Elderly woman being assisted to stand up and use a walker.

Under Florida law, the mere fact that a negligent act occurred in a medical setting does not make it medical negligence. The distinction is important, because vastly different laws and procedures apply to each class of claim. Most importantly, a condition precedent to bringing a medical negligence claim is compliance with the presuit screening and notice requirements set forth in section 766.106(2), Florida Statutes.

The Second and Fourth DCAs recently grappled with this issue, and reached opposite conclusions based upon the specific facts of each case.

In McManus v. Gamez (Fla. 2d DCA Aug. 7, 2019), a patient fell off a table during a visit for a neurological examination. At the time of the fall, the treating doctor and a staff member had left the patient alone on an examination table without sides. The trial court held that the claim sounded in medical negligence, and dismissed the patient’s lawsuit for failure to follow the presuit requirements.

The Second DCA reversed. The court began by noting that “medical negligence” is statutorily defined as “a claim, arising out of the rendering of, or the failure to render, medical care or services.” To determine whether a claim sounds in medical negligence, a court must consider whether the action arose out of medical diagnosis, treatment, or care; and whether such “diagnosis, treatment, or care” was rendered by a health care provider.

The Second DCA held that the patient’s claim was for ordinary negligence, because the patient’s treatment had been completed, and no health care providers were in the room assisting the patient off the table at the time of the incident. The Second DCA distinguished other cases deeming falls from hospital beds medical negligence, because those cases involved patients admitted into a hospital receiving active medical care.

However, the Fourth DCA reached the opposite conclusion in North Broward Hospital District v. Slusher (Fla. 4th DCA Aug. 21, 2019). In that case, a patient admitted to the hospital was classified as a fall risk. A nurse attempted to transfer the patient from a bed to use the bathroom. However, the nurse answered her phone while attempting the transfer, causing the patient to fall.

The hospital moved to dismiss the plaintiff’s complaint for failure to comply with the medical negligence presuit notice requirements. The patient successfully opposed the motion to dismiss, arguing that his allegations sounded in general negligence. The patient argued that the nurse’s actions did not involve professional skill or judgment.

The Fourth DCA granted the hospital’s petition for certiorari. The Fourth DCA held that the case sounded in medical negligence, because liability will be determined by analyzing the standard of care that applies to transferring “fall risk” patients from hospital beds.

Judge Taylor dissented, arguing that the routine task of assisting a patient out of bed is not an act directly related to medical care or services requiring the use of professional judgment or skill.

These cases illustrate that the distinction between ordinary negligence and medical negligence, especially in the context of patient falls, is vary narrow, and will depend greatly on the specific facts of each case.

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