NORTH BROWARD HOSPITAL DISTRICT d/b/a BROWARD HEALTH CORAL SPRINGS, Petitioner,
MICHAEL SLUSHER, Respondent.
final until disposition of timely filed motion for rehearing.
Petition for writ of certiorari to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; William W.
Haury, Judge; L.T. Case No. CACE 19-005942.
Timothy D. Kenison and William T. Viergever of Sonneborn
Rutter Viergever Burt & Lury, P.A., West Palm Beach, for
Michele K. Feinzig of Michele K. Feinzig, P.A., Coral
Springs, for respondent.
issue is whether a nurse who allegedly caused a patient,
designated as a "fall risk," to fall while helping
the patient out of his hospital bed sounds in medical
negligence. We answer the question in the affirmative and
grant certiorari relief.
hospital petitions for a writ of certiorari from an order
denying its motion to dismiss. The hospital argues the
plaintiff's failure to comply with the presuit
requirements of Florida's medical malpractice statute,
section 766.106, Florida Statutes (2019), requires dismissal.
The plaintiff responds that the allegations sound in general
negligence, which does not require compliance with the
plaintiff was admitted to the hospital to undergo medical
procedures. The hospital classified the plaintiff as a
"fall risk." The day after admission, the plaintiff
fell while being transferred from a hospital bed to use the
bathroom when the nurse assisting him answered her phone in
hospital moved to dismiss the complaint. At the hearing, the
hospital argued that the plaintiff failed to comply with the
presuit requirements of Chapter 766 and that the complaint
should be dismissed. Plaintiff's counsel responded that
the nurse's actions did not involve professional skill or
judgment. The trial court denied the motion. From that order,
the hospital now petitions this Court for certiorari relief.
To be a
medical malpractice claim, the cause of action must arise
from medical, dental, or surgical diagnoses, treatment or
care. JB v. Sacred Heart Hosp. of Pensacola, 635
So.2d 945, 947 (Fla. 1994). "[T]he alleged wrongful act
must be directly related to the improper application of
medical services to the patient and the use of professional
judgment or skill." Reeves v. N. Broward Hosp.
Dist., 821 So.2d 319, 322 (Fla. 4th DCA 2002). The test
is whether the claim can exist independent of any standard of
care imposed on a health care provider. Mobley v. Gilbert
E. Herschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA
Indian River Memorial Hospital v. Browne, 44 So.3d
237 (Fla. 4th DCA 2010), we granted certiorari and held that
a similar claim sounded in medical negligence. There, the
complaint alleged that an orderly was negligent in leaving a
patient, who had been admitted to the emergency room,
unattended in a hospital bed with the guardrail down:
The complaint alleges a medical negligence claim. The
standard of care for the hospital's treatment of Browne
is based in part on the hospital's evaluation of his
medical condition when he was admitted to the emergency room.
Another aspect of plaintiff's claim is that the hospital
failed to implement adequate procedures to protect emergency
room patients from falling from hospital beds. The adequacy
of the hospital's procedures depends on the prevailing
professional standard for managing and supervising those
admitted to emergency rooms. These types of issues arise out
of the rendering of, or the failure to render, medical care
Id. at 238-39; see also S. Miami Hosp., Inc. v.
Perez, 38 So.3d 809 (Fla. 3d DCA 2010).
hospital also relies on Buck v. Columbia Hospital Corp.
of South Broward, 147 So.3d 604 (Fla. 4th DCA 2014).
There, the complaint alleged the hospital's employees
accidentally dropped the patient onto a hard x-ray table
surface from a gurney. Id. at 605. ...