Under Florida Statutes section 766.106, Florida medical malpractice plaintiffs must comply with certain additional procedural requirements. For example, a Florida medical malpractice plaintiff must provide pre-suit notice to the defendants, including a list of all of their medical providers for the two-year period prior to the incident as well as all providers seen subsequent to the incident. In addition, medical malpractice plaintiffs are subject to a shorter statute of limitations and must also present an expert affidavit in support of their claim.These additional requirements, while burdensome, may not seem like an insurmountable hurdle. However, in reality, defendants often attempt to raise a plaintiff’s failure to comply with the additional requirements as a defense after the lawsuit has been filed. Thus, a defendant may be successful in barring a plaintiff’s ability to recover damages by establishing that the plaintiff failed to comply, and by that point, it may be too late because the statute of limitations has expired.
Thus, the determination of whether a case is one of traditional negligence or medical malpractice is an important one. In a recent case, a state appellate court issued an opinion discussing the distinction between the two types of cases and which types of cases are likely to be considered ones involving claims of medical malpractice.
The Facts of the Case
The plaintiff was a resident at an inpatient psychiatric facility. One day, another resident living in the facility beat the plaintiff with a metal handrail that he had removed from the wall. The plaintiff sustained serious injuries as a result of the attack, and he filed a personal injury lawsuit against the facility, claiming it failed to provide adequate security.
The facility filed a motion for summary judgment, arguing that the plaintiff’s claims were those of medical malpractice, and since he failed to comply with the pre-suit notice requirements, the case should be dismissed. The lower court agreed, dismissing the plaintiff’s case, and the plaintiff appealed.
The Appellate Court’s Decision
On appeal, the court began by affirming that the distinction between cases involving traditional negligence and those involving claims of medical malpractice is an important one, since medical malpractice claims are subject to additional “statutory obstacles.” From there, the court went on to explain that, in order for a claim to be considered one of medical malpractice, the allegations “must be directly related to medical care or services, which require the use of professional judgment or skill.”
The court reversed the lower court’s judgment. In so doing, the court surveyed several other recent cases from other courts across Florida, acknowledging that this area of law is not yet settled. However, the court ultimately held that the plaintiff’s case was not “directly related to [the] hospital’s medical care or services, which would require the use of professional judgment or skill.”
Have You Been Injured in an Accident Occurring in a Medical Setting?
If you or a loved one has recently been a victim of Florida medical malpractice, the attorneys at the South Florida law firm of Friedman, Rodman & Frank can help. We represent clients in traditional negligence claims as well as Florida malpractice claims, and we are keenly familiar with the differences between the two. We take care to ensure that our clients’ cases are not subjected to additional and unnecessary hurdles, and, when additional requirements are necessary, we ensure our clients’ cases comply. To learn more, call 877-448-8585 to schedule a free consultation with an attorney today.
More Blog Posts:
Court Discusses “Coming-and-Going” Rule as It Pertains to Employer Liability, South Florida Personal Injury Lawyers Blog, published July 19, 2018.
Jury Holds Railroad Company Liable for Fatal Train Accident, Court Upholds $10.4 Million Verdict, South Florida Personal Injury Lawyers Blog, published August 8, 2018.