We often discuss medical malpractice, as does the media, and many people are aware of what it is and how to spot when it may be occurring. Do you really know what medical malpractice is, as opposed to ordinary negligence? The question is an important one for victims because different laws and rules may apply to each one.
Let’s say that you are a patient in a hospital. As you are walking down the hall, you slip on a wet substance. Most of us would realize that although the accident happened in a hospital, the negligence does not involve medical malpractice. The substance on the floor had nothing to do with medical treatment (or the lack thereof), and is an accident that could happen in any establishment, even ones that do not perform medical services.
Often, injuries that happen in medical treatment centers are tougher to define as one or the other. Many walk the line between ordinary negligence and malpractice.
Injury at Disability Center
Just last year, a case was brought against the National Deaf Academy (NDA), a facility not just for the deaf, but which also treats those with psychiatric disabilities. The NDA employs both medical and non-medical staff, including teachers, speech therapists, nurses, and psychiatrists.
The victim/patient was throwing rocks at staff and generally creating a dangerous environment.
At that point a nurse made a tactical decision to apply a kind of physical hold commonly used by staff members on individuals with the victim’s condition to attempt to restrain and calm her.
The hold was unsuccessful; the victim was highly agitated, and in the process of trying to restrain her, both the victim and the NDA employee fell to the ground. The victim’s leg twisted, causing damage to her knee. Paramedics were called, and she was taken to the hospital. It was subsequently learned that her knee injury was more severe than first thought, and her leg was partially amputated.
The victim filed suit, but did so under a number of causes of action, and her lawyers did not conduct the mandatory Florida medical malpractice presuit investigation. NDA moved to dismiss the lawsuit based on that failure.
The case turned on whether the application of the hold, and on how NDA’s staff dealt with the victim, was medical care and treatment. The court was asked to determine whether professional medical judgment and skill were needed. That could include diagnosis, examination, testing, and planning a course of action for treatment. If so, then the lawsuit was a medical malpractice claim that had to abide by Florida’s pre-suit requirements, and the case would be dismissed because the victim did not do so. If it was ordinary negligence, then no such requirement would exist and the case would be allowed to proceed.
The court pointed to other cases in which residents of psychiatric institutions had been injured, such as when one patient attacks another. In those cases, courts had held that the failure to protect a resident or avoid the violence between them was one of normal negligence, not malpractice.
The court reasoned that the hold that was used on the patient was a medical one, which was specifically approved for use on the victim based on her specific condition and diagnosis. However, all personnel—not just medical—were trained in how to use the hold, and the decision to use it had to be made by someone highly trained, but not necessarily someone with a medical background.
Thus, as to some allegations, the court found them to be ordinary negligence and allowed the victim to proceed with the case. As to some others, the court found that those claims were malpractice, and the statute of limitations had expired on those claims, without the victim conducting the required pre-suit procedure.
Delayed Discovery Doctrine Did Not Apply
The victims argued that they had no idea or any cause to believe that NDA would be treated as a medical facility and asked the court for additional time under the “delayed discovery” doctrine to comply with the statutes. They argued that although they knew of the incident, they did not know that it could ever be considered medical in nature.
The court found that the victims’ previous attorneys in fact did know years before that the claim could have been considered one for malpractice, and thus, the clock to comply with medical malpractice requirements had started years previous, making those claims time-barred.
Victims Should be Aware and Plan Ahead
These kinds of problems often arise from “mixed use” facilities. Victims should not look to how the facility they are in is technically defined, but should focus on the actual injury and how it was caused. For example, a nursing home may not inherently be a medical facility, but it surely has doctors that visit or who are on staff, and nurses and therapists that may provide care and treatment.
In many cases, the decision over whether care is medical or non-medical will be left to a jury, as a factual question.
Remember that the statute of limitations for malpractice claims is shorter than that of normal negligence. The safest route is sometimes to comply with the pre-suit requirements anyway, even if a victim is uncertain of what category the case will fall into. Other than a delay in time, there is no legal harm in complying with the malpractice pre-suit requirements just to be safe.
Acting fast is crucial to protecting your rights no matter what kind of injury suit you have. Contact Brill & Rinaldi today about a free consultation to discuss your case no matter how you are injured.