In a recent opinion, a state appellate court discussed the notice requirements of a Florida medical malpractice lawsuit. That presented a situation in which a plaintiff filed a lawsuit against a healthcare provider raising claims that the plaintiff believed was not based on a theory of medical malpractice. Thus, the plaintiff did not take the extra steps to comply with the state’s notice requirements for medical malpractice lawsuits.
The court had to decide if the case should be dismissed based on the plaintiff’s failure to comply with the additional notice requirements. Ultimately, the court concluded that the plaintiff did not need to comply with the additional requirements because the plaintiff’s lawsuit was brought under a traditional theory of negligence and not considered a medical malpractice case.
Florida Statutes section 766.106 – Florida’s Medical Malpractice Notice Provision
Florida lawmakers have made it so all Florida medical malpractice plaintiffs must comply with additional requirements in order for their case to be properly heard. These additional requirements can be burdensome, however, if they are not followed a plaintiff’s case may be dismissed without the merits of the case ever being heard.
Under section 766.106, a Florida medical malpractice plaintiff must provide pre-suit notice to the defendant. However, as noted above, only plaintiffs with claims based on a theory of medical malpractice must comply with the notice provision. Florida law states that a medical malpractice case is one that arises “out of the rendering of, or the failure to render, medical care or services.”
The Facts of the Case
The plaintiff was seriously injured while he was a resident at an in-patient psychiatric facility. Evidently, another resident removed a handrail from the wall and attacked the plaintiff, causing serious injury to the plaintiff’s face and head. The plaintiff filed a personal injury lawsuit against the facility, arguing that it failed to provide for the necessary security to prevent this type of accident from occurring.
The facility moved for summary judgment, arguing that because the plaintiff did not provide pre-suit notice of his intent to sue, the case did not comply with section 766.106 and should be dismissed. The plaintiff argued that his case was not based on a theory of medical malpractice, and that pre-suit notice was not required.
The court agreed with the plaintiff and permitted his case to proceed. The court explained that the burdensome pre-suit requirements of a medical malpractice case should only apply when the case truly is one of medical malpractice. Here, the court held, the plaintiff’s case was more in line with a traditional negligence lawsuit because it was not directly related to the “medical care or services” provided by the defendant facility.
Have You Been Injured in a Florida Accident?
If you or a loved one has recently been injured in a Florida slip-and-fall accident at a doctor’s office, hospital, or other medical setting, you may be entitled to monetary compensation. Not all accidents that occur in the medical setting should be characterized as claims of medical malpractice, because it placed unfair burdens on you as the plaintiff. The dedicated Florida personal injury and medical malpractice attorneys at the law firm of Frankl Kominsky have extensive experience handling both medical malpractice and traditional negligence lawsuits. To learn how we can help you with your case, call 561-567-0298 to schedule your free consultation today.
See Additional Blog Posts:
The Importance of Establishing a Defendant’s Knowledge of the Hazard in Florida Premises Liability Lawsuits, South Florida Injury Attorneys Blog, June 13, 2018.
Florida Court Dismisses Claim Due to Plaintiff’s Concealment of Previous Injury, South Florida Injury Attorneys Blog, July 18, 2018.
Photo Credit: O n E studio / Shutterstock.com