By Alex Stein
“Medical Malpractice or Ordinary Negligence?” is an issue that will stay on the courts’ agenda for long. See here, here, here, here, here, here, and here.
As I explained in these posts and in a foundational article on medical malpractice, categorizing a plaintiff’s action as “medical malpractice” rather than “ordinary negligence” determines whether it must satisfy rigid limitations and repose provisions, comply with special and costly requirements with regard to expert testimony, face the difficult burden of proving the defendant’s deviation from the medical profession’s customary practices and protocols, and suffice itself with the compensation amounts allowed by the statutory caps on damages.
A recent Florida court decision, Shands Teaching Hosp. & Clinics v. Estate of Lawson, — So.3d —- 2015 WL 5057325 (Fla. 5th DCA 2015), illustrates the centrality of this issue for suits complaining about a psychiatric hospital’s neglect.
This decision involved a patient locked in a psychiatric unit for safety reasons. The patient took an employee’s unattended keys and badge and run away from the hospital onto a nearby interstate highway, where she was struck and killed by a truck. The patient’s estate sued the hospital for her wrongful death. The suit alleged “ordinary negligence” and disavowed “medical malpractice.” The hospital moved to dismiss the suit for failure to comply with special pre-suit requirements for medical malpractice actions, but the trial court agreed with the estate.
The court of appeals reversed that decision. It explained that here, “the ordinary negligence claim cannot be taken at face value, because the breach allegedly arose from Shands’ failure in providing the signature psychiatric service offered by its specialty “locked unit”—confinement—which was the service that Ms. Lawson’s psychiatric condition especially required.” Hence, “the Estate’s claim sounds in medical negligence [because] the proof required in this case will inevitably involve the medical negligence standard of care, or ‘that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.’” (citing the applicable formulation of “medical malpractice” and relying on Robison v. Faine, 525 So.2d 903, 906 (Fla. 3d DCA 1987) (medical care standards apply where an unwatched, suicidal psychiatric patient escaped a bed restraint, exited onto the hospital’s roof, and fell); Young v. Bd. of Hosp. Dirs. of Lee Cnty., 426 So.2d 1080, 1081 (Fla. 2d DCA 1983) (medical care standards apply where a psychiatric patient escaped, ran into the streets, and was struck and injured by a car).
The court separated the estate’s suit from “negligence suits alleged in medical contexts [that] don’t implicate medical standards of care” (illustrated by Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468 (Fla. 3d DCA 2006) (spilling hot tea on a patient); Tenet St. Mary’s Inc. v. Serratore, 869 So.2d 729 (Fla. 4th DCA 2004) (inadvertently kicking a patient); Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251 (Fla. 1st DCA 2000) (slip and fall in a hospital); Broadway v. Bay Hospital, Inc., 638 So.2d 176 (Fla. 1st DCA 1994) (bed collapsed under a patient); Robinson v. W. Fla. Reg’l Med. Ctr., 675 So.2d 226, 227-28 (Fla. 1st DCA 1996) (categorizing a complaint that a hospital “negligently failed to maintain the premises … in a safe condition after an unsupervised patient with a violent history attacked the plaintiff … to be in effect a premises liability case arising out of a criminal attack by a third party” and emphasizing that the harm was “independent of any medical diagnosis, treatment, or care.”); Joseph v. University Behavioral LLC, 71 So.3d 913 (Fla. 5th DCA 2011) (categorizing a suit complaining about one psychiatric patient’s violent assault on another patient as sounding in ordinary negligence because “there [was no] evidence that [the victim’s] injuries resulted from any decision made in the course of [his] psychiatric treatment.”).
This decision was absolutely correct. The estate’s self-serving portrayal of its suit as “ordinary negligence” amounted to what was described by another Florida court as a “creative dance around the obvious.” Dr. Navarro’s Vein Ctr. of Palm Beach, Inc. v. Miller, 22 So.3d 776, 778 (Fla. 4th DCA 2009). Courts should not allow such “dances” to undercut the state’s regulation of medical malpractice actions.