A: National Deaf Academy, LLC v. Townes
In April 2018 the Florida Supreme Court limited medical malpractice claims to those that “are directly related to medical care and treatment, which require the use of professional judgment or skill” in National Deaf Academy, LLC v. Townes.
In Townes, the plaintiff filed her case on behalf of her niece, who reportedly sustained injuries while she was a resident at the National Deaf Academy (“NDF”). NDF is both a school and a residential treatment facility which offers services and institutional care for individuals who are deaf, autistic or suffer from psychiatric or behavioral disorders. The staff includes psychiatrists, nurses, teachers, therapists and sign language interpreters.
Plaintiff’s niece had been diagnosed with bipolar disorder, PTSD, impulse control disorder and intermittent explosive disorder. Her plan of care included Therapeutic Aggression Control Techniques, which require physical restraint. Before such restraint can occur, a senior staffer is required to make a determination that it’s appropriate.
In August 2008, a nurse on staff got word plaintiff’s niece had “eloped” from the campus. When she returned voluntarily, she reportedly began throwing rocks at the building and staffers. Several windows shattered. The staff tried to verbally “talk her down.” When she reportedly didn’t respond, the nurse on duty made the decision to restrain her. The attempt wasn’t successful as the patient was highly agitated and resulted in a fall that caused plaintiff’s niece to suffer a dislocated knee, ultimately requiring an above-the-knee amputation.
Plaintiff filed a lawsuit against the facility and staffers alleging ordinary negligence. NDF filed a motion to dismiss, arguing the complaint sounded in medical malpractice, and as such, the plaintiff failed to timely comply with the presuit notice requirements as outlined by Chapter 766. The trial court agreed, finding that while the complaint was “styled as an ordinary negligence claim,” it actually arose out of the rendering of medical care and services and thus was alleged medical malpractice.
Plaintiff appealed, and the Fifth District Court of Appeal reversed, citing two nurses’ deposition testimony indicating that the purpose of the restraint was to ensure the safety of the residents and that non-medical personnel (such as sign language interpreters) underwent this same training and could perform the hold. Because a person who is not necessarily a medical professional could perform the hold, and because the hold wasn’t for the treatment or diagnosis of any condition, not employed to meet her daily care needs, it couldn’t be classified as medical care.
Defendant appealed. The Florida Supreme Court affirmed the Firth District Court of Appeal’s decision. The Court found that not every negligent act by a health care provider need be subject to the onerous presuit requirements as outlined by Chapter 766. The Court held that while the decision to use these kinds of restraint holds in plaintiff’s plan of care was made by a medical doctor, the purpose of the hold is to ensure resident safety. The staffers carrying it out were non-medical and weren’t authorized to consider whether to employ it. Further, the fact that staffers used this hold to control the patient means they were not ascertaining her medical condition through examination, testing, prescribing and administering care to effect a cure or meet her daily needs. Thus, the claim did not arise out of acts directly related to medical care or services, but rather ordinary negligence.
Negligence versus medical malpractice is an important distinction because if a hospital or health care professional is successful in having the case designated as sounding in medical malpractice, a plaintiff must comply with the presuit requirements of Florida’s Medical Malpractice Act. The claimant must first conduct an investigation to verify that there are reasonable grounds to believe that a medical professional was negligent and that the negligence resulted in injury to the claimant. This process includes gathering medical records from health care providers and review these documents. The records must be sent to a medical expert who is a “similar health care provider” for review. The expert must execute a “verified written medical expert opinion,” essentially an affidavit in which the expert swears he/she has reviewed the records and believes there are reasonable grounds to proceed. The claimant must then file a “Notice of Intent to Initiate Litigation for Medical Negligence,” and attach the expert affidavit. The Notice of Intent to Initiate Litigation for Medical Negligence is a document that contains the names of the prospective plaintiffs and defendants and a summary of the claim and injury. This notice must be sent to each prospective defendant, and in some cases, to state agencies. Then, there is a 90-day “pre-suit investigative period” during which the parties exchange written questions, requests for documents and items, and take unsworn statements. At or before the end of the 90 days, the prospective defendant can either (1) reject the claim, (2) make a settlement offer, or (3) make an offer to arbitrate in which liability is deemed admitted and arbitration will be held only on the issue of damages. Finally, (save for some exceptions) medical malpractice claims have a two-year statute of limitations, whereas personal injury litigation has a four-year statute of limitations.
Medical malpractice requires a great deal of knowledge, skill and experience with issues surrounding the standard of care, legal duties and ethics. David Doyle and Julie Tyk have the experience necessary to help medical professionals defeat accusations that threaten their profession, integrity and livelihood. If you need a Florida law firm to prepare a strong defense and navigate the legal system contact the Health Care Practice Group at Pearson Bitman.
By Julie A. Tyk, JD
Julie A. Tyk, JD, is a Partner with Pearson Bitman, LLP. Julie concentrates her practice in medical practice defense litigation, insurance defense litigation and health care law. She has represented physicians, hospitals, ambulatory surgical centers, nurses and other health care providers across the state of Florida. She may be contacted by contacting (407) 951-8523 or firstname.lastname@example.org