PBCBA BAR BULLETINS pbcba_bulletin_june 2018 | Page 13

PERSONAL INJURY C o r n e r WHEN IS A CLAIM A MEDICAL MALPRACTICE CLAIM TED BABBITT The Supreme Court of Florida in the recent case of The Nat’l Deaf Academy, LLC, v. Townes, 43 Fla. L. Weekly S193 (Fla. 2018) resolved the conflict between the underlying case of Townes v. Nat’l Deaf Academy, LLC, 197 So. 3d 1130 (Fla. 5th DCA 2016) and the Fourth District case of Shands Teaching Hospital & Clinics, Inc. v. Estate of Lawson, 175 So. 3d 327 (Fla. 1st DCA 2015). The statutory definition of medical negligence requires first that the claim arise out of the rendering or failing to render medical care and that the negligent act represent a breach of the prevailing standard of care. In Silva v. Southwest Florida Blood Bank, Inc., 601 So. 2d 1184 (Fla. 1992) the Supreme Court held that in determining whether the claim sounds in medical malpractice the Court must The Townes case involved an amputation determine which was made necessary because of the allegedly negligent application of a (1)Whether the action arose out of restraining hold known as a TACT hold. The ‘medical . . . diagnosis, treatment, or Plaintiff was a patient of the Deaf Academy care,’ and (2) whether such diagnosis, both because she was deaf and because treatment, or care wasrendered by a she had been diagnosed with bipolar ‘provider of health care.’ disease and was occasionally violent. In Silva at 1186. a violent episode in which the plaintiff was shattering the windows with stones Several District Court opinions have and pulling up wires and cables, a nurse added additional requirements for finding decided to utilize a restraining hold and in that a claim is a medical malpractice the process plaintiff dislocated her knee claim. In Joseph v. Univ. Behavioral LLC, with the result that she needed an above the 71 So. 3d 913, 917 (Fla. 5th DCA 2011), the knee amputation. The evidence showed District Court explained that in order to that the TACT hold was designed to ensure be a medical malpractice claim, the claim the safety of the patient and those around “must be directly related to the improper her and was taught to both medical and application of medical services and the nonmedical personnel at the Deaf Academy. use of professional judgment or skill.” In The trial court granted a summary judgment Quintanilla v. Coral Gables Hospital, 941 So. because of the failure of the plaintiff to 2d 468, 469 (Fla. 3rd DCA 2006), the Third follow the presuit requirements of Chapter District stated the injury must be the direct 766 of the Florida Statutes and the Fifth result of receiving medical care from the District reversed, holding that the TACT provider. hold was not for treatment or diagnosis of any condition and did not require medical Thus, not every act which occurs in a medical skill or judgment and was a procedure that setting involves medical malpractice. In was taught to nonmedical staff as well as Quintanilla, supra, the Third District held medical staff. that even though the serving of hot tea was motivated by the medical decision The Supreme Court, in affirming the Fifth that it would help the patient’s bronchitis District, discussed an important rule. At and nasal condition, the service of that S194 tea was not a medical act and when the Because of the statutory restrictions hot tea spilled on the patient the plaintiff and requirements that apply only to did not have to comply with the medical medical malpractice claims, any “doubt” malpractice requirements because the case as to whether a claim is for ordinary did not sound in medical malpractice. negligence or medical malpractice In Tenet St. Mary’s Inc. v. Serratore, 869 So. should be “generally resolved in favor 2d 729, 730 (Fla. 4th DCA 2004), the Fourth of the claimant.” J.B. v. Sacred Heart District held that a claim arising out of Hosp. of Pensacola, 635 So. 2d 945, 947 an injury to a dialysis patient where the (Fla. 1994). hospital employee inadvertently PALMBEACHBAR.ORG 13 kicked the patient’s foot in an attempt to return a foot rest of the patient’s chair to the upright position was an ordinary negligence case and not a malpractice case. In reviewing the conflict case, Shands, supra, the First District found that when a patient who was admitted to a locked psychiatric unit escaped after an employee left a badge and keys unattended resulting in her making her way to a nearby highway where she was hit and killed by a truck that the claim sounded in medical malpractice. The First District reasoned that the question of whether to confine a patient to a locked unit was a medical decision thus the leaving of the keys was part of the medical decision making. This author has criticized the Shands decision, reasoning that doctors and nurses are not taught in medical or nursing schools about how to lock up their keys and an expert witness could not testify about that subject as an expert. The dissent in Shands agreed with that reasoning holding that The clear import of these extensive procedures [set forth in chapter 766] is to prevent frivolous second guessing of health care providers in their diagnosis of patients and their method of treatment of patients. The onerous procedures were not intended to provide unnecessary obstacles to injured parties attempting to institute claims against health care providers for simple carelessness. Indeed, requirements of extensive investigation and written medical expert opinions would make no sense in the context of simple careless acts, such as carelessly leaving one’s keys where a patient can get them. Shands, supra, at 343 (Wolf, J., dissenting). The Supreme Court agreed with Judge Wolf. As we stated in Silva, “[i]n in the absence of clear legislative intent to the contrary, we are not at liberty to construe” terms defined in chapter 766 “so as to deprive plaintiffs of (continued on pg 22)