The District Court of Appeal of Florida Second District (“Florida Appellate Court”) held in its opinion filed on August 7, 2019: “We thus conclude that jurors can use their common experience to determine whether, after a medical diagnostic test has been completed, the act of leaving an elderly person on an examination table without side railings constitutes a negligent act.”
The Florida Appellate Court stated: “The trial court erred by concluding that [the plaintiff’s] claim was grounded in medical negligence and thus incorrectly determined that dismissal was warranted due to [the plaintiff’s] failure to abide by the presuit requirements set forth in section 766.106(2) within the two-year statute of limitations applicable to medical negligence claims. Cf. § 95.11(4)(b), Fla. Stat. (2014). We therefore reverse the order dismissing [the plaintiff’s] complaint with prejudice and remand for further proceedings. In doing so, however, we note that our decision rests solely on the four corners of [the plaintiff’s] complaint. Our opinion should not be read to foreclose a later challenge should the case morph into one grounded in medical negligence.”
The plaintiff had alleged in his complaint that during an appointment for neurological testing on July 1, 2013, the defendant doctor and defendant nurse left the room after the testing was completed and that he was left alone on an examination table “without sides.” The plaintiff further alleged that he fell from the table striking his head, losing consciousness, and suffering a concussion.
The defendants filed their first motion to dismiss, arguing in part that the plaintiff had failed to comply with the presuit screening and notice requirements set forth in chapter 766. The plaintiff responded by filing a request to file the presuit screening & notice requirements or, in the alternative, to have the case be accepted as an ordinary negligence case. The plaintiff subsequently filed a motion to amend his complaint, asking to change his allegations from sounding in medical negligence to ordinary negligence, arguing that because the defendants were not rendering medical care at the time he fell off the table, a claim sounding in ordinary negligence was more appropriate. The defendants filed their second motion to dismiss, which was granted by the trial court. The plaintiff appealed.
Florida Appellate Court Opinion
The Florida Appellate Court stated that compliance with the presuit screening and notice requirements set forth in section 766.106(2) is a condition precedent to filing a Florida medical malpractice action and that failure to comply is a reason to dismiss a medical malpractice complaint. However, the mere fact that a negligent act occurred in a medical setting does not make it medical negligence.
A claim for medical malpractice or medical negligence has been defined by the Florida Legislature as a claim arising out of the rendering of, or the failure to render, medical care or services. Proving a medical malpractice claim requires establishing that the allegedly negligent act represented a breach of the prevailing professional standard of care, as testified to by a qualified medical expert. In order to determine whether a claim is one grounded in medical malpractice, a court must consider (1) whether the action arose out of medical diagnosis, treatment, or care, and (2) whether such diagnosis, treatment, or care was rendered by a provider of health care. 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.
In the present case, the plaintiff “had not been admitted into a hospital, was not currently undergoing any sort of treatment, and was not in the process of either being assisted or instructed to do something by health care providers.” “Based on the allegations of the current complaint, it is unknown whether [the plaintiff] had been instructed to get down from the table by [either defendant] before they left the room or whether he fell after deciding to get down from the table on his own accord. However, any doubt about whether the claim sounds in ordinary negligence must be resolved in favor of [the plaintiff] … We thus conclude that jurors can use their common experience to determine whether, after a medical diagnostic test has been completed, the act of leaving an elderly person on an examination table without side railings constitutes a negligent act.” Ordinary negligence is something jurors can resolve by referring to common experience, whereas medical negligence requires the help of experts to establish what is acceptable, appropriate, and prudent because jurors cannot determine through common experience whether medical standards of care were breached.
Source McManus v. Gamez, Case No. 2D18-2371.
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