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North Broward Hospital District v. Slusher

Florida Court of Appeals, Fourth District

August 21, 2019

NORTH BROWARD HOSPITAL DISTRICT d/b/a BROWARD HEALTH CORAL SPRINGS, Petitioner,
v.
MICHAEL SLUSHER, Respondent.

         Not 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 petitioner.

          Michele K. Feinzig of Michele K. Feinzig, P.A., Coral Springs, for respondent.

          May, J.

         At 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.

         The 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 statute.

         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 the process.

         The 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 2005).

         In 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 or services.

Id. at 238-39; see also S. Miami Hosp., Inc. v. Perez, 38 So.3d 809 (Fla. 3d DCA 2010).

         The 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. ...


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