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If an action “arises out of medical diagnosis, treatment, or care” you must follow pre-suit requirements

October 22, 2014
Kimberly Wald

GurneyRecently, in Buck v. Columbia Hospital Corp. of South Broward, Case No. 4D13-2165 (Fla. 4th DCA) (September 10, 2014), the Fourth DCA affirmed the dismissal of a complaint for failing to comply with the pre-suit requirements of Chapter 766 of the Florida Statutes. The issue was whether this cause of action was ordinary negligence or medical negligence.  This distinction is essential because when there is medical negligence, you are required to follow the pre-suit requirements set forth in Chapter 766.  Failure to comply these requirements may result in a dismissal of the complaint.  Unfortunately, this is exactly what happened in this case.

In Buck, the Plaintiff alleged that while the decedent was being transported from a gurney to an x-ray table at a hospital, hospital employees dropped her onto an x-ray table causing a lumbar spine fracture.  Buck alleges that this eventually caused the decedent’s death. The hospital moved to dismiss the complaint for failing to comply with pre-suit requirements and the trial court granted the motion.  The Fourth DCA affirmed this decision.

The Fourth held that a claim for negligence is subject to the pre-suit requirements of Chapter 766 if, “the wrongful act is directly related to the improper application of medical services and the use of professional judgment or skill.” The Court further reasoned that, “[w]hen determining whether a complaint alleges a cause of action in medical negligence versus simple negligence, the key inquiry is whether the action arises out of medical diagnosis, treatment, or care.”  The Court held that the Plaintiff’s cause of action alleged medical negligence because hospital employees were engaged in the “rendering” of medical care and services when they lifted the decedent from the transport gurney and placed her on the x-ray table as part of a medical procedure.

This case illustrates that it is absolutely essential to hire knowledgeable, experienced, and skilled medical malpractice attorneys when dealing with matters involving medical negligence. If Buck had complied with the pre-suit requirements of Chapter 766, it is likely that the complaint would not have been dismissed.