Fourth District Court of Appeal Judge Melanie May. Photo: Meliane Bell/ALM.

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:

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