Given the different procedural and substantive rules that apply in medical negligence cases, distinguishing medical negligence from ordinary negligence is a fundamental issue in cases that possibly implicate medical negligence. Indeed, many attorneys are aware of the far more arduous standards that apply to medical negligence, and they will often try to purposefully describe the facts and underlying legal theories of a case in order to avoid it being placed in the ambit of medical negligence liability. Although artful pleading can occasionally be successful, courts define medical negligence broadly and, as a result, stymie many creative attorneys’ attempts to avoid these heightened rules for liability. For instance, the scope of medical negligence was an issue in a recent decision from Florida’s First District Court of Appeal, Shands Teaching Hosp. and Clinics, Inc. v. Estate Of Lawson, which addressed whether an alleged act of negligence arising from services provided at a psychiatric unit qualified as “medical negligence.”
Lawson followed a tragic accident in January 2013. The plaintiff in this case is the estate of a woman who, two months prior to the date of the accident, had been admitted to the facility for a psychiatric condition. Although she was confined in a locked psychiatric ward, the woman was able to retrieve an employee’s unattended keys and badge and abscond from the facility. The woman went to a nearby interstate, where she was struck by an oncoming truck and died. Her estate brought suit against the facility, arguing that the defendant’s action amounted to “ordinary negligence.” The facility moved to dismiss, contending that the complaint sounded in “medical negligence,” and therefore the plaintiff needed to comply with the provisions of Section 766.106(1)(a) of the Florida Statutes. Since the plaintiff did not comply with the mandatory pre-suit requirements of Section 766.106(1)(a), the facility argued that the complaint should be dismissed.
A claim for medical negligence or medical malpractice is defined as “a claim, arising out of the rendering of, or the failure to render, medical care or services.” § 766.106(1)(a) Fla. Statutes. Therefore, the court needed to determine whether the act at issue here arose “out of the rendering of, or the failure to render, medical care or services.” S. Baptist Hosp. of Fla., Inc. v. Ashe, 948 So. 2d 889, 890 (Fla. 1st DCA 2007) (internal quotation marks and citation omitted). Although the estate asserted that the defendant’s conduct amounted to ordinary negligence, the First District concluded that this was not a proper characterization. Indeed, simply labeling conduct as ordinary negligence does not remove it from coverage under Section 766.106(1)(a). See, e.g., Omni Healthcare, Inc. v. Moser, 106 So. 3d 474, 475 (Fla. 5th DCA 2012). In the current case, the duty of the facility to confine the woman arose from her being admitted for a psychiatric hold. Although the estate contended that the negligence did not relate to the diagnosis or treatment of the condition, the First District found that the need to monitor and confine the woman was part of the treatment being provided for her psychiatric condition. Accordingly, the failure to adequately confine the woman amounted to a failure to render medical care or services. Thus, the conduct at issue amounted to possible medical negligence, not ordinary negligence. Since the conduct at issue involved medical negligence, the estate needed to comply with the pre-suit requirement under Section 766. Since the estate failed to do so, the First District concluded that the case should be dismissed.
Although this decision appears to cast the net for medical negligence quite broadly, there are indeed cases when the acts of a medical provider or its agents do not qualify as medical negligence. See, e.g., Quintanilla v. Coral Gables Hosp., Inc., 941 So. 2d 468 (Fla. 3d DCA 2006) (finding that spilling hot tea on a patient was ordinary negligence); Tenet St. Mary’s Inc. v. Serratore, 869 So. 2d 729 (Fla. 4th DCA 2004) (finding that inadvertently hitting a patient was ordinary negligence); Lake Shore Hosp., Inc. v. Clarke, 768 So. 2d 1251 (Fla. 1st DCA 2000) (finding that a standard slip and fall in a hospital was ordinary negligence). Nonetheless, medical providers will often assert that a claim for almost any form of negligence falls within the purview of Section 766.106(1)(a), and litigants should always be prepared to either comply with the requirements of Section 766 when the negligence can fairly be described as medical negligence or, alternatively, make a convincing showing that ordinary negligence is in fact at issue.
The assistance of an experienced attorney is undoubtedly helpful for many litigants unfamiliar with the dynamics of medical negligence litigation, and if you’ve been harmed by the possibly negligent conduct of a medical provider, you should consider finding counsel knowledgeable about Florida medical negligence law. The South Florida medical malpractice attorneys at Frankl & Kominsky have represented many injured Florida patients, and we are prepared to offer you the benefits of their skill. If you’ve recently been injured, do not hesitate to contact us for a free case consultation.