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 20 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 (561) 684-2500.