The Daily

Last week, a friend sent me an article about a recent Supreme Court case involving what constitutes a “medical malpractice case” and asked what I thought about it. Unfortunately for him, I had a lot of thoughts about it. You can find the article that sparked our discussion here.

I continue to litigate a case that bears a lot of similarities to the National Deaf Academy case: The continuing Estate of Thomas litigation (you can find stories on this case on our website here and find the 2010 appeals court opinion in Thomas here).

On August 7, 2008, Clynette Perry – a deaf patient of the National Deaf Academy headquartered in bucolic Mount Dora, Florida – eloped from the Academy and returned on her own in an agitated mood. Ms. Perry, in addition to being deaf, was diagnosed with bipolar depression with mixed features, “explosive disorder”, impulse control disorder, conduct disorder and post-traumatic stress disorder. Her caretakers employed TACT (Therapeutic Aggression Control Techniques) to physically restrain her. During the ensuing struggle, Ms. Perry sustained an injury that ultimately led to a below the knee amputation of her leg.

Because Ms. Perry’s lawyers chose not to bring her claim as a ‘medical malpractice case” and therefore did not comply with Florida’s strict and completely burdensome laws (passed by our legislature as bagmen for the hospital and insurance lobbies) designed to constrict and prevent medical malpractice claims, the facility moved to dismiss her claims as sounding in “medical malpractice”. Without complying with these trap laws, the Academy argued, they are immune from suit. The trial judge agreed and dismissed the suit. Perry’s lawyers appealed.

The Fifth District Court of Appeal – and now Florida’s Supreme Court – disagreed, ruling that the Academy’s decision to employ TACT procedures on Ms. Perry was ordinary negligence (not medical malpractice). See, Nat’l Deaf Acad., LLC v. Townes, 43 Fla. L. Weekly 193 (2018). The Court noted that in order to qualify as a “medical malpractice” case, the facts must hinge on “the rendering, or the failure to render medical care or services.” This is language lifted directly from the Legislature’s description 0f the kinds of cases they intended to restrict when they passed their series of medical malpractice “tort reforms”. Other decisions center around “the use of professional judgment or skill” or a focus on the actual injury involved – “the injury must be a direct result of receiving medical care or treatment by the healthcare provider”.

One case, in particular, Joseph v. Univ. Behavioral LLC, 71 So. 3d 913 (Fla. 5th DCA 2011), led to a line of other decisions stressing that “merely because a wrongful act occurs in a medical setting does not necessarily mean that it involves ‘medical malpractice.'”

In the National Deaf Academy case, the Supreme Court took special note of the “common sense” employed in a case where a Hospital tried to dismiss a patient’s claim for serious burns suffered when a nurse spilled hot tea on them. The Hospital ended up losing that argument after years of trying to stuff that claim into the constricted medical malpractice box.

In its decision, the Supreme Court noted the importance of allowing litigants to proceed outside the narrow (or constricted) forum prescribed by Florida’s legislature to effectively immunize health care providers in all but the most catastrophic cases.

In Thomas, I played it safe by bringing BOTH the medical malpractice claims and the ordinary negligence claims together. While that prevented the Defendants from arguing that the case should be dismissed because I had complied with the Rube Goldberg system of rules designed to prevent cases from being filed, that didn’t stop the defendants and their carriers from attacking every aspect of the case. Repeatedly. Over and over. For twenty years.

Please make sure that the lawyer you engage to represent you and your family in any case for serious injuries suffered in the medical setting (or any other) is experienced and tenacious.