August 10, 2019

The First District Court of Appeal State of Florida (“Florida Appellate Court”) held in its opinion filed on July 15, 2019: “an allegation of medical negligence subject to the statutory requirements of chapter 766, Florida Statutes, cannot form the basis of a claim under section 415.1111, Florida Statutes.”

Florida Medical Malpractice Claims

Chapter 766, Florida Statutes, provides the exclusive remedy for claims arising out of the rendering of, or the failure to render, medical care or services. § 766.106(1)(a), Fla. Stat. (2018). To determine if a claim asserts medical malpractice, a court will look to whether the plaintiff must rely upon the medical negligence standard of care as set forth in section 766.102(1).

Cause Of Action For Vulnerable Adult

Section 415.1111, Florida Statutes, provides a cause of action for a vulnerable adult against “any perpetrator” where the vulnerable adult has been “abused, neglected, or exploited as specified in this chapter.” (“A vulnerable adult who has been abused, neglected or exploited as specified in this chapter has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect or exploitation.”)

The Florida Appellate Court held: “If the claim involves medical negligence which requires compliance with the pre-suit procedures and other provisions of chapter 766, the claim cannot be asserted under chapter 415; if the claim asserts non-medical negligence or criminal conduct, it can be asserted under chapter 415.”

The Florida Appellate Court reasoned that the vulnerable adult statute refers to “perpetrators” for a reason: “The entire legislative scheme of chapter 415 is to punish “perpetrators” of abuse, neglect or exploitation, not medical negligence.” The Florida Appellate Court continued: “The entire legislative scheme of chapter 415 is to protect vulnerable adults, not to provide a duplicative remedy for medical malpractice. The rationale is apparent from the very first section of the act, 415.101, Florida Statutes, which specifically expresses legislative intent: “The Legislature recognizes that there are many persons in this state, who, because of age or disability, are in need of protective services.””

The Florida Appellate Court continued: “this chapter does not intend to criminalize health care providers or anyone else who may fail to report medical negligence, the subject of an entirely different chapter with includes extensive procedures, investigations, and protections, including pre-suit investigations (“Presuit investigation of medical negligence claims and defenses . . . shall apply to all medical negligence claims and defenses.” § 766.203(1), Fla. Stat. (2018)).”

The Florida Appellate Court explained: “the complex issues of medical negligence under chapter 766 cannot be permitted to be litigated as a parallel suit under section 415.1111, Florida Statutes, designed to address a completely different type of wrongful conduct … section 415.1111, Florida Statutes, states that the “remedies provided in this section are in addition to and cumulative with other legal and administrative remedies provided to a vulnerable adult.” But this sentence cannot be logically interpreted to mean that a claim of medical negligence can be transformed into a claim against a nurse or doctor as a “perpetrator” of abuse, neglect, or exploitation.”

The Florida Appellate Court advised, however: “We do not hold that claims under section 415.1111, Florida Statutes, could never be asserted against a hospital or health-care provider … such claims could be maintained for non-medical abuse or neglect. For example, if a nurse or doctor committed a sexual offense against a vulnerable adult or attempted to harm a vulnerable adult such a claim could be asserted under section 415.1111, Florida Statutes.”

Source Specialty Hospital-Gainsville, Inc. v. Barth, No. 1D18-511.

If you or a loved one may have suffered serious harm as a result of medical negligence in Florida or in another U.S. state, you should promptly find a Florida medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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