Potential clients, and even other lawyers who do not specialize in medical malpractice, often ask “Do I have a medical malpractice case?” As it turns out, that can be a difficult question to answer. If a patient slips and falls in a hospital, is it medical malpractice? If I believe a paramedic or emergency medical technician negligently injured me, is that medical malpractice?
Medical Malpractice Laws in Florida
The Florida laws that govern medical malpractice and related matters are found in Florida Statutes Chapter 766. Medical malpractice, also referred to as medical negligence, has a very specific definition created by Florida law.
Who Is a ‘Health Care Provider,’ Anyway?
The first step in deciding whether a case is medical malpractice, is to identify whether the person or facility you believe to have committed negligence is a "health care provider.” Florida statute 766.202 specifically identifies all professions and facilities that are "health care providers". It does so by identifying those professions and facilities by their licensing statutes.
There are some surprising exclusions to the definition of health care provider or facility. A hospital and a sub-acute hospital are both health care facilities, but a nursing home is not. Nurse practitioners and nurses are health care providers, but certified nursing assistants (CNA's) are not. Paramedics and emergency medical technicians also are not health care providers according to Florida statute 766.202.
Were the Provider’s Actions Related to Medical Care?
Identifying a health care provider is just the first step. The second question that must be answered is whether the action of the health care provider was directly related to medical care or services that required the use of professional judgment or skill.
That is a very "legal" definition, given to us by the Florida Supreme Court when it has been called upon to decide whether a case was medical malpractice or not. If you're curious, the case that definition comes from was National Deaf Academy v. Townes, 242 So. 3d 303 (Fla. 2018).
The Grey Area in Medical Malpractice
Simply stated, to have a medical malpractice case, the negligent party must have been a health care provider or health care facility, and they must have been in the act of providing medical care when the negligence occurred.
Like many things in law, though, there is a grey area. Florida courts have to step in at times to decide whether a case is medical malpractice or not.
Florida courts have held that a case in which a patient fell off a stretcher in a hospital and suffered head injuries was medical malpractice because it involved issues related to the evaluation of the patient and the policies and procedures of the hospital.
A case in which a woman died after being Baker Acted was not medical malpractice because she was committed to a mental health facility, which was not a defined health care facility and it did not involve a medical standard of care.
Also, a case in which a hospital failed to prevent the administration of a recalled medication was not medical malpractice, because it did not require the use of professional judgment or skill.
Be sure to consult with an experienced medical malpractice attorney. Identifying whether your case is medical malpractice is extremely important. An error in identifying the applicable law could result in the loss of your case or a significant limitation on your available recovery.