Nurse Drops Patient: Court Weighs Med-Mal Over Ordinary Negligence
A Broward hospital patient alleged he fell out of bed because the nurse helping him answered her phone at the same time. The Fourth District Court of Appeal settled a dispute over whether his allegation rose to the level of medical malpractice, or constituted a negligence claim.
August 21, 2019 at 03:21 PM
3 minute read
The Fourth District Court of Appeal settled a dispute Wednesday in a lawsuit against a nurse by ruling 2-1 that the claim fits under Florida's medical malpractice statute, despite the plaintiff's protestations.
Patient-turned-plaintiff Michael Slusher argued that his lawsuit involved an ordinary negligence claim because a nurse allegedly answered her phone while helping Slusher, after she knew he was at risk for falls. Slusher suffered fractures and torn joints in his knee from the fall, according to his complaint.
Slusher argued the nurse's actions hadn't involved professional skill or judgment, and therefore did not rise to the level of medical malpractice.
It was an important distinction because bringing a medical malpractice claim would require him to meet stricter criteria under Florida statute section 766.106.
Defendant Broward Health Coral Springs—a public hospital within the North Broward Hospital District—urged the court to see the proceedings as a medical malpractice lawsuit, and find that Slusher's pleadings hadn't reached the threshold.
The Fourth DCA sided with the hospital, allowing it another shot at dismissal. The opinion quashed a lower court ruling that had denied a motion to dismiss.
The opinion relied on prior Fourth DCA rulings, which held that claims against an orderly who allegedly left a emergency-room patient unattended without a guardrail on the bed, and a hospital employee who accidentally dropped a patient from a gurney, both fell under medical malpractice.
"The alleged exercise of professional judgment here, while arguably also involving common sense, will depend on the standard of nursing care in transferring a patient from the hospital bed," wrote Fourth DCA Judge Melanie G. May, with Judge Jonathan D. Gerber concurring.
|'Garden-variety negligence'
Judge Carole Y. Taylor dissented, finding the trial court was right to deny the hospital's motion to dismiss, because the lawsuit presented a "garden-variety negligence claim" that didn't depend on a professional standard of care, judgment or skill.
The nurse's alleged failings, as Taylor saw it, didn't stem from a medical service, but simply deviated from what "any reasonable person would do" by answering the phone while helping another person.
"Based on the allegations in the complaint, a jury could easily determine—without the help of expert testimony—that the nurse committed ordinary negligence by failing to exercise reasonable care when she answered the phone and allowed the plaintiff to fall," Taylor wrote.
Taylor's dissent pointed to a 2018 case before the Florida Supreme Court, which found that "the fact that an injury occurs in a hospital does not automatically transform the claim into one for medical malpractice."
Slusher's attorney, MIchele K. Feinzig of Michele K. Feinzig in Coral Springs, declined to comment. Counsel to the hospital, Timothy D. Kenison and William T. Viergever of Sonneborn Rutter Viergever Burt & Lury in West Palm Beach, did not respond to a request for comment by deadline.
Read the court opinion:
More appeals:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllChicago Midsize Firm Will Combine With Miami Boutique To Form Antitrust Powerhouse
3 minute readAkerman Opens Charlotte Office With Focus on Renewable Energy, Data Center Practices
4 minute readTrending Stories
- 1Read the Document: 'Google Must Divest Chrome': DOJ Proposes Remedies in Search Monopoly Case
- 2Voir Dire Voyeur: I Find Out What Kind of Juror I’d Be
- 3When It Comes to Local Law 97 Compliance, You’ve Gotta Have (Good) Faith
- 4Legal Speak at General Counsel Conference East 2024: Virginia Griffith, Director of Business Development at OutsideGC
- 5Legal Speak at General Counsel Conference East 2024: Bill Tanenbaum, Partner & Chair, AI & Data Law Practice Group at Moses Singer
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250