PBCBA BAR BULLETINS pbcba_bulletin_Dec. 2019 | Page 20

PERSONAL INJURY CORNER
MORE OF WHEN IS MALPRACTICE MALPRACTICE
TED BABBITT
In the Nat’l Deaf Acad., LLC v. Townes , 242 So.
3d 303 (Fla. 2018) our Supreme Court changed
the rules on determining when a case is not
a malpractice case. In that case the Supreme
Court decided that attempting a restraining
hold on a mentally ill patient did not directly
relate to medical care or services and, therefore,
sounded in ordinary negligence rather than
malpractice obviating the necessity of using
Fla. Chapter 766 Presuit Screening. Nat’l Deaf
Acad. holds:
Because of the statutory restrictions
and requirements that apply only
to medical malpractice claims, any
“doubt” as to whether a claim is
for ordinary negligence or medical
malpractice should be “generally
resolved in favor of the claimant.” J.B.
v. Sacred Heart Hosp.Of Pensacola, 635
So. 2d 945, 947 (Fla. 1994).
Furthermore, at 197, the Supreme Court
concluded:
Limiting medical malpractice claims
to those that are directly related
to medical care or services, which
require the use of professional
judgment or skill, ensures that
plaintiffs bringing claims of ordinary
negligence are not subjected to the
complex pre-suit procedures for
medical malpractice claims, while
still advancing the Legislature’s policy
goals of encouraging early settlement
and screening out frivolous medical
malpractice claims.
(Emphasis
supplied).
The Supreme Court’s opinion in Nat’l Deaf
Acad., LLC v. Townes announced a sea
change in the way cases are reviewed
relative to whether or not they are
medical malpractice cases. In Simmons
v. Jacksonville Memorial Hospital, 43 FLW
D1749 (3rd DCA 2018) the Third District
determined that a resident psychiatric
patient who was beaten by another patient
at the hospital was not required to follow
the strictures of a medical malpractice
case. In deciding that case, the District
Court quoted Nat’l Deaf Acad. as follows:
[W]e hold that for a claim to sound
in medical malpractice, the act
from which the claim arises must
be directly related to medical care
or services, which require the use
of professional judgment or skill.
This inquiry involves determining
whether proving the claim requires the
plaintiff to establish that the allegedly
negligent act represented a breach of
the prevailing professional standard
of care, as testified to by a qualified
medical expert.” Townes, 242 So. 3rd at
311-312 (quoting §766.102(1), Fla. Stat.
(2013)).
In Simmons at 1750, the Third District held
In approving the Fifth District, the
Florida Supreme Court focused not
only on the standard of care implicated
by the claimant’s allegations, but
also upon the actual act causing the
claimant’s damages . . . in sum, the
Court determined that the plaintiff’s
claims sounded in ordinary negligence
because, for a negligence claim to be a
medical malpractice claim, “the act
from which the claim arises must
be directly related to medical care
or services, which require the use
of professional judgment or skill.”
(emphasis by the Third District).
This being the current law, it is hard to
understand the decision in North Broward
Hospital District d/b/a Broward Health
Coral Springs v. Slusher , 44 Fla. L. Weekly
D2126 (4th DCA Aug. 21, 2019). That case
involved a nurse who allegedly caused
a patient designated as a fall risk to fall
while helping him out of his hospital bed
because the nurse assisting him answered
her phone in the process rather than attend
the patient. The Fourth District cites
with approval Nat’l Deaf Acad., supra, but
nevertheless holds “the alleged exercise
of professional judgment here, while
arguably also involving common sense,
will depend on the standard of nursing care
in transferring a patient from the hospital
bed.
The dissent is critical of the Fourth
District’s analysis stating:
PBCBA BAR BULLETIN
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The routine task of assisting a patient
out of bed is not an act directly related
to medical care or services requiring
the use of professional judgment or
skill. . . . the plaintiff’s claim here is
not that the nurse used an improper
procedure or applied improper pro-
fessional judgment when helping
him out of bed. Instead, the plaintiff’s
theory of liabil-ity is that the nurse
answered her phone and dropped
him while helping him out of bed. The
nurse’s alleged decision in this case to
stop assisting the plaintiff in order to
answer the phone cannot be deemed
an act requiring the use of professional
judg-ment or skill.
It is clear that under Nat’l Deaf Acad., supra,
the operative question is whether an expert
will have to be called for the jury to properly
understand the issues involving the nurse’s
negligence. It is hard to imagine that a
nurse is taught in school that she requires
professional judgment to decide whether
or not to answer a phone while holding on
to a patient who is deemed a fall risk. What
kind of expert would give that testimony?
An expert schooled in determining
whether a phone call is important enough
to answer while you are in the middle of
helping someone who cannot stand on
their own? If this happened outside of a
hospital, there wouldn’t be any question but
that it involved simply ordinary negligence
and no expert would need to be called. The
jury is certainly capable of deciding that
you don’t answer a phone while you are in
the middle of an important task without
the need for expert testimony. While it is
not the purpose of this article to editorially
comment on decisions of our District Court
of Appeal, it is very hard to understand this
decision in light of the law contained in
Nat’l Deaf Academy, supra .
NOTE: BECAUSE A NUMBER OF PEOPLE HAVE
REQUESTED COPIES OF PAST ARTICLES, A
COMPILATION OF THESE ARTICLES IS NOW
AVAILABLE TO MEMBERS OF THE PALM
BEACH COUNTY BAR ASSOCIATION, FREE
OF CHARGE, BY CALLING [phone].