Florida Appellate Court Rules Medical Malpractice Pre-Lawsuit Requirements Not Necessary in a Wrongful Death Action

1334532_ambulance.jpgThe Fifth District Court of Appeal of Florida recently reviewed a trial court’s dismissal of a wrongful death action for plaintiff’s failure to comply with the pre-lawsuit requirements for medical malpractice cases. In medical malpractice cases, a plaintiff must meet certain requirements, such as investigating before filing suit and giving notice to prospective defendants before filing suit. This case ended well for the plaintiff. However, it is a good example of why it’s so important to hire a personal injury attorney with multiple areas of experience if a loved one is killed in connection with a health care provider or in a context that might give rise to a medical malpractice claim. The rules that must be followed in contexts that overlap multiple practice areas can be tricky to navigate on your own.

The facts giving rise to a lawsuit arose when a 25-year-old pregnant woman visited the hospital complaining of pain. The hospital moved her to the defendant, a behavioral health facility, that evening, but when she arrived she was still complaining of abdominal pain. She was in distress, but over the next two days, the facility acted (and failed to act) in ways that led to her death.


The plaintiff filed a wrongful death claim, but specifically stated he was not pursuing damages under the Medical Malpractice Act (MMA). The defendant moved to dismiss the suit as one for medical malpractice. It claimed he had failed to follow the pre-lawsuit requirements imposed by the MMA mentioned above.

The trial court agreed with the defendant and dismissed the plaintiff’s complaint with prejudice. It ruled that the claim arose from the defendant’s failure to respond appropriately to abdominal pain and that therefore it was alleging medical negligence and could not avoid the pre-lawsuit requirements of the MMA, by alleging wrongful death instead.

The plaintiff appealed. He argued that claiming only wrongful death violations under the Baker Act meant that he did not need to follow the pre-lawsuit requirements of the MMA. He also stated that the defendant was not a health care provider, so the MMA would not apply. The appellate court reasoned that because the pre-lawsuit requirements placed a restriction on one’s constitutional right of access to courts, the applicability of the requirements had to be strictly construed to permit access when possible. In other words, the claim must be a medical malpractice claim and the defendant must be a health care provider.

In this case, the appellate court explained, the plaintiff’s case did not rely on the application of a medical malpractice standard of care. Rather it alleged violations of the standard of care prescribed by the Baker Act for wrongful death claims. The court acknowledged there might be overlap between the standards of care, but again emphasized that the pre-lawsuit requirement needed to be interpreted narrowly.

The appellate court also explained that the MMA defined “health care provider” in several ways, and in this case, the defendant did not meet the definitions. The defendant was a mental health facility. It was neither expressly listed in the definitions, nor did it loosely fit the definitions. The court concluded that after looking at the allegations in the light most favorable to the plaintiff, the defendant had failed to establish that it was a health care provider. Therefore, the wrongful death suit was wrongly dismissed and the plaintiff could continue to sue.

Those who have lost a loved one due to another person or institution’s negligence should call the experienced South Florida wrongful death attorneys of Friedman, Rodman & Frank for a consultation at 877-448-8585. We are available 24 hours a day, seven days a week and offer free and confidential consultations.

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Florida Workers’ Comp Limitation Ruled Unconstitutional, South Florida Personal Injury Lawyers Blog, April 26, 2013
Florida Appellate Court Overturns Summary Judgment on Minor’s Medical Malpractice Claim, South Florida Personal Injury Lawyers Blog, April 22, 2013

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