Florida Supreme Court refines the nature of claims subject to Chapter 766 presuit requirements. National Deaf Academy LLC v. Townes, 2018 WL 1959642 (Fla. 2018).
Chapter 766, Florida Statutes imposes statutory condition precedents to bringing suit in medical malpractice cases. When suit has been filed without compliance with the presuit requirements of Chapter 766, “the court shall dismiss the claim.” § 766.202(2), Florida Statutes.
Accordingly, whether an action is a medical malpractice action subject to Chapter 766 presuit requirements has been a source of litigation. Factors courts have used to determine whether a claim is one for medical malpractice include whether proof of the claim requires relying on the medical standard of care; South Miami Hospital v. Perez, 38 So.3d 809 (Fla. 3d DCA 2010); whether the defendant is a “healthcare provider” of medical services, Goldman v. Halifax Medical Center, Inc., 662 So.2d 367 (Fla. 5th DCA 1995); and whether the alleged negligence involves medical skill or judgment by a healthcare provider, Bell v. Indian River Memorial Hospital, 778 So.2d 1030, 1031 (Fla. 4th DCA 2001). Courts have considered several factors in making the determination.
For example, in Stubbs v. Surgi-Staff, Inc., 78 So.3d 69, 70-71 (Fla. 4th DCA 2012), the Court held that whether the alleged wrongdoing (1) occurred in the provision of medical services and (2) involved the use of professional judgment was “[t]he key inquiry of whether the action arise[s] out of . . . medical, diagnosis, treatment, or care.”
In 2015, Florida’s First District Court of Appeal decided Shands Teaching Hospital and Clinics, Inc. v. Estate of Lawson, 175 So.3d 327 (Fla. 1st DCA 2015) (en banc), in which a patient escaped from the locked psychiatric unit at the hospital and was struck and killed by a truck. In an action by the patient’s estate against Shands for negligence, Shands moved to dismiss, arguing that the complaint sounded in medical negligence and that the deceased’s estate had not complied with the mandatory presuit requirements of Chapter 766. After denial of the motion, the First District granted certiorari and found that the claim was one for medical negligence because it arose “out of the rendering of, or the failure to render, medical care or services.” In addition, the First District held that “Furthering our view that the estate’s claim sounds in medical negligence is that the proof required in this case will inevitably involve the medical negligence standard of care.”
On April 26, 2018 the Florida Supreme Court decided National Deaf Academy LLC v. Townes, 2018 WL 1959642 (Fla. 2018) in which it disapproved Lawson and approved the Fifth District’s decision in Townes v. National Deaf Academy LLC, 197 So.3d 1130 (Fla. 5th DCA 2016). The Fifth District had held that injury arising from a nurse applying a choke hold characterized as a “Therapeutic Aggression Control Technique” did not arise out of the rendering of medical care. The Supreme Court agreed with the Fifth District’s reasoning that such an action was not “diagnosis, treatment, or care” which it defined as “ascertaining a patient’s medical condition through examination and testing, prescribing and administering a course of action to effect a cure, and meeting the patient’s daily needs during the illness.” The Court noted that non-health care providers also utilized the same technique.
The Supreme Court held that “[c]onstruing what constitutes medical malpractice as broadly as the First District did in Lawson would make any claim arising out of a negligent act by a health care provider subject to the onerous presuit requirements of Chapter 766….While it is true that the hospital failed to confine the patient to her locked unit, the estate’s claim arose out of the hospital employee leaving her badge and keys unattended where the patient could access them, not out of any act directly related to medical care or services that required the use of professional judgment or skill.” The Supreme Court then articulated the standard for resolving medical malpractice versus ordinary negligence going forward:
[W]e hold that for a claim to sound in medical malpractice, the act from which the claim arises must be directly related to medical care or services, which required the use of professional judgment or skill. This inquiry involves determining whether proving the claim requires the plaintiff to establish that the allegedly negligent act “represented a breach of the professional prevailing standard of care,” as testified to by a qualified medical expert.
The Supreme Court’s holding narrows the class of claims subject to the Chapter 766 presuit requirements. Using professional judgment or skill is now a prerequisite, rather than one of several factors that courts may apply to make the determination. The specific act of alleged negligence itself must involve the use of professional judgment or skill. Finally, the necessity for expert testimony to prove the medical malpractice standard of care cited by the First District as persuasive in making such a determination is now a mandatory requirement.
In our practice representing several multi-hospital health systems throughout the state, we encounter this issue regularly. On May 14, 2018, we obtained a dismissal, with prejudice, of a civil action for the failure of a plaintiff to comply with the Chapter 766 presuit requirements. This is likely the first trial court opinion to apply and rely on the Supreme Court’s Townes case. The case involved an infant evaluated in an emergency department with physical findings suggesting abuse. The complaint alleged the physician should have diagnosed and reported the findings. In dismissing the action, the trial court distinguished this pattern from that in Townes:
In that case, the Court found no medical judgment was an issue when the plaintiff suffered an injury from the utilization of a certain type of restraining hold, because the decision whether to use such a hold could be made by non-medical personnel and therefore did not require medical skill or judgment. In the case at bar, the diagnosis of the Child’s injuries were made by medical professionals, and determination that those injuries were consistent with abuse necessarily involves the exercise of medical professional judgment.
Because the alleged act of negligence (the health care provider’s diagnosis and response to the patient’s presenting physical findings) was one of medical judgment, the trial court held the claim to be one for medical malpractice under the standard announced by the Supreme Court in Townes and dismissed the action with prejudice. For additional information, please contact Andrew Sauer, M.D., J.D. in our Healthcare Practice group.