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Presuit Doesn’t Apply to Hospital’s “Simple Negligence”

February 16, 2007
Bonnie Navin

In Lakeland Regional v. Allen, 32 Fla. L. Weekly D94b (2d DCA December 27, 2006) the Second DCA addressed a situation where a hospital was alleged to have served a patient a turkey sandwich that caused salmonella infection and the ultimate demise of the patient.  The trial court denied a motion to dismiss for failure to comply with presuit, and certiorari review was granted.

The Second DCA recognized that Chapter 766 doesn’t apply where the cause of the injury is something other than improper medical care, and therefore presuit compliance isn’t required.  The Court recognized that there was a case where the patient was on a prescribed diet and the prescription wasn’t followed that did require presuit notice.  But, the Court found the instant matter to be analogous to the Quintanilla case which found that burn injuries caused by a nurse spilling scalding-hot tea onto a patient constituted simple negligence and not medical malpractice.