When a person is injured by a medical professional, they can bring a lawsuit for compensation, just like they could if they were injured in a slip and fall accident inside a grocery store. But a medical malpractice lawsuit differs in one key way: plaintiffs must submit an affidavit from a medical professional testifying that the case has merit, otherwise the plaintiff can’t go to court.
Doctors and their insurers like this pre-suit requirement because they believe it can screen out frivolous lawsuits. However, it is often too expensive to hire a medical professional to review a case, so many injured victims give up bringing a lawsuit.
A key question has always been when a lawsuit arises out of medical negligence, which means the pre-suit affidavit requirement applies, or when one arises out of ordinary negligence, which does not require a pre-suit affidavit. Fortunately, the Supreme Court of Florida has clarified this issue in a recent case.
The Facts of the Case
The Supreme Court finally confronted this issue in the case National Deaf Academy, LLC v. Townes. Here, a resident of the academy was injured when restrained by a registered nurse and subsequently sued. The defendants argued that the case was one of medical negligence, so the defendant should go through the pre-suit process. However, the Supreme Court disagreed.
As the Court pointed out, any member of the staff could have performed the restraint, not simply a nurse. Unlicensed staff, like a sign language interpreter, could also have performed it.
Also, the restraint was not the direct result of medical care requiring a medical professional’s skill or professional judgment. The Court contrasted the restraint with someone getting injured during a mammogram. For these reasons, the Court said the case arose out of ordinary negligence, not medical negligence.
What to Look For
As the Court noted, the fact that an injury arises in a medical setting does not mean that it is a medical negligence case automatically. Instead, the injury must be directly related to medical care or services. The ultimate question is whether a jury would require expert testimony because the incident is outside the realm of common experience.
For example, if a nurse accidentally runs into someone in the hallway, knocking her down, then the claim will not arise out of medical negligence, since walking does not amount to provide medical service. By contrast, if a nurse punctures a vein when trying to draw blood, then this would amount to providing a medical service, so the pre-suit requirement applies.
We Can Help You Pursue a Case for Compensation
After a medical injury, please reach out to us today. The attorneys at Dolan Dobrinsky Rosenblum, LLP, are familiar with the process for bringing medical negligence claims. Our personal injury attorneys can also bring ordinary negligence claims, if that is more appropriate.
To schedule a free consultation, please call 305-371-2692.