Does a nurse who answers her cell phone while moving a patient — causing him to fall and injure himself — commit medical malpractice or ordinary negligence? Two of three Fourth District judges recently ruled that such a claim falls under Florida’s medical malpractice laws, even though the nurse wasn’t performing a medical procedure at the time of the accident. Because the standard of care required the nurse to pay close attention while moving the patient, the Fourth District held, her failure to do so constituted malpractice.
Classifying a claim as malpractice instead of negligence can make a major difference in the amount the plaintiff is eligible to recover and the speed with which the lawsuit will go to trial. So where is this line drawn?
What Constitutes Medical Malpractice?
Not all medical errors are malpractice, and not all negligent acts that occur in a medical setting are malpractice either. In Florida, medical malpractice occurs when a healthcare professional violates their standard of care when providing treatment to a patient. The standard of care can often vary from case to case; for example, the standard of care for treating a 65-year-old with a suspected heart attack can be far different from the standard of care for treating a 35-year-old with cancer.
Ordinary negligence, on the other hand, does not involve a breach of the medical provider’s duty of care, but a breach of the more general duty of care owed to all guests or visitors. Some examples of ordinary negligence include trips, slips, and falls.
Because of the need for expert testimony to establish the standard of care to be met by a medical professional treating a certain condition, medical malpractice claims must first go through a medical review panel process. The medical review panel, composed of several medical professionals, is uniquely equipped to discern between a breach of the provider’s duty and a poor medical outcome or just plain bad luck. If a medical review panel concludes that the medical provider didn’t commit malpractice, the plaintiff can still file a complaint in a trial court—however, they can face an uphill battle when it comes to rebutting the panel’s opinion.
Proceeding in Malpractice or Negligence
While there are some claims that are clearly malpractice, and others that are clearly ordinary negligence, most cases fall somewhere in the middle. As a result, plaintiffs who aren’t sure whether their claims sound in malpractice or negligence may wonder whether they should first submit their complaint to a medical review panel or file it directly with the trial court.
In most cases, going through the medical review process can be beneficial. If the medical review panel concludes that the claim sounds in ordinary negligence, not medical malpractice, the plaintiff can still proceed in the trial court. On the other hand, a negligence complaint that is filed directly with the trial court could be dismissed for lack of jurisdiction if the court concludes that the claim implicates malpractice and was not first routed through the panel review process.