” Id. at 277. Further:

The first sentence of section 766.102(3)(b) codifies the principle that a medical injury does not create any inference or presumption of negligence by a health care provider. ... The last sentence of section 766.102(3)(b) provides an exception to the general rule established by the first sentence. The last sentence provides, in essence, that if a medical procedure has the unintended result of leaving a foreign body in the patient’s body after the procedure is completed, that fact alone is prima facie evidence of negligence on the part of the health care provider.

Id. at 275 (some emphasis added) (footnote omitted). Likewise, Judge Conner noted the absence of language limiting the application of the presumption:

In recognizing that the legislature codified an important exception relating to foreign bodies, our supreme court adopted ,.. Instruction (Civil) 402.4c .... [T]he trial court agreed, that standard instruction 402.4e was only applicable to a theory of liability in which the claimant had no knowledge or proof of how or why the drainage tube broke. ... But if the legislature intended the statute to apply the way the trial court construed it, the legislature could have simply said that if an unintended foreign body remains after a medical procedure and the claimant cannot prove why or how it happened, then the fact the foreign body remained is prima facie evidence of negligence by the medical provider.

Id. (some emphasis added).

As Judge Conner explained, when a foreign body is found, or discovered, a presumption of negligence on the part of the health care provider is established. At that point, the burden lies with the health care provider to explain how the foreign body was left inside the patient as a result of some factor other than his or her negligence. This interpretation of the statute is consistent with the Fourth District’s earlier decision in Castillo v. Visual Health & Surgical Ctr., Inc., 972 So.2d 254 (Fla. 4th DCA 2008). In Castillo, the trial court applied section 766.102(3) and denied a directed verdict for the patient. The Fourth District affirmed, stating:

Section 766.102(3) provides that “the discovery of the presence of a foreign body, such as a sponge ... or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence on the part of the health care provider.”
The parties have not cited, nor has our own research revealed any Florida case law interpreting section 766.102(3), Florida Statutes. We agree ... that the burden, when shifted to the defendants], cannot be met by pure speculation and conjecture. ... The jury is free to accept or reject any of this testimony. The trial court did not err in making it a jury question as to whether the defense met their burden in overcoming the presumption created by section 766.102(3), Florida Statutes.
[W]e affirm as the trial court did not err in making it a jury question as to whether the defense met their burden in overcoming the presumption created by section 766.102(3), Florida Statutes.

Id. at 256-67 (emphasis added).

Rather than a tool to help the jury determine the appropriate outcome in the case only when needed, the text of the statute indicates that the foreign-body presumption shifts the burden to health care providers to prove that they were not negligent in treating the patient. Likewise, Instruction 402.4c, derived from section 766.102(3) and adopted by this Court in 2010, states:

[Negligence is the failure to use reasonable care.] The presence of (name of foreign body) in (patient’s) body establishes negligence unless (defendant(s)) prove(s) by the greater weight of the evidence that [he] [she] [it] was not negligent.

Fla. Std. Jury Instr. (Civ.) 402.4c; In re Std. Jury Instrs. in Civil Cases—Report No. 09-01 (Reorganization of the Civil Jury Instrs.), 35 So.3d 666 (Fla. 2010) (adopting Florida Standard Jury Instruction 402.4c).

As we explained when we adopted Instruction 402.4c, “Instruction 402.4c substitutes plain English for the language in former instruction 4.2 pertaining to a claim for medical negligence, based upon the presence of a foreign object in a patient’s body.” Std. Jury Instrs. in Civil Cases-Report No. 09-01, 35 So.3d at 670. Further, the Notes on Use for Instruction 402.4c state:

1. This instruction is derived from F.S. 766.102(3). The statute uses the term “prima facie evidence of negligence.” The committee recommends that term not be used as not helpful to a jury. Rather, the committee has used the definition of prima facie. See, e.g., State v. Kahler, 232 So.2d 166, 168 (Fla. 1970) (“prima facie” means “evidence sufficient to establish a fact unless and until rebutted”).
2. Before this instruction is given, the court must make a finding that the foreign body is one that meets the statutory definition. See Kenyon v. Miller, 756 So.2d 133 (Fla. 3d DCA 2000).

Id. at 705.

Thus, under the plain language of the statute and the Notes on Use of Instruction 402.4c, the existence of a foreign body invokes the statutory presumption of negligence in section 766.102(3)(b), entitling the plaintiff to the benefit of Instruction 402.4c, regardless of the evidence available to either party. Because the trial court refused to give Instruction 402.4c, concluding that it was not “necessary,” and the Fourth District conflated the common law doctrine of res ipsa loquitur with the statutory foreign-body presumption, we now turn to an explanation of the distinction between the foreign-body presumption and the common law doctrine of res ipsa loqui-tur.

II. Differences Between Section 766.102(3)(b) and Common Law Res Ipsa Loquitur

We conclude that the Fourth District made a foundational error when it stated that the statutory foreign-body presumption “is a codification of the doctrine of res ipsa loquitur in the medical negligence context.” Dockswell, 177 So.3d at 272. Res ipsa loquitur is a part of the common law on negligence and functions as a rule of evidence under which plaintiffs initial burden is met when res ipsa loquitur is applied. In Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla. 1978), this Court explained the common law doctrine of res ipsa loquitur:

Res ipsa loquitur “the thing speaks for itself’ is a doctrine of extremely limited applicability. It provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence is wanting, provided certain elements consistent with negligent behavior are present. Essentially, the injured plaintiff must establish that the instrumentality causing his or her injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control. ...
Plainly, the threshold inquiry is whether that which occurred is a phenomenon which does not- ordinarily happen except in the absence of due care. The initial burden is on the plaintiff to establish that the circumstances attendant to the injury are such that, in the light of past experience, negligence is the probable cause and the defendant is the probable actor. An injury standing alone, of course, ordinarily does not indicate negligence. The doctrine of res ipsa loquitur simply recognizes that in rare instances an injury may permit an inference of negligence if coupled with a sufficient showing of its immediate, precipitating cause.

Id. at 1341-42 (emphasis added) (footnotes omitted).

A classic example of res ipsa loquitur is a heavy object falling from an elevated position and causing damage. In that situation, where it is clear that the object would not have fallen absent negligence, res ipsa directs that even if the injured party may not be able to explain how or why the object fell, the plaintiff is entitled to a presumption of negligence despite the lack of evidence. As we explained in Goodyear Tire, to establish that res ipsa is appropriate, a plaintiff must show that, although there is no direct evidence of negligence, the instrumentality that caused the injury was in the exclusive control of the defendant, and the injury would not have happened absent negligence. 358 So.2d at 1341-42.

One form of negligence, of course, is medical malpractice, in which an injured party sues a health care provider for breaching the duty of care owed by that professional to the patient, causing injury or death.

Before the foreign-body presumption, which was first enacted in 1985, this Court endeavored to apply res ipsa to medical malpractice cases; but, in fact, it appears to have applied negligence per se. For example, in South Florida Hospital Corp. v. McCrea, 118 So.2d 25, 26 (Fla. 1960), South Florida Hospital sought this Court’s review of a jury verdict and judgment for McCrea for an injury sustained during surgery. On appeal, South Florida Hospital argued that it was inappropriate for the trial court to instruct the jury on res ipsa loquitur. Id. at 27. Discharging a writ of certiorari for lack of jurisdiction due to an absence of conflict, this Court explained:

A plaintiff is not precluded from resorting to the doctrine of res ipsa loqui-tur merely because he introduces evidence of specific negligence attributable to the defendant.
This expression of the stated point or principle of law necessarily is based upon an assumption that the doctrine of res ipsa loquitur would unquestionably apply if the plaintiff had not offered or introduced evidence of specific acts or omissions in an effort to prove the issue of actionable negligence of the defendant.

Id. at 28. The McCrea Court went on to explain that case law is split on the type and amount of evidence that precludes appropriate application of res ipsa, resolving that “the majority rule seems to be that the introduction of evidence of specific negligence which does not clearly establish the precise cause of the injury, will not preclude reliance on the otherwise-applicable res ipsa doctrine.” Id. at 29. Elaborating on precedent, the McCrea Court stated that the universal rule is “that ‘there is no need or room for the operation of any inference or presumption under the res ipsa loquitur doctrine where the evidence ... reveals all of the facts and circumstances surrounding the occurrence in suit and clearly establishes the precise cause of plaintiffs injury.’” Id. at 30. This Court affirmed that “Florida [is] among those jurisdictions which hold that the plaintiff may, in a proper case, resort to both evidence of specific negligence and to the inferences and presumptions of the doctrine of res ipsa.” Id. at 29. Thus, the Fourth District’s holding in Dockswell that available evidence and Instruction 402.4c are mutually exclusive was inconsistent with this Court’s holding in McCrea.

Similarly, in Marrero v. Goldsmith, 486 So.2d 530 (Fla. 1986), this Court accepted jurisdiction due to express and direct conflict between the Third District Court of Appeal’s decision and this Court’s opinion in McCrea. In Marrero, the plaintiff experienced complications unrelated to treatment following surgery during which she was unconscious. Id. at 531. Under the facts, this Court “allow[ed] the plaintiff to go to the jury with the benefit of a res ipsa loquitur instruction,” id. at 533, stating:

If a case is a proper res ipsa case in other respects, the presence of some direct evidence of negligence should not deprive the plaintiff of the res ipsa inference. There comes a point, however, when a plaintiff can introduce enough direct evidence of negligence to dispel the need for the inference.

Id. at 532. The Marrero Court found instructive the California Supreme Court’s reasoning in the landmark case of Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 690 (1944), which held:

The control at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant or of his employees or temporary servants. This, we think, places upon them the burden of initial explanation.

The bottom line of the common law on res ipsa loquitur is that evidence of negligence may cause the presumption to “vanish,” although that is not necessarily how this Court has applied the doctrine in medical negligence cases. Nevertheless, traditional res ipsa loquitur case law stands for the proposition that before res ipsa loqui-tur may be applied, the plaintiff must make requisite showings of the defendant’s control of the object and that negligence was the cause of the injury. Res ipsa loqui-tur is defeated only when the plaintiffs evidence, on its own, establishes each element of negligence. This is logically sound because if the evidence is sufficient to present a prima facie case of negligence, the presumption of res ipsa is moot.

We now turn to foreign-body law, a specific subset of medical malpractice cases, which concern those cases where a foreign body is unintentionally left inside the body of a patient. Judge Conner discussed the origins of the foreign-body presumption in his dissent in Dockswell:

[T]he last sentence of section 766.102(3)(b) codifies and expands “the Zeagler Rule” espoused in our case law during the 1930’s in Smith v. Zeagler, 116 Fla. 628, 157 So. 328 (1934). In Zeagler, our supreme court said that “[t]he burden of showing due care is upon a surgeon who leaves a sponge inclosed [sic] in a wound after the performance of an operation.” Id. at 329. The court went on to hold that leaving a sponge inside the patient during the surgery process was negligence per se. Id. (“The authorities are legion to the effect that it is negligence per se for a surgeon to leave a sponge in an abdominal incision made in his patient in the course of his performance of a surgical operation upon such patient.”) (citations omitted).

177 So.3d at 275-76 (Conner, J., dissenting). Therefore, different from common law res ipsa loquitur, the statutory foreign-body presumption is one that provides plaintiffs with a presumption of negligence even if direct evidence of negligence exists.

Thus, we conclude that the comparison between foreign-body law—specifically section 766.102(3)(b) and Instruction 402.4c—and res ipsa begins and ends with their effect: imposing a prima facie case of negligence and shifting the burden to the defendant. As to the effect of the foreign-body presumption, specifically that “prima facie evidence” is established, we conclude that as interpreted above, the foreign-body presumption is a mandatory presumption, which “tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.” State v. Rolle, 560 So.2d 1154, 1156 (Fla. 1990) (alteration in original) (quoting Cty. Court v. Allen, 442 U.S. at 157, 99 S.Ct. 2213). “A mandatory presumption may be either irrebuttable or rebuttable. ... The fact finder, however, is not free to reject the presumption.” Ibarrondo v. State, 1 So.3d 226, 233 (Fla. 5th DCA 2008). In other words, the foreign-body presumption is mandatory when applicable but rebuttable by the opponent.

In conclusion, the contexts in which the foreign-body presumption and res ipsa lo-quitur are applied make the two completely distinguishable. In the conflict case, Kenyon, the Third District correctly distinguished between res ipsa loquitur and the foreign-body presumption. 756 So.2d at 137. The Kenyon court explained that the presence of a “foreign body,” such as surgical paraphernalia, is prima facie evidence of negligence, but the foreign-body presumption is “clearly inapplicable in a case such as this where the [foreign body] was intentionally placed in [the plaintiffs] body as part of her treatment, and like screws, plates, pacemakers, and/or artificial joints was intended to permanently remain in her body.” Id. Thus, Kenyon makes clear that the foreign-body presumption applies when “surgical paraphernalia” is unintentionally placed in the patient. Id. In fact, Instruction 402.4c cites Kenyon for that proposition. In re Std. Jury Instrs., 35 So.3d at 675 (adopting Instr. 402.4c). Thus, the application of the foreign-body presumption is mandatory when a foreign body exists, in direct contrast to the prerequisites for applying res ipsa loquitur in ordinary negligence cases.

THIS CASE

In this case, the drainage tube fragment left inside Mr. Dockswell’s body was “discovered]” after Mr. Dockswell had a post-operative CT scan, which his physician ordered after Mr. Dockswell complained of lingering pain in his abdomen. Although the trial court erroneously relied on the Dockswells’ ability to identify Nurse Porges as the one who removed the drainage tube post-operatively as a basis for not instructing on the statutory foreign-body presumption, the evidence did not establish that the Dockswells knew when the drainage tube broke, how it broke, or who was responsible for it breaking. Contrary to the Fourth District’s and trial court’s conclusions that sufficient direct evidence existed to negate the applicability of section 766.102(3)(b) and Instruction 402,4c, the Dockswells’ alternative theories of how the drainage tube fragment remained in Mr. Doekswell’s body show that uncertainty existed as to how the fragment was actually left inside of his body.

Notwithstanding whether the trial court or Fourth District were correct to conclude that direct evidence of negligence existed, it is clear that the drainage tube fragment was not intended to remain in Mr. Dockswell and was, therefore, a foreign body within the meaning of section 766.102(3)(b). And the injuries caused by its existence were not within the scope of treatment. See Kenyon, 756 So.2d at 136-37; Borghese v. Bartley, 402 So.2d 475, 475 (Fla. 1st DCA 1981) . Therefore, as we explained above, the foreign-body presumption and Instruction 402.4c were applicable to the Dockswells’ case as a mandatory presumption, unavoidable by evidence. Thus, the jury should have been instructed to determine whether Bethesda Memorial Hospital sufficiently refuted the presumption of negligence, as provided by section 766.102(3)(b). Considering the trial court’s failure to properly place the burden on Bethesda Memorial Hospital to disprove negligence and the verdict at trial in the hospital’s favor, we conclude that harmful error occurred and that Bethesda Memorial Hospital cannot establish that there is no reasonable possibility that the failure to give the jury instruction on the statutory foreign-body presumption of negligence contributed to the defense verdict. See Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014).

Further compounding the harmful error, the trial court gave a nonstandard and misleading jury instruction, which stated:

The existence of a medical injury does not create any inference or presumption of negligence against a health care provider, and the claimant must maintain the burden of proving that an injury was proximately cause[d] by a breach of the prevailing professional standard of care by the health care provider.

In Gross v. Lyons, 721 So.2d 304 (Fla. 4th DCA 1998), the Fourth District Court of Appeal stated, “Reversible error occurs when an instruction is not only an erroneous or incomplete statement of the law, but is also confusing or misleading.” Id. at 306; see Holman Live Stock Co. v. Louisville & N.R. Co., 81 Fla. 194, 87 So. 750, 752 (1921); Wadman v. State, 750 So.2d 655, 656 (Fla. 4th DCA 1999). At trial, the Dockswells objected to the nonstandard jury instruction, which instructed the jury in the negative: that they were not to presume negligence by the fact that a foreign body was unintentionally left inside Mr. Dockswell. This nonstandard instruction provides a separate basis for i’eversal because it misled the jury by instructing them on a negative and was potentially inconsistent with the standard jury instructions on negligence. Bethesda Memorial Hospital cannot establish that there is no reasonable possibility that this error was harmless. Accordingly, for the reasons stated, we conclude that the Dockswells are entitled to a new trial.

CONCLUSION

For the reasons explained above, the foreign-body presumption of negligence in section 766.102(3)(b), Florida Statutes, as set forth in Florida Standard Jury Instruction 402.4c, establishing a presumption of negligence and shifting the burden to the defendant when a foreign body is discovered inside a patient, was applicable to the Dockswells when they proved that a drainage tube fragment improperly remained inside Mr. Dockswell Further, the nonstandard jury instruction given at trial, omitting the second portion of section 766.102(3)(b), was misleading and, thus, separately constituted reversible error. Accordingly, we approve of the Third District’s decision in Kenyon v. Miller, 756 So.2d 133 (Fla. 3d DCA 2000), quash the Fourth District’s decision in Dockswell, and remand with instructions that a new trial be ordered in which the Dockswells receive the benefit of the foreign-body presumption of negligence in section 766.102(3)(b) as set forth in Florida Standard Jury Instruction 402.4c.

It is so ordered.

LABARGA, C.J., and LEWIS, and QUINCE, JJ., and PERRY, Senior Justice, concur.

POLSTON, J., dissents with an opinion, in which CANADY, J., concurs.

POLSTON, J.,

dissenting.

Because the Fourth District’s decision in Dockswell v. Bethesda Memorial Hospital, Inc., 177 So.3d 270 (Fla. 4th DCA 2015), does not expressly and directly conflict with the Third District’s decision in Kenyon v. Miller, 756 So.2d 133 (Fla. 3d DCA 2000), on the same question of law, this Court does not have the constitutional authority to review this case. See art. V, § 3(b)(3), Fla. Const.

Both district courts determined that foreign-body instructions were not warranted given the circumstances of the cases they were deciding. Specifically, in Dockswell, 177 So.3d at 273-74, the Fourth District determined that the foreign-body instruction was “neither necessary to enable the jury to resolve the issues in the case nor supported by the facts of the case” because there was “direct evidence of negligence,” “[tjhere were no genuine doubts surrounding the identity of the allegedly culpable party or the events,” and “[t]he use of the foreign body jury instruction would have improperly permitted the jury to disregard the conflicting testimony of the experts.” In Kenyon, 756 So.2d at 137, the Third District determined that the foreign-body instruction was inapplicable because the foreign body left behind “was intentionally placed in Miller’s body as part of her treatment, and like screws, plates, pacemakers, and/or artificial joints was intended to permanently remain in her body.” These two holdings regarding the impropriety of the foreign-body instruction in two distinct situations do not conflict.

The fact that the Third District in Kenyon also separately addressed whether a different, res ipsa loquitur instruction should also have been given does not create conflict because the Fourth District in Dockswell never addressed whether the separate res ipsa instruction should have been given. The only instruction that both districts addressed was the foreign-body instruction. And the districts’ holdings regarding the foreign-body instruction do not conflict even though the Fourth District in Dockswell incorporated some of the Third District’s reasoning regarding the res ipsa instruction into its own analysis of the foreign-body instruction.

Accordingly, because the two decisions do not conflict on the same question of law, this Court is without jurisdiction to review this case. I respectfully dissent.

CANADY, J., concurs.

      . We use "presumption” throughout to characterize section 766.102(3)(b), Florida Statutes, even though the statutory language provides for "prima facie evidence” because, as we explained in State v. Rolle, 560 So.2d 1154 (Fla. 1990), when prima facie evidence of an elemental fact exists based on the existence of a basic fact, a presumption exists, shifting the burden of proof. Id at 1156 (quoting Cty. Court v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979)); accord Francis v. Franklin, 471 U.S. 307, 314-15, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Turner v. United States, 396 U.S. 398, 423, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).

      . In 1985, the Legislature implemented a "complex presuit investigation” before a medical malpractice case could even be filed pursuant to chapter 766, Florida Statutes. Ch. 85-175, Laws of Fla.; see § 768.57, Fla. Stat. (1985); see also Kukral v. Mekras, 679 So.2d 278, 280-81 (Fla. 1996). In 1988, these pre-suit procedures were recodified at chapter 766, Florida Statutes. Unlike the law applicable to other, general negligence cases, chapter 766 precludes the filing of a medical negligence action "unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.” § 766.104(1), Fla. Stat. (2016). It also provides that "good faith” may be shown if the claimant or his counsel has received a written opinion of an expert "that there appears to be evidence of medical negligence.” Id. (citing § 766.102, Fla. Stat. (2016) (defining "expert”)).
      Further, the statute defines "investigation” in this context to mean "that an attorney has reviewed the case against each and every potential defendant” and has consulted with and obtained a written opinion from a medical expert. Id. § 766.202(5). After completing the statutory presuit investigation, but prior to filing a claim for medical malpractice, the claimant must also notify each prospective defendant "of intent to initiate medical malpractice litigation.” Id. § 766.203(3).
      In 2013, the Florida Legislature passed the Florida Medical Malpractice Act, ch. 2013-108, Laws of Fla., which placed further restrictions on plaintiffs’ ability to prove their cases by revising qualifications to give expert testimony on the prevailing standard of care.

      . This language has not changed since 2011. See § 766.102(3)(b), Fla. Stat. (2011). Also, before 2003, the foreign-body statutory presumption was codified at section 766.102(4), Florida Statutes. See, e.g., § 766.102(4), Fla. Stat. (2002).

      . See also L.B. v. State, 700 So.2d 370, 372 (Fla. 1997).

      . See, e.g., McDougald v. Perry, 716 So.2d 783, 786 (Fla. 1998) (holding that res ipsa loquitur was applicable when a "spare tire escap[ed] from the cradle underneath the track, resulting in the tire ultimately becoming airborne and crashing into [Petitioner’s] vehicle”); Am. Dist. Elec. Protective Co. v. Seaboard Air Line Ry. Co., 129 Fla. 518, 177 So. 294, 295 (1937) (holding that res ipsa loquitur was applicable when a protective company for a railway "allowed a wire, comprising a part of [the] protective company’s signal system, to sag over the railway company’s tracks by reason of neglect and which an employee of the railway company was knocked from a freight car passing under same, and thereby seriously injured”).


source: Caselaw Access Project

license: Public Domain

text:
    FLORIDA BOARD OF BAR EXAMINERS RE: C.T.C.J.
    CASE NO.: SC17-333
    Supreme Court of Florida.
    MARCH 7, 2017
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and C.T.C.J. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of one year.

2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;

(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc.;

(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. by complying with the rehabilitation contract with that organization executed on January 22, 2016, and by extending the contract to cover the entire period of probation if necessary;

(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance, Inc.; practice AA/NA principles in all of his affairs and carry the AA/NA message to other individuals with a substance use disorder;

(e) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by Florida Lawyers Assistance, Inc.;

(f) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance, Inc.; and

(g) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), (d) and (e) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule l-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license,

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant’s practice of law.

6. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


author: CANADY, J.

text:
    Ruth D. LEDOUX-NOTTINGHAM, Petitioner, v. Jennifer Joy DOWNS, etc., Respondents.
    No. SC15-1037
    Supreme Court of Florida.
    February 16, 2017

      Jamie Billotte Moses of Holland & Knight LLP, Orlando, Florida, for Petitioner
    Andrew Thomas Windle of The Windle Family Law Firm, P.A., Orlando, Florida, for Respondents
   CANADY, J.

In this case we consider whether the Full Faith and Credit Clause of the United States Constitution requires enforcement of a sister state’s judgment ordering grandparent visitation with minor children despite the fact that the right of privacy set forth in article I, section 23 of the Florida Constitution protects the right of parents to raise their children free from unwarranted governmental interference. We have for review LeDoux-Nottingham v. Downs, 163 So.3d 560 (Fla. 5th DCA 2015), in which the Fifth District Court of Appeal rejected the argument that a Colorado judgment ordering grandparent visitation is unenforceable as a matter of Florida law and public policy because it violates “childrearing autonomy” guaranteed to parents under article I, section 23 of the Florida Constitution. The Fifth District held that under “the Full Faith and Credit Clause [of the United States Constitution], trial courts are required, without discretion, to give recognition to final judgments of another state when applicable,” and certified conflict with M.S. v. D.C., 763 So.2d 1051, 1055 (Fla. 4th DCA 1999), in which the Fourth District held that the Full Faith and Credit Clause does not trump Florida’s overriding public policy of a guaranteed fundamental right of privacy in childrearing autonomy. Le-Doux-Nottingham, 163 So.3d at 563-65. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

For the reasons we explain, we approve the Fifth District’s decision in LeDoux-Nottingham and disapprove the Fourth District’s decision in M.S. We also disapprove the decision of the Second District in Fazzini v. Davis, 98 So.3d 98 (Fla. 2d DCA 2012), to the extent that it holds that Florida’s public policy may provide an exception to the full faith and credit due judgments of sister states.

I. BACKGROUND

Petitioner, Ruth D. LeDoux-Notting-ham, and the father of her two minor children were divorced in Colorado in 2010. LeDoux-N ottingham, 163 So.3d at 561. The father died in 2011 in Colorado. Id. Immediately after the funeral, Le-Doux-Nottingham and her minor children moved to Florida. Id. Respondents, Jennifer Joy Downs and William Glen Downs (hereinafter “the Grandparents”), timely initiated a proceeding in Colorado seeking visitation with the children. Id. LeDoux-Nottingham then filed a separate action in Florida to register the Colorado final judgment dissolving her marriage and for a judicial determination that the Grandparents have no legal right to timesharing with her minor children. Id. In October 2012, the Colorado court issued a final judgment awarding the Grandparents visitation with the children (hereinafter “the Colorado order”). Id at 562. LeDoux-Not-tingham then amended her petition in Florida and sought to both domesticate and modify the Colorado order, arguing, in relevant part, that under Florida law, enforcement of a grandparent visitation order is unconstitutional and against public policy. Id. After a trial, the Florida court entered a final order which registered and domesticated the Colorado order, stated that it was enforceable in Florida, and denied LeDoux-Nottingham’s request for modification. Id.

LeDoux-Nottingham appealed the Florida trial court’s order, arguing that the Colorado order was unenforceable as a matter of Florida law and public policy because it violates childrearing autonomy guaranteed to parents under article I, section 23 of the Florida Constitution, which states that “[ejvery natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” Id. (alteration in original). In rejecting Le-Doux-Nottingham’s argument, the Fifth District relied on the decision of the United States Supreme Court in Baker v. General Motors Corp., 522 U.S. 222, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998), which the district court concluded “makes clear that the public policy of one state has no effect on whether the state must give full faith and credit to judgments, rather than law, of another state,” and held that under “the Full Faith and Credit Clause, trial courts are required, without discretion, to give recognition to final judgments of another state when applicable.” 163 So.3d at 563. The district court concluded that the trial court properly enforced the Colorado order granting the Grandparents visitation, reasoning as follows:

Since the Colorado order was a final judgment and emanated from a “child custody proceeding” within the meaning of section 61.503(4), Florida Statutes (2013),[N,2] it became enforceable in Florida pursuant to the Full Faith and Credit Clause as well as section 61.526, Florida Statutes. See [Baker, 522 U.S. at 232-33, 118 S.Ct. 657]; § 61.526(1), Fla. Stat. (2013) (“A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this part or the determination was made under factual circumstances meeting the jurisdictional standards of this part and the determination has not been modified in accordance with this part.”).
[N.2] § 61.504(4), Fla. Stat. (2013) (defining “child custody proceeding” as “a proceeding in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue”).

Id.

The Fifth District also affirmed the trial court’s decision that modification of the Colorado order was not warranted because there had not been a subsequent substantial and material change in circumstances. Id. at 564. And the Fifth District certified conflict with M.S., in which the Fourth District reversed an order granting a motion for visitation filed by grandparents based on a Connecticut divorce and custody decree that provided for grandparent visitation. The Fourth District in M.S. stated:

We have considered the argument that the Connecticut [grandparent] visitation order is entitled to full faith and credit. However, a visitation provision such as this, while entitled to our respect on comity principles, does not prevent the application of an overriding provision of our law, applying a paramount public policy. As our supreme court has recognized, few policies in the state are more paramount than enforcement of an exercise of a recognized constitutional right to privacy.

768 So.2d at 1065 (citations omitted).

II. ANALYSIS

In the analysis that follows, we first consider whether final judgments entered by sister states relating to child custody and visitation are entitled to full faith and credit or subject to the principles of comity. Because we conclude that such judgments are entitled to full faith and credit, we then consider whether the Full Faith and Credit Clause mandates enforcement of the Colorado order in Florida even if such enforcement would violate LeDoux-Nottingham’s right of privacy under the Florida Constitution or whether there is a public policy exception to the Full Faith and Credit Clause. We conclude that there is no public policy exception to the Full Faith and Credit Clause, and the Colorado order is enforceable in Florida.

A. Comity vs. the Full Faith and Credit Clause

Because the Fourth District in M.S. held that a grandparent visitation order from a sister state was entitled to “respect on comity principles,” 763 So.2d at 1055, while the Fifth District below held that under “the Full Faith and Credit Clause, trial courts are required, without discretion, to give recognition to final judgments of another state when applicable,” 168 So.3d at 563, we first consider whether child custody and visitation orders entered by a sister state are entitled to full faith and credit or merely subject to the principles of comity.

The Full Faith and Credit Clause of the United States Constitution provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Art. ÍV, § 1, U.S. Const. The clause was intended to replace the earlier rule of comity with a constitutional duty of states to honor the laws and judgments of sister states. Estin v. Estin, 334 U.S. 541, 546, 68 S.Ct. 1213, 92 L.Ed. 1561 (1948) (noting that the Full Faith and Credit Clause “substituted a command for the earlier principles of comity and thus basically altered the status of the States as independent sovereigns”). The clause contains implementing language that gives Congress the power “by general Laws [to] prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Art. IV, § 1, U.S. Const. Congress adopted such a law with regard to custody determinations when it enacted the Parental Kidnaping Prevention Act of 1980 (PKPA). Pub. L. 96-611, §§ 6-10, 96 Stat. 3568 (1980).

The PKPA requires “every State [to] enforce according to its terms ... any custody determination or visitation determination made consistently with the provisions of this section[] by a court of another State.” 28 U.S.C. § 1738A(a) (2012). In Thompson v. Thompson, 484 U.S. 174, 183, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988), the United States Supreme Court explained that “Congress’ chief aim in enacting the PKPA was to extend the requirements of the Full Faith and Credit Clause to custody determinations” and that “the PKPA is a mandate directed to state courts to respect the custody decrees of sister States.” Thus, there is no doubt that custody determinations of a sister state are entitled to full faith and credit.

LeDoux-Nottingham acknowledges that custody determinations are entitled to full faith and credit under the PKPA and she does not contend that the Colorado court did not have jurisdiction to enter the visitation order. Even so, she contends that the PKPA does not apply here because “this is not a custody issue” and the PKPA applies only to parents. This contention is untenable.

The PKPA was amended in 1998 to include any “visitation determination” in addition to “any custody determination.” See Enforcement of Child Custody and Visitation Orders, Pub. L No. 105-374, 112 Stat. 3383 (1998) (“Section 1738A(a) of title 28, United States Code, is amended by striking ‘subsection (f) of this section, any child custody determination’ and inserting ‘subsections (f), (g), and (h) of this section, any custody determination or visitation determination.’”). The 1998 amendment also modified the definition of a “contestant” in subsection (b)(2) from “a person, including a parent, who claims a right to custody of a child” to “a person, including a parent or grandparent, who claims a right to custody or visitation of a child.” Id. (emphasis added).

Because the PKPA explicitly applies to “any custody determination or visitation determination,” including those in which a grandparent claims a right to visitation of a child, the Colorado order— which was entered in compliance with the PKPA—is by the express terms of the PKPA subject to the commands of the Full Faith and Credit Clause. And to the extent that the PKPA conflicts with Florida law, the PKPA—as federal law—controls under the Supremacy Clause of the United States Constitution. Yurgel v. Yurgel, 572 So.2d 1327, 1329 (Fla. 1990) (“Under the supremacy clause of the [United States] Constitution, the PKPA supersedes any and all inconsistent state laws.” (citing Thompson)); see art. VI, cl. 2, U.S. Const. (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”).

B. Whether a Public Policy Exception to the Full Faith and Credit Clause Exists

We next consider whether a public policy exception to the Full Faith and Credit Clause exists that would prevent enforcement of the Colorado order in Florida. LeDoux-Nottingham asserts that enforcement of the Colorado order is not required in Florida because it would offend the right of privacy as articulated in article I, section 23 of the Florida Constitution and there is a public policy exception to the Full Faith and Credit Clause. While the Florida Constitution does protect the right of parents to raise their children free from unwarranted governmental interference, see Richardson v. Richardson, 766 So.2d 1036, 1043 (Fla. 2000), that state right is subordinate to the directives of the Federal Constitution under the Supremacy Clause, and the United States Supreme Court has made it clear that there is no public policy exception to the full faith and credit due final judgments of a sister state.

As explained by the Supreme Court, the Full Faith and Credit Clause “requires each State to recognize and give effect to valid judgments rendered by the courts of its sister States.” V.L. v. E.L., _ U.S. _, 136 S.Ct. 1017, 1020, 194 L.Ed.2d 92 (2016). It serves “to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation.” Milwaukee County v. M.E. White Co., 296 U.S. 268, 277, 56 S.Ct. 229, 80 L.Ed. 220 (1935); see also Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439, 64 S.Ct. 208, 88 L.Ed. 149 (1943) (noting that “the clear purpose of the full faith and credit clause” was to establish the principle that “a litigation once pursued to judgment shall be as conclusive of the rights of the parties in every other court as in that where the judgment was rendered”); Pac. Employers Ins. Co. v. Indus. Accident Comm’n, 306 U.S. 493, 501, 59 S.Ct. 629, 83 L.Ed. 940 (1939) (“[T]he purpose of [the Full Faith and Credit Clause] was to preserve rights acquired or confirmed under the public acts and judicial proceedings of one state by requiring recognition of their validity in other states .... ”). As authorized by the Full Faith and Credit Clause, Congress has prescribed:

Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

28 U.S.C. § 1738.

In interpreting the Full Faith and Credit Clause, the Supreme Court stated in Baker, “Regarding judgments ... the full faith and credit obligation is exacting. A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.” 522 U.S. at 233, 118 S.Ct. 657. There is “no roving ‘public policy exception’ to the full faith and credit due judgments.” Id. (citing Estin, 334 U.S. at 546, 68 S.Ct. 1213 (stating that the Full Faith and Credit Clause “ordered submission by one State even to hostile policies reflected in the judgment of another State, because the practical operation of the federal system, which the Constitution designed, demanded it”), and Fauntleroy v. Lum, 210 U.S. 230, 237, 28 S.Ct. 641, 52 L.Ed. 1039 (1908) (holding that judgment of Missouri court was entitled to full faith and credit in Mississippi even if Missouri judgment rested on a misapprehension of Mississippi law)).

Last year, the Court reiterated these principles, stating:

With respect to judgments, “the full faith and credit obligation is exacting.” Baker v. General Motors Corp., 522 U.S. 222, 233, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998). “A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.” Ibid. A State may not disregard the judgment of a sister State because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits. On the contrary, “the full faith and credit clause of the Constitution precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based.” Milliken v. Meyer, 311 U.S. 457, 462, 61 S.Ct. 339, 85 L.Ed. 278 (1940).

V.L., 136 S.Ct. at 1020. The Supreme Court thus continues to reject any notion that a state may elevate its own public policy over the policy behind a sister state’s judgment and thereby disregard the command of the Full Faith and Credit Clause.

Although we have previously held unconstitutional numerous Florida statutes providing for grandparent visitation as vio-lative of Florida’s right of privacy, the question presented here is not whether the Grandparents are entitled to visitation under Florida law, but whether Florida is required to enforce the Colorado order despite the fact that entry of a similar judgment by a Florida court under the same circumstances would be prohibited by the Florida Constitution, and the answer is yes.

III. CONCLUSION

For the reasons explained above, we approve the decision of the Fifth District in LeDoux-Nottingham and disapprove the decision of the Fourth District in M.S. to the extent that it applied comity principles to an out-of-state visitation order rather than the Full Faith and Credit Clause and concluded that Florida’s public policy can override the requirement to provide full faith and credit to judgments entered by a sister state. We also disapprove the decision of the Second District in Fazzini to the extent that it holds that the public policy of Florida may provide an exception to the full faith and credit due to judgments entered by a sister state.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and POLSTON, JJ., concur.

LEWIS, J., concurs in result.

LAWSON, J., did not participate.

      . Consistency with section 1738A has been described as follows:
      In order for a state court’s custody decree to be consistent with the provisions of the Act, the State must have jurisdiction under its own local law and one of five conditions set out in § 1738A(c)(2) must be met. Briefly put, these conditions authorize the state court to enter a custody decree if the child’s home is or recently has been in the State, if the child has no home State and it would be in the child’s best interest for the State to assume jurisdiction, or if the child is present in the State and has been abandoned or abused.
      Thompson v. Thompson, 484 U.S. 174, 176-77, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988).

      . LeDoux-Nottingham has not challenged the constitutional authority of Congress to enact the PKPA.

      . See Sullivan v. Sapp, 866 So.2d 28, 37 (Fla. 2004); Richardson v. Richardson, 766 So.2d 1036, 1043 (Fla. 2000); Saul v. Brunetti, 753 So.2d 26, 29 (Fla. 2000); Von Eiff v. Azicri, 720 So.2d 510, 517 (Fla. 1998); Beagle v. Beagle, 678 So.2d 1271, 1276 (Fla. 1996). We have not considered the constitutionality of the current limited grandparent visitation provision, section 752.011, Florida Statutes (2015).

      . Entry of a similar judgment by a Florida court under the same circumstances would undoubtedly be prohibited by the Florida Constitution. Colorado law provides for grandparent visitation in the case of a divorce or a deceased parent based on the best interests of the child without first requiring proof of demonstrable harm to the child, see section 19-1-117, Colorado Revised Statutes, and the Colorado court here indeed ordered visitation based on the children’s best interests alone, but we held in Von Eiff, 720 So.2d at 516-17, that Florida’s right of privacy was violated by section 752.01(l)(a), Florida Statutes (1993), which mandated that if one or both parents are deceased, a court shall order grandparent visitation when in the best interest of the minor child, without first requiring proof of demonstrable harm to the child.


author: LABARGA, C.J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. SHANDS JACKSONVILLE MEDICAL CENTER, INC., Respondent.
    No. SC15-1257
    Supreme Court of Florida.
    February 16, 2017

      Anthony John Russo and Alan Jeffrey Nisberg of Butler Weihmuller Katz Craig LLP, Tampa, Florida, for Petitioner
    John Andrew Tucker, IV of Foley & Lardner LLP, Jacksonville, Florida; and James Andrew McKee and Benjamin James Grossman of Foley & Lardner LLP, Tallahassee, Florida, for Respondent
   LABARGA, C.J.

This case is before the Court for review of the decision of the First District Court of Appeal in Shands Jacksonville Medical Center, Inc. v. State Farm Mutual Automobile Insurance Co., _ So.3d _, 40 Fla. L. Weekly D1447 (Fla. 1st DCA June 22, 2015), certifying conflict with the decision of the Fourth District Court of Appeal in Kaminester v. State Farm Mutual Automobile Insurance Co., 775 So.2d 981 (Fla. 4th DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The certified conflict issue in this case concerns the extent of permissible discovery under section 627.736(6)(c), Florida Statutes (2015), and requires us to examine additional provisions of section 627.736, the statute that governs personal injury protection (PIP) benefits. Relevant to this case, section 627.736(5) addresses the reasonableness of charges for treatment, providing:

(5) CHARGES FOR TREATMENT OF INJURED PERSONS.—
(a) A physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered ... In determining whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, reimbursement levels in the community and various federal and state medical fee schedules applicable to motor vehicle and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.

§ 627.736(5)(a), Fla. Stat. Additionally, section 627.736(6), addresses discovery of facts about an injured person, providing:

(6) DISCOVERY OF FACTS ABOUT AN INJURED PERSON; DISPUTES.—
(b) Every physician, hospital, clinic, or other medical institution providing, before or after bodily injury upon which a claim for personal injury protection insurance benefits is based, any products, services, or accommodations in relation to that or any other injury, or in relation to a condition claimed to be connected with that or any other injury, shall, if requested by the insurer against whom the claim has been made, furnish a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury, and produce, and allow the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment if this does not limit the introduction of evidence at trial ....
(c) In the event of a dispute regarding an insurer’s right to discovery of facts under this section, the insurer may petition a court of competent jurisdiction to enter an order permitting such discovery. The order may be made only on motion for good cause shown .... In order to protect against annoyance, embarrassment, or oppression, as justice requires, the court may enter an order refusing discovery or specifying conditions of discovery ....

§ 627.736(6)(b)-(c), Fla. Stat.

In the decision under review, the First District held that discovery of facts under section 627.736(6)(c) is limited to the production of the documents described in section 627.736(6)(b). After reaching this conclusion, the First District certified conflict with the Fourth District’s holding in Kami-nester that “the ‘discovery of facts’ referred to in section 627.736(6)(c), Florida Statutes, means that the discovery methods provided for in the Florida Rules of Civil Procedure are available to insurers that institute proceedings pursuant to that statute.” Shands, _ So.3d at _, 40 Fla. L. Weekly at D1449. We recognize that while the parties before this Court disagree about the scope of information available to insurers under section 627.736(6)(c), both the First and the Fourth District Courts of Appeal agree that the reference to discovery under section 627.736(6)(c) applies “only to the types of information a healthcare provider is required to provide as delineated in section 627.736(6).” Shands, _ So.3d at _, 40 Fla. L. Weekly at D1448; see also State Farm Mut. Auto. Ins. Co. v. Delray Med. Ctr., Inc., 178 So.3d 511, 515-17 (Fla. 4th DCA 2015) (distinguishing Kaminester, and holding that State Farm’s discovery requests exceeded the permissible scope of discovery under the applicable statute). Accordingly, the conflict issue we address is limited to the methods by which an insurer may obtain discovery.

For the reasons discussed below, we approve the First District’s interpretation in Shands of the scope of discovery under section 627.736(6)(c), and disapprove the interpretation of the Fourth District in Kaminester.

FACTS AND PROCEDURAL HISTORY

Shands Jacksonville Medical Center (Shands) provided medical services to twenty-nine State Farm Mutual Automobile Insurance Company (State Farm) insureds who were injured in motor vehicle accidents. After paying Shands, State Farm requested certain documentation relating to the reasonableness of the charges pursuant to section 627.736(6)(b), which requires a healthcare provider to furnish a PIP insurer, upon request, with specified documents and information related to the treatment of an injured person and associated costs. In response, Shands provided State Farm with medical records, documents related to the treatments and charges for services rendered, its most recent Medicare Cost Report, its cost information, and comparative cost information obtained from the Agency for Health Care Administration (AHCA) demonstrating what other hospitals charge for the same procedures. However, Shands refused to furnish copies of third-party contracts, which contain negotiated discount rates between Shands and other insurers and payers, contending that such information was not covered by subsection (6)(b). State Farm then filed a petition pursuant to section 627.736(6)(c), asking the trial court to compel discovery of the information withheld and order Shands to make a corporate representative available for deposition.

The trial court found that the language of section 627.736(6)(c) allows for discovery under the entirety of section 627.736, including evidence of the reasonableness of charges addressed in subsections (5)(a) and (6)(b). Furthermore, the trial court adopted the reasoning of the Fourth District in Kaminester, finding that the phrase “discovery of facts” in section 627.736(6)(c) was not limited to document production, but included “deposition testimony and other means of obtaining information authorized by the Florida Rules of Civil Procedure.” Ultimately, the trial court ordered Shands to produce the requested discovery and granted State Farm’s request to depose a corporate representative about documents and information.

On appeal, the First District reversed the trial court’s order in its entirety on the basis that it exceeded the scope of discovery permissible under sections 627.736(6)(b) and (c), declaring:

[W]e disagree with the trial court’s conclusion that the “discovery of facts” referred to in section 627.736(6)(c), Florida Statutes!,] allows discovery under the entirety of section 627.736, including the types of evidence that may be considered when determining the reasonable reimbursement rate for medical bills presented for treatment referred to in section 627.736(5)(a).

Shands, _ So.3d at _, 40 Fla. L. Weekly at D1448. The district court concluded that the discovery to which State Farm was entitled was limited to the types of documents specifically delineated by subsection (6)(b). Id. Moreover, the district court disagreed with the trial court’s adoption of the reasoning in Kaminester, and determined that “the phrase ‘discovery of facts’ in subsection (6)(c) is limited to the production of the documents described in subsection (6).” Id. at _, at D1449.

In Kaminester, the Fourth District examined the nature and extent of discovery permitted under section 627.736(6)(b) after a healthcare provider refused to produce the invoice for an MRI upon the insurer’s request, claiming that no invoice existed because the equipment used was leased. The district court affirmed the trial court’s order for the healthcare provider to furnish the invoice, determining that the lease was “well within the meaning of the statutory discovery provision ‘the costs of such treatment.’ ” Kaminester, 775 So.2d at 985.

Relevant to the conflict issue here, the Fourth District affirmed the trial court’s order requiring the healthcare provider’s corporate president to submit to a deposition duces tecum pursuant to subsection (6)(e). Id. at 984. The district court reasoned that when the Legislature used the legal term of art “discovery of facts” in subsection (6)(c), it borrowed the term “discovery” from the Florida Rules of Civil Procedure, which provide, “Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission.” Id. at 985 (quoting Fla. R. Civ. P. 1.280(a)). The court interpreted “discovery” consistent with its legal meaning and emphasized that section 627.736(6) authorizes discovery of “facts,” not merely discovery of documents. Id. Consequently, the district court concluded that the healthcare provider’s refusal to supply any of the requested information established good cause for the trial court’s order compelling the corporate president to submit to a deposition in order to verify the amount due under the PIP policy. Id. at 986.

ANALYSIS

This case concerns the certified conflict between the First District’s holding in Shands and the Fourth District’s holding in Kaminester regarding the extent of permissible discovery pursuant to section 627.736(6)(c). “Because the conflict issue requires this Court to interpret provisions of the Florida Motor Vehicle No-Fault Law (No-Fault Law), the standard of review is de novo.” Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328, 331 (Fla. 2007) (footnote omitted).

“As always, legislative intent is the polestar that guides a court’s inquiry under the No-Fault Law,” including the PIP statute. Id. at 334. “Such intent is derived primarily from the language of the statute.” Id. “Where the wording of the Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law.” Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So.3d 147, 154 (Fla. 2013) (quoting United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 85 (Fla. 2001)).

However, as we examine the plain language of section 627.736(6), we observe that the First District in Shands and the Fourth District in Kaminester reached irreconcilable interpretations of the “discovery of facts” language in subsection (6)(c). The First District held that the phrase “discovery of facts” is limited to the production of the documents described in section 627.736(6)(b), in direct contrast to the Fourth District’s construction that “discovery of facts” includes all methods of discovery available under the Florida Rules of Civil Procedure. Thus, because the phrase “discovery of facts,” in section 627.736(6)(e), is susceptible to more than one interpretation, it is necessary to utilize principles of statutory construction to ascertain legislative intent. See Rollins v. Pizzarelli, 761 So.2d 294, 297-98 (Fla. 2000) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla. 1992) (“Ambiguity suggests that reasonable persons can find different meanings in the same language.”)). Consequently, we “must consider the statute as a whole,

including the evil to be corrected, the language, the title, and history of its enactment, and the state of law already in existence on the statute.” Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1266 (Fla. 2008) (quoting Bautista v. State, 863 So.2d 1180, 1185 (Fla. 2003)).

We have recognized that “the purpose of the no-fault statutory scheme is to ‘provide swift and virtually automatic payment. ...”’ Nunez v. Geico Gen. Ins. Co., 117 So.3d 388, 393 (Fla. 2013) (quoting Ivey v. Allstate Ins. Co., 774 So.2d 679, 683-84 (Fla. 2000)). Consistent with this purpose, subsection (6) of the PIP statute allows an insurer to verify the legitimacy of a claim by seeking discovery of facts regarding an injured insured before it pays PIP benefits. Subsection (6)(b) delineates the mandatory disclosures to which an insurer is entitled upon request, and subsection (6)(c) provides an enforcement mechanism by which an insurer may obtain the discovery to which it is entitled in the event of a dispute.

We agree with the First District that “[t]he process encompassed by subsections (6)(b) and (c) is meant to be a limited pre-litigation procedure for a PIP insurer to obtain specified information about the treatment provided to its insured and the charges for that treatment.” Shands, _ So.3d at _, 40 Fla. L. Weekly at D1449. Additionally, we agree with both the First District in Shands and the Fourth District' in Delray that the disclosures enumerated in subsection (6)(b) are limited to what is discoverable in the context of a pre-litigation inquiry into the treatment provided by the healthcare provider and the charges for that treatment, and that “discovery of facts” under subsection (6)(c) is limited to the specific facts of treatment and to the related billing of the injured person.

In considering how the language and title of subsection (6) further reveal the intent of the Legislature, we turn to the Fourth District’s recent decision in Delray, which involved facts that are strikingly similar to the present case. In Delray, the district court considered “whether section 627.736 permits State Farm to' request discovery about the reasonableness of charges by [the healthcare provider], including discovery regarding the amount others paid ... for the same services and treatments.” 178 So.3d at 512. The Fourth District affirmed the trial court’s denial of State Farm’s petition for discovery as “overbroad” and “extremely far-reaching,” holding that “discovery is limited under section 627.736(6)(b) to the facts of the treatment and to the related billing of the injured person,” and that “section 627.736(5) is inapplicable to discovery sought under section 627.736(6)(b).” Id. at 512-13.

While addressing the extent of permissible discovery, the Fourth District in Del-ray did not have occasion to address the discovery of depositions, which is at issue here. Judge Levine, writing for the majority, aptly observed the distinction between Delray and Kaminester as follows: “the documentation sought in Kaminester was directly related to treatments and services provided to the injured party, unlike here where State Farm sought information regarding amounts paid by others.” 178 So.3d at 515. Nonetheless, the Fourth District’s reasoning in Delray regarding the intent of the Legislature is insightful. The district court declared, “[b]ased on the plain language of this subsection, as well as the title of the subsection, it is clear that the focus of this provision is the discovery of documents regarding the treatment and related billing of the individual injured person.” Id. The court adopted the First District’s interpretation of section 627.736(6) in Shands, which provided:

It seems clear to us, [ ] that the “section” referred to in subsection (6)(c) is in fact a reference to subsection (6), not the entirety of section 627.736. Subsection (6), unlike subsection (5)(a), specifically provides that a PIP insurer is entitled to “Discovery of Facts About an Injured Person,” and subsection (6)(b) delineates the specific types of information (facts) and documentation to which a PIP insurer is entitled to receive from medical providers in analyzing the payment of claims. Furthermore, the title to subsection (6) also indicates that it addresses “Disputes.” Accordingly, subsection (6)(c) begins with the phrase: “In the event of a dispute regarding an insurer’s right to discovery of facts under this section ...,” which clearly applies to disputes related to an insurer’s attempt to obtain the information and documentation relating to the treatment and associated costs of treatment to an injured insured specified in subsection (6).
Thus, subsection (6)(b) concerns the types of facts and documents to which a PIP insurer is entitled to assist it in ascertaining the reasonableness of the treatment provided to its insured and the amount the medical provider charged for that care. Subsection (5)(a), on the other hand, addresses the factors, or “types of evidence,” relevant to the reasonableness of a medical provider’s charges. These factors, however, are implicated when there is a dispute as to the reasonableness of charges for treatment, not when there is a dispute concerning an insurer’s attempt to obtain the information it is entitled to so that it can assess the reasonableness of those charges.

Shands, _ So.3d at _, 40 Fla. L. Weekly at D1448.

We agree with the First District’s reasoning and its interpretation that the “discovery of facts” in subsection (6)(c) applies to disputes regarding an insurer’s attempt to obtain information and documentation specified in subsection (6)(b). The title to subsection (6), “Discovery of Facts About an Injured Person; Disputes,” reflects that the Legislature intended the provisions of subsection (6) to allow insurers to discover facts about an injured insured before paying claims. Moreover, subsection (6)(c) employs the same “discovery of facts” language as the title, creating a direct link to the discovery provisions set forth within section 627.736(6). Thus, we conclude that discovery is limited to the production of “a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement ... ” as well as the production, inspection and copying of “records regarding such history, condition, treatment, dates, and costs of treatment ....”§ 627.736(6)(b), Fla. Stat.

Furthermore, we agree that subsection (6) provides limited pre-litigation discovery into specified information about the treatment and charges for treatment provided to an injured party, and that “[t]he discovery tools found in the rules of civil procedure, ... are not triggered until litigation over the reasonableness of those charges has ensued (i.e., commenced pursuant to subsection (5)(a)).” Shands, _ So.3d at _, 40 Fla. L. Weekly at D1449. Therefore, we approve the First District’s holding that “nothing in subsections (6)(b) or (c) contemplates requiring a PIP medical provider to submit any of its representatives to deposition, and the trial court erred by ordering Shands to make a designated corporate representative available for deposition.” Id.

CONCLUSION

For these reasons, we hold that the scope of permissible discovery under section 627.736(6)(c) is limited to the production of documents described in subsection (6)(b). Accordingly, we approve the reasoning of the First District in Shands and disapprove of Kaminester to the extent that it permits discovery under the Florida Rules of Civil Procedure.

It is so ordered.

PARIENTE, LEWIS, and QUINCE, JJ., concur.

CANADY and POLSTON, JJ., concur in result.

LAWSON, J., did not participate.