Most lawyers are going to file a possible medical malpractice action in 2 or more counts if it is possible that a court or appellate court might consider that the claimant was required to comply with the requirements of the Florida Medical Malpractice Act. The period of the prosecution of a medical malpractice action is generally only 2 years from the date the claimant knew or should have known of the malpractice.
Stated differently, if the Court determines that the act or omission at issue will be decided by “whether the claim relies on the application of the medical malpractice standard of care” then the case will sound in medical malpractice not simple or ordinary negligence.
The risk is great not to anticipate that the court could dismiss the lawsuit and the time for preserving the medical malpractice claim has passed.
In this particular case the claimant was very fortunate the appellate court agreed with the claimant’s lawyer’s position on ordinary negligence.
In this recent case, the claimant visited visited Dr. Zachos, a urologist, at his office to have a catheter removed. In the examination room, the doctor provided a step for the claimant to use to ascend onto the examination table. The doctor then moved the step away and performed the procedure.
After the procedure, the doctor told claimant to go to the front desk and schedule another appointment for the following week. The doctor then left the examination room. Claimant began to descend from the examination table, but because the step had been removed, she fell onto the floor.
She alleged that the failure to replace the step created a known dangerous condition, and the doctor knew or should have known that he had not replaced the step for her. She claimed she suffered serious and permanent injuries due to her fall.
When evaluating whether a complaint sounds in ordinary or medical negligence, courts must determine from the allegations “whether the claim arises out of the rendering of, or the failure to render, medical care or services.” Doe v. Baptist Primary Care, Inc., 177 So. 3d 669, 674 (Fla. 1st DCA 2015) (citations omitted); see also § 766.106(1)(a), Fla. Stat. (2011) (defining a claim for medical negligence or malpractice). The core inquiry is “whether the claim relies on the application of the medical malpractice standard of care.” Holmes Reg’l Med. Ctr., Inc. v. Dumigan, 151 So. 3d 1282, 1286 (Fla. 5th DCA 2014). Merely “labeling allegations as ‘ordinary negligence’ is not dispositive.” Shands Teaching Hosp. & Clinics, Inc., v. Estate of Lawson, 175 So. 3d 327, 331 (Fla. 1st DCA 2015) (en banc). “Courts must look beyond the legal labels urged by plaintiffs and ‘must[ ] apply the law to the well-pleaded factual allegations and decide the legal issue of whether the complaint sounds in simple or medical negligence.’ ” Id. (alteration in original) (quoting Dr. Navarro’s Vein Ctr. of Palm Beach, Inc. v. Miller, 22 So. 3d 776, 778 (Fla. 4th DCA 2009)).
As we have explained before, the mere fact that “a negligent act occurred in a medical setting doesn’t make it medical negligence.” Lawson, 175 So. 3d at 332; see e.g., Tenet St. Mary’s Inc. v. Serratore, 869 So. 2d 729 (Fla. 4th DCA 2004) (medical center employee inadvertently kicking a patient); Lake Shore Hosp., Inc. v. Clarke, 768 So. 2d 1251 (Fla. 1st DCA 2000) (patient’s slip and fall in hospital room); Broadway v. Bay Hosp., Inc., 638 So. 2d 176 (Fla. 1st DCA 1994) (collapse of hospital bed). We have described ordinary negligence as something jurors can resolve “by referring to common experience,” whereas medical negligence requires “the help of experts to establish what is acceptable, appropriate, and prudent” because jurors cannot determine through “common experience” whether medical standards of care were breached. Lawson, 175 So. 3d at 332-33.
While there is no doubt that the line between ordinary and medical negligence may at times be difficult to draw, at this stage of the proceedings we do not believe claimant’s claim sounds in medical negligence. Jurors can use their common experiences to 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 to sit down. We note that our decision today rests solely on the allegations within the four corners of the amended complaint and should not foreclose a later challenge should the case morph into a medical negligence claim. Because we conclude that the amended complaint alleges a claim of ordinary negligence, we reverse and remand for further proceedings.