So when is a "fall" med mal?

FLORIDA LAW WEEKLY

VOLUME 44, NUMBER 35

CASES FROM THE WEEK OF AUGUST 30, 2019

WHEN A NURSE ALLEGEDLY CAUSES A PATIENT WHO IS A “FALL RISK” TO FALL WHILE HELPING THE PATIENT OUT OF BED, THE CASE SOUNDS IN MEDICAL NEGLIGENCE AND IS SUBJECT TO PRESUIT NOTICE REQUIREMENTS.

North Broward Hospital District v. Slusher, 44 Fla. L. Weekly D2126 (Fla. 4th DCA August 21, 2019):

The plaintiff was admitted to the hospital for certain medical procedures and classified as a “fall risk.” The day after being admitted, the plaintiff fell while being helped from a hospital bed to the bathroom, because the nurse assisting him answered her phone in the process.

The plaintiff did not comply with presuit notice requirements, viewing the case as one of ordinary negligence.

To constitute a medical malpractice claim, the cause of action must arise from medical, dental, or surgical diagnoses, treatment or care. The alleged wrongful act must be directly related to the improper application of medical services to the patient, and the use of professional judgment or skill. The test is whether the claim can exist independent of any standard of care imposed on a health care provider.

Recently, the Florida Supreme Court limited the application of the presuit screening statute to medical malpractice claims directly related to medical care or services, which require the use of professional judgment or skill.

The hospital here argued that the claim involved the sufficiency of a nurse’s supervision of an admitted patient deemed to be a “fall risk”, and that the plaintiff would have to rely on the professional standard of care that exists for nurses in transferring patients from beds.

The court agreed that the allegations in this case fell within the “gray area” identified in the Supreme Court’s decision in National Deaf Academy v. Townes, and that the alleged exercise of professional judgment, while arguably also involving common sense, did depend on the standard of nursing care in transferring patients from their hospital beds. The court quashed the order denying the defendant’s motion to dismiss.

Reflecting on the “grayness” of the gray area, one judge dissented, finding that plaintiff’s complaint asserted a garden-variety negligence claim that simply did not depend on the professional standard of care imposed on a medical provider.

The bottom line with these cases is that it is scary not to comply with presuit notice requirements because of the real possibility that the claim will be tossed out after the statute of limitation runs.

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ORDER REQUIRING THE CLAIMS FILE BE PRODUCED IN HOMEOWNER’S INSURANCE DISPUTE IMPROPER–CERTIORARI GRANTED.

Homeowners Choice Property and Casualty Insurance Co. v. Mahady, 44 Fla. L. Weekly D2125 (Fla. 4th DCA August 21, 2019):

The insureds sued the insurer for breach of contract, alleging that the payments made by the insurance company were insufficient, and failed to cover all damages from hurricane Irma.

The insureds sought the production of the underwriting file. The trial court overruled all objections made to the production of any documents created up until the time the subject claim was denied.

The court found that the trial court had viewed as protected only those items postdating the denial of claim, because they were seemingly an anticipation of litigation. The trial court did not look to when the issue of coverage was determined as the proper point in time.

Until the obligation to provide coverage and damages has been determined, a party is not entitled to discovery related to the claims file, or to the insurer’s business policies or practices regarding the handling of the claims. Because the insurer’s liability for coverage in the amount of the policy owner’s damages had not been finally determined, the discovery order was a departure from the essential requirements of law that would result in irreparable harm. Therefore, the court granted the petition.

TRIAL JUDGE’S ANNOUNCEMENT OF HOW HE OR SHE WILL RULE ON A MOTION THAT HAS NOT YET BEEN MADE COULD CREATE AN OBJECTIVELY REASONABLE FEAR THAT THE PART WOULD NOT RECEIVE A FAIR TRIAL—PETITION FOR PROHIBITION GRANTED.

Real State Golden Investments, Inc. v. Larrain, 44, Fla. L. Weekly D2133 (Fla. 3rd DCA August 21, 2019):

After denying a motion to intervene, the trial judge denied a non-existent motion to stay the proceedings (the party had not filed a motion to stay, nor suggested any intention of filing one). Still, the trial judge stated that he expected the motion to stay to be filed “because the defendants appeal everything in this case,” and stated that he would deny such a motion if the defendants were to file one.

A judge’s announced policy or predisposition to rule in a particular manner is grounds for disqualification. An announced intention before a scheduled hearing to make a specific ruling, regardless of any evidence or argument to the contrary, constitutes judicial bias and prejudice.

The appellate court granted the petition, but withheld issuance of the writ feeling confident that the trial judge would recuse himself.

NO ABUSE OF DISCRETION IN DENYING MOTION TO VACATE DISMISSAL FOR LACK OF PROSECUTION – NO SHOWING THAT ATTORNEY’S CONDUCT WAS DUE TO EXCUSABLE NEGLECT.

Mesa v. Miami Dade County, 44, Fla. L. Weekly D2134 (Fla. 3rd DCA August 21, 2019):

A former Miami Dade County firefighter filed suit for sexual discrimination and retaliation. For five years, there was no record activity in the case, which gave rise to the lower court issuing a notice of lack of prosecution, and ordering plaintiff to appear for a hearing. Even after that, there was still no record activity.

The plaintiff filed a motion to vacate stating that she and her attorney had regular meetings and discussions about the status of litigation, but that he stopped returning her calls toward the end of 2016. She asserted that she did not learn that the case was not being prosecuted anymore until after receiving the notice for lack of record activity.

At the hearing, the attorney testified that plaintiff was well aware he could not represent her, or file documents to keep the litigation moving forward.

The trial court denied the motion to vacate finding there was no “excusable neglect”. The attorney advised the plaintiff that he was not going to do anything further. Under these facts, the court affirmed.