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Ordinary Negligence or Medical Malpractice

Guy DiMartino Nov. 13, 2017

Not every injury claim that happens in a hospital or a doctor’s office is medical malpractice. However, one of the tricks of insurance defense lawyers is to take that position. We see it all the time in practice. A patient falls down in a hospital and the hospital’s lawyer beats their chest and says this a malpractice claim.

Every Claim to the Defense Lawyer is Malpractice

You may be asking, what difference does it make if a claim is considered a routine (ordinary) personal injury claim or malpractice. The answer is about $20,000 in additional costs.

If a claim is considered a malpractice claim, you have to follow the steps in Florida’s Medical Malpractice Act. The steps include a 3-month pre-suit period, which can only begin with an expert witness’ affidavit supporting the claim. This means before making the claim, you have to retain an expert witness, who will review all the medical information, and then provide an affidavit stating the claim has merit.

The Story of a Recent Case

You may be thinking that Defendant healthcare providers just don’t take this position, and I just need something to write about – Think Again! On November 6, 2017, the First District of Court of Appeal had to rule on this very issue in Vance v. Okaloosa-Walton Urology.

Here’s what happened! Ms. Vance went to the urologist’s office to have a catheter removed. A catheter is a plastic tube that is placed in the bladder to help a patient urinate. She is in the examination room; the doctor puts a stool out to assist the patient onto the exam table. Once the patient is on the exam table, he removes the stool. The doctor does his business, tells Ms. Vance to get dressed, and go to the front desk to make a follow-up appointment. Pretty routine stuff. However, the doctor forgot to place the stool back under the exam table. The patient tries to get down, falls and hurts herself.

The patient files a lawsuit

Ms. Vance files a lawsuit against the urology office under the theory of simple or ordinary negligence (premises liability). The complaint was simple, the premises was dangerous because the doctor removed the step stool and didn’t replace the stool.

The Clinic’s insurance company lawyer moves to dismiss the case claiming that all the requirements of the medical malpractice law weren’t followed. The trial court dismisses the patient’s complaint saying that she had to comply with the medical malpractice law.

The patient’s lawyer appeals the case and the appellate court says NO-NO! Not at this time and it reinstates the case. The court gives us some good language:

As we have explained before, the mere fact that a negligent act occurred in a medical setting doesn’t make it medical negligence.

We do not believe that Ms. Vance’s claim sounds in medical negligence.

Jurors can evaluate the act of placing and removing a step used by someone to get on and off a table, just as they could evaluate the act of pulling a chair out from under someone about the sit down.

The court also looked at some other cases where insurance company lawyers took the position that a patient should have complied with the medical malpractice rules and courts have said, No – this is ordinary negligence:

  • Medical center employee inadvertently kicking a patient;

  • Patient’s slip and fall in a hospital room;

  • A hospital bed collapsing;

This is one of the reasons why injured folks need lawyers to represent them in their claims. Insurance companies and their lawyers will sometimes take positions to stop an injured person from receiving the compensation that they deserve.

I am not a betting person, but I would think that if we take a look at the trial court’s docket in six months, this matter will be settled.