A recent Florida Supreme Court Opinion distinguishes cases of medical malpractice from ordinary negligence. This ruling will be helpful to plaintiffs injured in quasi-medical incidents in establishing their case is not subject to medical malpractice laws.
Medical Malpractice vs. Ordinary Negligence – Why Does it Matter?
Whether a claim arises from ordinary negligence or medical malpractice has significant implications . . .
National Deaf Academy, LLC v. Townes, No. SC16-1587 (Fla. Apr. 26, 2018).
In Florida, medical malpractice claims have a strict 2 year statute of limitations period, while cases involving ordinary personal injury have a 4 year statute of limitations. Additionally, Florida medical malpractice cases involve a mandatory pre-suit period and an expert affidavit of merit.
This detailed pre-suit process is not required in general negligence cases.
For these reasons, it is preferable that an injury claim sounds in ordinary negligence as opposed to medical malpractice.
Notable Distinction in Florida Medical Malpractice Wrongful Death Cases:
Labels (and Survivors) Matter!
The distinctions between general liability and medical malpractice are more pronounced in a wrongful death case. In Florida, the only statutory survivors that can bring a medical malpractice cause of action are a spouse or a child under the age of 25. In a general negligence case, any adult child can bring a wrongful death claim, regardless of their age.
Townes v. National Deaf Academy
The case of Townes v. National Deaf Academy involves a minor child named Cinette Perry. Cinette resided at the National Deaf Academy which is licensed under Chapter 394 as a residential treatment facility. The facility holds itself out as a specialized school for children with underlying behavior problems. Cinette Perry was previously diagnosed with bipolar disorder and was accepted into the facility for management of this condition.
Facts Giving Rise to the Case
On the day in question, Cinette Perry was misbehaving. She was allegedly throwing rocks, threatening damage to facility property. She was asked to stop, and allegedly, she refused. As a result, facility staff performed a forceful take-down maneuver on Cinette which was later referred to as a “TACT protective hold.” She was injured in the take down and taken to the hospital where she underwent an amputation of her leg.
A subsequent facility negligence case was brought by Cinette for the loss of her leg.
Med Mal vs. Ordinary Negligence – How to Classify the Take Down Maneuver
This take-down was performed by two nurses. The TACT protective hold was supposedly developed in a care plan by a psychiatrist. Therefore, the National Deaf Academy argued, this was clearly a case for medical malpractice. The trial court erroneously agreed and dismissed the case with prejudice.
However, upon deposing the staff responsible for performing the “TACT protective hold” it was discovered that the move could be performed by any senior staff member. This is an important distinction, as the move could be done by a sign language interpreter, a mental health technician, etc., all of whom are not medical providers under Florida’s Chapter 766.
The Trial Court’s Ruling
The trial court agreed with defense counsel’s argument and granted a Motion for Summary Judgment in favor of the NDA.
The Fifth District Court of Appeal Ruling
On appeal, the Fifth District reversed the trial court and held as follows:
We find that on the record before this court, the use of the TACT
protective hold on Perry was not for treatment or diagnosis of any
condition, was not employed to meet Perry’s daily needs during care,
and did not require medical skill or judgment as non-medical staff
were taught the procedure and were authorized to decide whether to
employ it. We find that Counts I and II assert claims sounding in
ordinary negligence, rather than medical malpractice. Accordingly,
we reverse the summary judgment entered on Counts I and II.
Supreme Court of Florida Rules National Deaf Academy’s Take-Down was Not Medical Malpractice, but Ordinary Negligence
The Supreme Court of Florida accepted jurisdiction of the case because the NDA argued that there was a conflict with Shands Teaching Hospital & Clinics, Inc. v. Estate of Lawson, 175 So. 3d 327 (Fla. 1st DCA 2015). In Shands, the First District held that a psych patient stealing an employee’s un-monitored badge and keys was a claim for medical malpractice. The Supreme Court accepted the cases on the conflicting opinions of Townes and Shands.
Florida’s highest court ultimately approved of the Fifth DCA’s opinion in Townes, disapproving of Shands, and held:
In this case, because the administration of a TACT hold was not directly related to medical care or services, which require the use of professional judgment or skill, Townes’s claim does not arise from medical malpractice, and her lawsuit is not barred by the two-year statute of limitations or her failure to comply with the presuit requirements set forth in chapter 766.
The Townes opinion should be cited by counsel for plaintiffs in arguing that a claim is not medical malpractice, simply because the tortfeasor is a medical provider.
Questions on Whether a Case is Medical Malpractice or Regular Negligence?
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