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The National Deaf Academy, LLC v. Townes

Supreme Court of Florida

April 26, 2018

DENISE TOWNES, etc., et al., Respondents.


          Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions Fifth District - Case No. 5D14-904 (Lake County)

          Mark Hicks and Mary Street of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, Florida; and Julie W. Allison of Julie W. Allison, P.A., Miami, Florida, for Petitioner.

          Nicholas A. Shannin of Shannin Law Firm, P.A., Orlando, Florida; and Michael J. Brevda of Senior Justice Law Firm, Boca Raton, Florida; for Respondent.

          PARIENTE, J.

         The issue in this case requires this Court to determine when a negligence claim arises out of the "rendering of, or the failure to render, medical care or services, " as the Legislature's definition of medical malpractice provides, thereby subjecting a plaintiff to the onerous presuit requirements and restrictions of the medical malpractice statutory scheme. § 766.106(1)(a), Fla. Stat. (2008).[1] In the decision under review, the Fifth District Court of Appeal held that a claim arising out of the alleged negligence by employees of the National Deaf Academy in attempting to physically restrain one of its residents, which resulted in injury to the resident, sounded in ordinary negligence. Townes v. Nat'l Deaf Academy, LLC, 197 So.3d 1130, 1135 (Fla. 5th DCA 2016). Reasoning that the employees' actions were "not for treatment or diagnosis of any condition, " were not intended "to meet [the resident's] daily needs during care, and did not require medical skill or judgment, " the Fifth District reversed the trial court's entry of summary judgment for failure to timely comply with the medical malpractice presuit requirements. Id. at 1136.

         The National Deaf Academy argues, and we agree, that the Fifth District's decision conflicts with the First District Court of Appeal's decision in Shands Teaching Hospital & Clinics, Inc. v. Estate of Lawson, 175 So.3d 327 (Fla. 1st DCA 2015), holding that a claim arising out of a psychiatric hospital employee leaving her keys and badge unattended, which resulted in a patient's death, sounded in medical malpractice. Id. at 328.[2] We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

         In accordance with the Legislature's definition of medical malpractice and this Court's relevant case law, we hold that for a claim to sound in medical malpractice, the act from which the claim arises must be directly related to medical care or services, which require the use of professional judgment or skill. Because we conclude that neither the claim in Townes nor the claim in Shands arose from an act directly related to medical care or services, which require the use of professional judgment or skill, we approve the Fifth District's decision in Townes and disapprove of the First District's decision in Shands.


         This case arises out of an action for damages brought by Denise Townes, on behalf of Cinnette Perry, [3] and Cinnette Perry, individually, against the National Deaf Academy, by and through its employees, for injuries Perry sustained while she was a resident at the National Deaf Academy. As explained by the Fifth District:

[The National Deaf Academy] operates as both a school and a residential treatment facility, licensed pursuant to Chapter 394, Florida Statutes (2008), for deaf, hard of hearing, and autistic individuals suffering from psychiatric and behavioral disorders. [The National Deaf Academy] offers psychiatric, psychological, medical, speech therapy, and educational services to its residents. [The National Deaf Academy's] staff includes psychiatrists, nurses, teachers, therapists, and sign language interpreters.
Before going to [the National Deaf Academy], Perry was diagnosed with bipolar disorder-mixed, intermittent explosive disorder, impulse control disorder not otherwise specified, conduct disorder, and post-traumatic stress disorder. During her admission, a [National Deaf Academy] psychiatrist established a plan of care for Perry that included Therapeutic Aggression Control Techniques ("TACT"), which involves staff members physically restraining the resident. Prior to employing a TACT hold, the most senior employee on scene is required to make a determination as to whether the TACT hold is an appropriate method to control the resident.

Townes, 197 So.3d at 1133.

         The Fifth District set forth the circumstances that led to Perry's injuries as follows:

On August 7, 2008, Danielle Warren, a nurse employed by [the National Deaf Academy], received notice that Ms. Perry "eloped off campus." When Perry voluntarily returned to [the National Deaf Academy's] campus, she began throwing rocks at [the National Deaf Academy] staff and its buildings, causing several windows to shatter. Perry also pulled on cables, wires, and lightning rods, trying to dislodge them.
After the staff removed the other residents from the area, four [National Deaf Academy] staff members attempted to verbally de-escalate the situation. Since Perry was not responding to the verbal de-escalation attempts, Nurse Warren made the decision to perform a TACT protective hold. After Nurse Warren called Dr. Karen Goldberg, [the National Deaf Academy's] Associate Medical Director, the staff attempted to employ a TACT hold. The attempt was unsuccessful as Perry was agitated. According to Nurse Warren, Perry positioned her toe down into where "the dirt meets the concrete" and then wrapped her leg around Nurse John Barclay, causing both to fall. As she fell, Perry sustained an injury to her leg, which the staff believed to be a dislocated knee.

Id. "[A]s a result of the injury sustained during the attempted TACT protective hold, Perry underwent an above-the-knee amputation of her left leg." Id.

         Townes filed a two-count complaint, alleging claims of ordinary negligence against the National Deaf Academy, by and through its employees. Id. at 1133-34. The National Deaf Academy moved to dismiss the complaint, arguing that Townes's claims sounded in medical malpractice and Townes failed to timely comply with the presuit notice requirements for medical malpractice claims under chapter 766, Florida Statutes (2008), before the expiration of the two-year statute of limitations. Townes, 197 So.3d at 1134.[4] The trial court permitted Townes to conduct limited discovery on whether the TACT hold was administered by nonmedical as well as medical staff members of the National Deaf Academy. Townes, 197 So.3d at 1134.

         Two registered nurses involved in the incident testified in deposition that a TACT hold is "a form or a style of physical intervention for the mentally ill." They explained that a TACT hold is administered "[t]o protect the resident from himself or herself, as well as protect the other residents from [the resident] if [the resident is] violent." The nurses testified that the purpose of a TACT hold is "[f]or safety of the resident and for safety of the other residents. For safety in general." While the inclusion of a TACT hold in a resident's plan of care is a decision made by a medical doctor, the nurses explained that the decision to administer a TACT hold need not be made by a medical doctor. Rather, a nurse, supervisor, or "the most senior person that is train[ed] and qualified in TACT, " has the authority to decide that a TACT hold is necessary. Moreover, everyone employed by the National Deaf Academy, including mental health technicians and sign language interpreters, completes TACT training.

         After the limited discovery period and the National Deaf Academy's renewed motion to dismiss, Townes amended her complaint. Townes, 197 So.3d at 1134. Consistent with the original complaint, Counts I and II alleged claims of ordinary negligence against the National Deaf Academy, by and through its employees. Id.[5]

         The National Deaf Academy moved for final summary judgment, arguing that Counts I and II alleged medical malpractice claims and were time-barred because the two-year statute of limitations for medical malpractice claims had expired prior to the filing of the original complaint. See Townes, 197 So.3d at 1134. The trial court agreed, reasoning that although Counts I and II were "styled as [ordinary] negligence claims, " they "actually ar[o]se out of the rendering of medical care and services, " and, therefore, alleged medical malpractice claims. Accordingly, the trial court granted the National Deaf Academy's motion for summary judgment.

         Townes appealed and, upon review, the Fifth District reversed, concluding that Townes's claims alleged ordinary negligence. Id. at 1130. The Fifth District noted the nurses' deposition testimony that "the purpose of a TACT protective hold is to ensure the safety of the residents, and that non-medical personnel, such as sign language interpreters, also underwent TACT training." Id. at 1136. The Fifth District further reasoned that "[t]here was additional record evidence that the decision of whether to employ a TACT protective hold is to be made by the most senior person ...

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