Whether a claim arises out of medical negligence and is subject to the presuit screening requirements of Chapter 766 of the Florida Statutes is a question legal practitioners and courts alike have struggled with for years.
In April 2018, the Florida Supreme Court issued an opinion which provides clarity and guidance in making this determination.
Historically, to bring a medical negligence claim in Florida, potential plaintiffs have had to incur the expense of securing an affidavit from a qualified medical professional attesting to a deviation from the standard of care, under a two-year statute of limitations. Healthcare providers largely viewed this presuit screening requirement as an important safeguard in preventing non-meritorious claims.
However, because this process requires a significant expenditure, which can far exceed that of an ordinary negligence claim, many attorneys representing plaintiffs have been reluctant to classify a claim as a medical negligence claim. This allows them to avoid compliance with the presuit screening requirements and affords a four-year statute of limitations. Moreover, conflicting appellate court decisions as to when a claim arises out of the rendering or failure to render medical care and services has only muddied the waters.
The Florida Supreme Court was called on to determine when a negligence claim arises out of the “rendering of, or the failure to render, medical care or services” in the case of National Deaf Academy, LLC v. Townes.
In this case, a resident was injured during a restraint. The court said while the restraint was included as an intervention in the resident’s care plan, the restraint could be performed by any member of the staff. Although the resident was injured when a registered nurse performed the restraint, any member of the staff, including unlicensed staff such as a sign language interpreter trained on the restraint process, could have performed the restraint.
The court held that simply because a registered nurse performed the restraint, it did not turn the claim from an ordinary negligence claim into a medical negligence claim. The court contrasted these claims with one where an injury arose out of the application of excessive pressure while using mammographic equipment, which caused one of the claimant’s breast implants to rupture, and where a patient was injured while connected to physical therapy equipment. In each of those instances, the injury was sustained as a direct result of medical care, which required the use of professional judgment or skill.
The court held that for a claim to sound in medical malpractice, the act from which the claim arises must be directly related to medical care or services, which require the use of professional judgment or skill. The key is whether the act is one which will require expert testimony as to the standard of care as opposed to the jurors determining through common experience whether the actor breached relevant standard of care.
The inquiry for determining whether a claim sounds in medical negligence is two-fold and requires the court to determine (1) whether the action arose out of “medical…diagnosis, treatment, or care,” and (2) whether such diagnosis, treatment, or care was rendered by a healthcare provider (Silva v Southwest Florida Blood Bank, Inc.).
The injury must be a direct result of receiving medical care or treatment by a healthcare provider. As the Florida Supreme Court appropriately noted, merely because a wrongful act occurs in a medical setting does not mean that it involves medical malpractice.
Examples of acts which constitute ordinary negligence as opposed to medical negligence include:
- A nurse practitioner spilling scalding hot tea on a patient who arrived at the hospital complaining of a cough, shortness of breath, bronchitis and nasal congestion. This is an ordinary negligence claim, as the act of serving hot tea did not amount to a medical service. There was no medical standard for the serving of hot tea, and thus the claimant was not required to comply with the presuit screening requirements.
- A claim arising out of an injury sustained by a dialysis patient when a hospital employee inadvertently kicked the patient’s foot in an attempt to return the foot rest of the patient’s chair to the upright position. This is also an example of an ordinary negligence claim. The testimony of a medical expert as to how to return a chair to an upright position would not be required.
- A further example of this is a psychiatric hospital employee’s decision not to separate patients resulting in a patient being punched in the face.
As a result of the Florida Supreme Court’s opinion in National Deaf Academy, LLC v. Townes, claims that do not arise out of the act of providing medical services and do not involve the use of professional judgment and skill will be treated as ordinary negligence claims. These claims are subject to a four-year statute of limitations and do not require the claimant to incur the expense of obtaining an affidavit from a qualified medical expert attesting to a deviation from the standard of care and causation.
We can expect to see more plaintiff attorneys attempting to characterize claims which arise in a healthcare setting as ordinary negligence opposed to medical malpractice. This will require the defense team to scrutinize the claim carefully to determine whether the act giving rise to the claim truly sounds in ordinary negligence or whether it arises out of the rendering of, or the failure to render, medical care and services and involved the use of professional judgment or skill.
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