Ordinary or Medical Negligence? Florida Supreme Court Provides Clarity
The difference between ordinary negligence and medical negligence is important in Florida. It determines how long you have to file a claim and what you must allege to make out a case. Moreover, it affects the type and quantity of evidence and testimony needed to prove liability and damages.
Ordinary negligence is simply a person’s failure to exercise reasonable care under the circumstances. It can arise from any human activity and normally does not require special proofs. An example is a slip or trip and fall due to a hazardous condition created or left unrectified by someone responsible.
Medical negligence, also known as medical malpractice, has been defined by the Florida Legislature as a health provider’s rendering or failing to render medical care or services in breach of the prevailing professional standard of care.
Florida courts sometimes have disagreed about where to draw the line. Claims against health care providers may be couched as ordinary negligence claims in attempts to avoid the heightened requirements for medical negligence cases, which include extensive pre-suit investigation, medical expert testimony and proof of failure to meet the professional standard of care.
The state’s highest court gave welcome clarification last year in National Deaf Academy, LLC v. Townes. A nurse at a residential treatment facility used “therapeutic aggression control techniques” (TACT) to restrain an unruly bipolar patient, causing her to fall and suffer an injury that resulted in amputation of a leg. The plaintiffs claimed the nurse committed ordinary negligence and the state Supreme Court agreed. Although a psychiatrist included TACT in this patient’s treatment plan, staff members with no medical training were authorized to decide whether to use TACT and could carry it out themselves. Therefore, the claim did not “arise out of an action or inaction directly related to medical care or services, which require the use of professional judgment or skill.”
The requirements for bringing a medical negligence case in Florida are formidable. Before filing, the plaintiff’s attorney must conduct an investigation of the claim to ascertain there are reasonable grounds. A corroborating opinion by a qualified medical expert must be obtained. And each defendant must be given 90 days’ advance notice of intent to initiate suit.
Medical negligence cases are subject to a shorter statute of limitations. While a personal injury case based on ordinary negligence can be filed up to four years after an accident, a medical negligence case must be initiated within two years of the date the patient knew or reasonably should have known that the injury occurred. There is also an absolute four-year deadline for bringing suit.
If you suspect you have been injured by the negligence of a health care provider or of another person or entity, consult with a Florida medical malpractice lawyer. For a free consultation with Largey Law Firm at any of our offices in Clermont, Tavares and Inverness, call us at 352.508.1485 or contact us online.