PBCBA BAR BULLETINS pbcba_bulletin_june 2018 | Page 13

PERSONAL INJURY C o r n e r
WHEN IS A CLAIM A MEDICAL MALPRACTICE CLAIM
TED BABBITT
The Supreme Court of Florida in the
recent case of The Nat’l Deaf Academy,
LLC, v. Townes, 43 Fla. L. Weekly S193 (Fla.
2018) resolved the conflict between the
underlying case of Townes v. Nat’l Deaf
Academy, LLC, 197 So. 3d 1130 (Fla. 5th DCA
2016) and the Fourth District case of Shands
Teaching Hospital & Clinics, Inc. v. Estate of
Lawson, 175 So. 3d 327 (Fla. 1st DCA 2015).
The statutory definition of medical
negligence requires first that the claim
arise out of the rendering or failing to
render medical care and that the negligent
act represent a breach of the prevailing
standard of care. In Silva v. Southwest
Florida Blood Bank, Inc., 601 So. 2d 1184
(Fla. 1992) the Supreme Court held that in
determining whether the claim sounds
in medical malpractice the Court must
The Townes case involved an amputation determine
which was made necessary because of
the allegedly negligent application of a
(1)Whether the action arose out of
restraining hold known as a TACT hold. The
‘medical . . . diagnosis, treatment, or
Plaintiff was a patient of the Deaf Academy
care,’ and (2) whether such diagnosis,
both because she was deaf and because
treatment, or care wasrendered by a
she had been diagnosed with bipolar
‘provider of health care.’
disease and was occasionally violent. In
Silva at 1186.
a violent episode in which the plaintiff
was shattering the windows with stones Several District Court opinions have
and pulling up wires and cables, a nurse added additional requirements for finding
decided to utilize a restraining hold and in that a claim is a medical malpractice
the process plaintiff dislocated her knee claim. In Joseph v. Univ. Behavioral LLC,
with the result that she needed an above the 71 So. 3d 913, 917 (Fla. 5th DCA 2011), the
knee amputation. The evidence showed District Court explained that in order to
that the TACT hold was designed to ensure be a medical malpractice claim, the claim
the safety of the patient and those around “must be directly related to the improper
her and was taught to both medical and application of medical services and the
nonmedical personnel at the Deaf Academy. use of professional judgment or skill.” In
The trial court granted a summary judgment Quintanilla v. Coral Gables Hospital, 941 So.
because of the failure of the plaintiff to 2d 468, 469 (Fla. 3rd DCA 2006), the Third
follow the presuit requirements of Chapter District stated the injury must be the direct
766 of the Florida Statutes and the Fifth result of receiving medical care from the
District reversed, holding that the TACT provider.
hold was not for treatment or diagnosis of
any condition and did not require medical Thus, not every act which occurs in a medical
skill or judgment and was a procedure that setting involves medical malpractice. In
was taught to nonmedical staff as well as Quintanilla, supra, the Third District held
medical staff.
that even though the serving of hot tea
was motivated by the medical decision
The Supreme Court, in affirming the Fifth that it would help the patient’s bronchitis
District, discussed an important rule. At and nasal condition, the service of that
S194
tea was not a medical act and when the
Because of the statutory restrictions
hot tea spilled on the patient the plaintiff
and requirements that apply only to
did not have to comply with the medical
medical malpractice claims, any “doubt”
malpractice requirements because the case
as to whether a claim is for ordinary
did not sound in medical malpractice.
negligence or medical malpractice
In Tenet St. Mary’s Inc. v. Serratore, 869 So.
should be “generally resolved in favor
2d 729, 730 (Fla. 4th DCA 2004), the Fourth
of the claimant.” J.B. v. Sacred Heart
District held that a claim arising out of
Hosp. of Pensacola, 635 So. 2d 945, 947
an injury to a dialysis patient where the
(Fla. 1994).
hospital employee inadvertently
PALMBEACHBAR.ORG
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kicked the patient’s foot in an attempt to
return a foot rest of the patient’s chair to the
upright position was an ordinary negligence
case and not a malpractice case.
In reviewing the conflict case, Shands,
supra, the First District found that when
a patient who was admitted to a locked
psychiatric unit escaped after an employee
left a badge and keys unattended resulting
in her making her way to a nearby highway
where she was hit and killed by a truck that
the claim sounded in medical malpractice.
The First District reasoned that the question
of whether to confine a patient to a locked
unit was a medical decision thus the leaving
of the keys was part of the medical decision
making.
This author has criticized the Shands
decision, reasoning that doctors and nurses
are not taught in medical or nursing schools
about how to lock up their keys and an
expert witness could not testify about that
subject as an expert. The dissent in Shands
agreed with that reasoning holding that
The clear import of these extensive
procedures [set forth in chapter
766] is to prevent frivolous second
guessing of health care providers in
their diagnosis of patients and their
method of treatment of patients. The
onerous procedures were not intended
to provide unnecessary obstacles
to injured parties attempting to
institute claims against health care
providers for simple carelessness.
Indeed, requirements of extensive
investigation and written medical
expert opinions would make no sense
in the context of simple careless acts,
such as carelessly leaving one’s keys
where a patient can get them.
Shands, supra, at 343 (Wolf, J., dissenting).
The Supreme Court agreed with Judge Wolf.
As we stated in Silva, “[i]n in the
absence of clear legislative intent to
the contrary, we are not at liberty to
construe” terms defined in chapter
766 “so as to deprive plaintiffs of
(continued on pg 22)