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Posts filed under 'Presuit'

Florida’s 90 Day Tolling Period in Medical Malpractice Actions for “Potential Defendants”

Florida’s medical mcalendaralpractice law is very complicated as there are many procedural requirements set forth in Chapter 766 of the Florida Statutes. If these rules are not strictly followed, the court may strike pleadings and, in a worst case scenario, a potential lawsuit may subsequently be barred by the applicable statute of limitations.

An early stage in any medical malpractice action is a process called “pre-suit.”  During pre-suit, one of the statutory requirements is that you put potential defendants on notice of your intention to initiate litigation.  No lawsuit can be filed for a period of 90 days, and during this 90 days, the statute of limitations is tolled.  (This tolling period can be further extended an additional 90 days by filing an extension of the statute of limitations.)  When the pre-suit 90 day period is completed, the claimant can file a medical malpractice lawsuit within either the remainder of the original statute of limitations period, or 60 days, whichever is greater.

Although this process seems relatively straightforward, there have been disputes over the precise meaning of the statute and how the tolling periods applies.  It is clear from Section 766.106(3)(a) that the statute of limitations is tolled for 90 days for potential defendants who have been served with the notice of intent; however, an issue arises as to whether this tolling period also applies to defendants who have not been served with a notice to intent to sue.

Recently, the Third District Court of Appeal issued a ruling answering this question. Salazar v. Coello, 2014 WL 7156859 (3rd DCA 2014).  The Court held that Section 766.106(3)(a) tolls the statute of limitations for all likely defendants, even if they were not served with a notice of intent to initiate litigation.  Id.  The Court undertook an extensive review of the Florida Statutes and concluded that the Florida Legislature intended that the statute of limitations is tolled as to any defendant, even those who were not originally served with a notice of intent.  Id.  The Court further reasoned that the Florida Legislature did not intend for there to be any difference between the terms “prospective defendant” and “potential defendant” that are used in the statute.  Id.

This is an important ruling because, as in the Salazar case, if the statute of limitations was not tolled during this 90 day period, the notice of intent would have been filed after the expiration of the statute of limitations, and consequently, any subsequent pleadings would likely have been stricken.  Thus, the Plaintiff ultimately would not have been able to hold a potentially negligent party accountable for medical negligence.

Add comment January 23rd, 2015

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

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.

Add comment October 22nd, 2014

5th DCA Says No Presuit Needed Against Psychiatric Facility

The Fifth District Court of Appeal recently reversed a final summary judgment entered in favor of a psychiatric facility, finding that the plaintiff had no obligation to engage in the presuit normally required in medical malpractice cases.

James Joseph, a former patient of University Behavioral Center (“UBC”), filed suit against the psychiatric facility after he was allegedly punched by another patient.  The attack caused Joseph to suffer a detached retina and, eventually, the loss of his left eye.  L.F., the individual who threw the punch, was a fellow patient at UBC.  Joseph alleged that, prior to the attack, L.F. had bullied and punched him on numerous prior occasions, causing Joseph to ask UBC to separate the two.  UBC refused.  Joseph alleged that UBC was negligent in failing to protect him.

UBC filed a motion for summary judgment contending that Joseph’s claim was for medical negligence, and that Joseph had failed to comply with the presuit requirements of Florida’s Medical Malpractice Act, including the two-year statute of limitations.  The trial court agreed and granted UBC’s motion.  Joseph appealed, contending that his claim was for ordinary negligence.  The 5th DCA agreed with Joseph and reversed.

In reversing the summary judgment, the Court held that the claim did not arise “out of the rendering of medical care by licensed health care providers subject to the prevailing professional standard of care,” and stated that “the fact that a wrongful act occurs in a medical setting does not necessarily mean that it involves medical practice.”

Joseph v. University Behavioral LLC., et. al., __ So.3d ___ (Fla. 5th DCA 2011).

Add comment October 24th, 2011

5th DCA Addresses Necessary Qualifications of Pre-Suit Expert

The 5th District Court of Appeals recently addressed the adequacy of the qualifications of a pre-suit expert, and determined that the trial court did not err in its denial of the defendant hospital’s motion to dismiss, despite the fact that the registered nurse at issue had no hospital experience in the preceding three years.

The complaint alleged that the plaintiff had been admitted to the defendant hospital suffering from abdominal pain.  His physician prescribed narcotics, among other things, to manage his pain.  Thereafter, the nurses on duty allegedly failed to monitor the plaintiff’s vital signs throughout the night, and ultimately found him unresponsive and suffering respiratory distress the following morning.  The plaintiff allegedly stopped breathing for thirteen minutes and suffered brain damage as a result.

In February, 2008, the plaintiff notified the defendant of his intent to initiate litigation in accordance with Chapter 766.  Plaintiff attached the affidavit and CV of a registered nurse, which indicated that she had been employed as a consultant in a medical rehabilitation center from 1993- 2006.  The affidavit did not indicate that the r.n. had any experience as a hospital nurse in the three years prior to the incident at issue.  Subsequent affidavits provided that the r.n. had been employed as a medical case manager providing nursing care for many cases that involved brain injury, and that, from 2002-2005, she had been employed as a nursing consultant.  As to causation, the r.n. averred that her training and experience enabled her to state with a reasonable degree of certainty that a patient left without oxygen would incur brain damage and/or death.

The defendant moved to dismiss, arguing that the documents provided made it clear that the r.n. had not devoted any time to clinical practice or consulting in a hospital setting since 1993, and that she did not have the requisite training and experience to opine about the medical causation of the plaintiff’s injuries for pre-suit purposes.

In affirming the trial court’s denial of the defendant’s motion to dismiss, the 5th DCA stated that the pre-suit requirements were “…not intended to be a Daedalean labyrinth that denies a plaintiff access to the courts.”  Although the expert had not been a floor nurse at a hospital during the preceding three years, the Court held that the CV and affidavits, when taken together, established that she had been actively engaged, both in the practice of nursing and nurse consulting, such that she was sufficiently qualified to give an opinion as to standard of care for hospital nurses and causation.  Holmes Regional Medical Center v. Wirth, Case No. 5D10-423 (Fla. 5th DCA Nov. 12, 2010).

Add comment November 17th, 2010

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

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.

Add comment February 16th, 2007

Presuit Affidavits Need Not Name Every Prospective Defendant

In Michael v. MSN, 32 Fla. L Weekly D207b (3rd DCA January 10, 2007), a man went to a hospital following a head laceration.  While there he experienced chest pain, and was given 5 doses of nitroglycerine by a nurse – without physician approval.  The next morning the doctor came in and determined the gentleman had had a heart attack that, because it went untreated, soon resulted in the man’s death.

Before the expiration of the statute of limitations, presuit notice was served on the hospital and the doctors.  The attached affidavit cited negligence on the part of the physicians “and medical providers.”  The notice also requested the identity of anyone else involved.  Almost a year later, the hospital informed Plaintiff’s counsel that the nurse was an agency nurse not employed by the hospital.  Plaintiff’s counsel immediately sought leave to amend to add the nurse and the agency.  The Court granted leave, but then granted summary judgment in favor of the nurse and the agency finding presuit notice defective – particularly the affidavit – for failing to list a name, job title, or job description for each prospective defendant.

 On appeal the Third District found that the purpose of the affidavit requirement is to demonstrate that a reasonable investigation into the claim was done (to corroberate the claim – not each defendants’ involvement).  The Court further recognized that Rule 1.650(b) provides that notice to any prospective defendant can be imputed to those persons or entities in a legal relationship with the noticed defendant.  The Court reasoned that if the legislature has chosen to allow notice to be imputed to defendants who are not served then there is no reason to name each of those parties individually.  The Court reversed the Summary Judgement.Š

Add comment February 15th, 2007