Line Between Medical Malpractice and Ordinary Negligence is Not Always so Clear

Florida law has a very complex and often expensive pre-suit process for anyone who seeks to sue for medical malpractice. The pre-suit requirements are mandatory, and must be strictly complied with. But in many cases, it may not be so clear whether an injury was caused by medical malpractice or not. If that question is answered incorrectly, the result can be devastating for a case.

The Pre-Suit Requirements

If someone believes they have been a victim of medical malpractice, notice to all prospective defendants must be sent, describing the nature of the claim and the injuries. The potential defendants can then reject the claim, offer to settle it, or request the claim go to arbitration.

The parties can also engage in informal discovery. This includes taking unsworn statements, and obtaining and reviewing medical records.  Additionally, the parties must make a presuit investigation of the merits of their claims or defenses, which must be corroborated by medical evidence.

Practically, this means that a victim must incur the financial expense of getting a medical opinion to back up their claim, even before the lawsuit is filed.

Medical Malpractice vs. Ordinary Negligence

It may seem easy to determine what is a malpractice claim and what isn’t. But in many situations, the line isn’t so clear.

Someone who slips and falls over water on the ground in their doctor’s office would not have a malpractice claim, but rather, just a general negligence claim.

This theory was tested in a recent case, when a victim was in a hospital and died when she was dropped while being transported off of an X-Ray table. The victim’s representative sued, and the Hospital tried to dismiss the claim on the grounds the pre-suit requirements had not been complied with. The trial court agreed with the hospital, dismissing the plaintiff’s claim.

On appeal, the plaintiff’s attorney argued that pre-suit requirements were not necessary because dropping someone on an X-Ray table was not injury by medical malpractice, but rather by normal, ordinary negligence. But the appellate court disagreed, siding with the trial court, and affirming the dismissal of the claim.

The appellate court determined that medical malpractice generally arises out of medical treatment, diagnosis or care. But it also determined that once a procedure has begun, any incident or accident which occurs during that procedure will generally be considered medical malpractice.

The Court cited many cases where this has been applied. In some, machines that were used for medical testing or procedures malfunctioned, causing injury. In others, patients had fallen from stretchers. In all cases, the claims had been held to be medical malpractice—not ordinary negligence.

The Court compared these cases to cases where hot tea had been spilled on patients, or where orderlies accidentally kicked patients, where the negligence was found to be general negligence.

The line between malpractice and ordinary negligence is far from clear, and the court has hardly set a bright line test to know when a case is based on medical malpractice as opposed to ordinary negligence. Get that question wrong and ignore pre-suit requirements, and an otherwise very good claim can be barred forever.

Fine and detailed decisions and analysis at the start of your case can be the difference between winning and recovering nothing. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury or malpractice case.


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