LOIS VANCE, APPELLANT,
v.
OKALOOSA-WALTON UROLOGY, P.A., A FLORIDA PROFIT CORPORATION, AND/OR THOMAS D. ZACHOS, M.D., AS AN EMPLOYEE/AGENT AND/OR THOMAS D. ZACHOS M.D., INDIVIDUALLY, APPELLEES

Fla. 1st DCA | 2017-11-06
No. CASE NO. 1D16-4272
WOLF and BILBREY, JJ„ CONCUR.
228 So. 3d 1199 Florida District Court of Appeal, First District (2017) Positive Treatment
Cited by 4 cases

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Synopsis

Lois Vance appeals the dismissal of her amended complaint alleging she fell from an examination table after Dr. Zachos removed a step without replacing it before instructing her to descend. The court reversed, holding that the claim sounds in ordinary negligence rather than medical negligence, and therefore does not require compliance with medical malpractice presuit requirements.


Holding

The amended complaint sounds in ordinary negligence, not medical negligence. Jurors can evaluate the act of placing and removing a step using their common experience without requiring expert testimony on medical standards of care, so the claim does not trigger the medical negligence statutory requirements.


Headnotes

[1] A claim sounds in ordinary negligence, rather than medical negligence, when the alleged negligent act does not arise out of the rendering of, or failure to render, medica…

[2] The determination of whether a complaint sounds in ordinary or medical negligence hinges on whether the claim relies on the application of the medical malpractice standar…

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Key Quotes

“whether the claim arises out of the rendering of, or the failure to render, medical care or services”

Establishes the core test for distinguishing medical negligence from ordinary negligence

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Facts & Procedural History

Ms. Vance visited Dr. Zachos, a urologist, to have a catheter removed. The doctor provided a step for her to use to ascend onto the examination table.…

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Opinion of the Court
RAY, J.

RAY, J.

Lois Vance appeals a final order dismissing her amended complaint with prejudice for failure to comply with the presuit requirements for medical negligence claims and for failure to comply with the applicable statute of limitations. The narrow issue presented by this appeal is whether Ms. Vance’s amended complaint sounds in ordinary negligence rather than medical negligence. Because we agree with Ms. Vance that it is the former, we reverse and remand for further proceedings.

The amended complaint alleged that Ms; Vance visited Dr. Zachos, a urologist, at his office to have a catheter removed. In the examination room, the doctor provided a step for Ms. Vance to use to ascend onto the examination table. The doctor then moved the step away and performed the ■ procedure. After' the procedure, the doctor told Ms. Vance to go to the front desk and schedule another appointment for the following week. The doctor then left the examination room. Ms. Vance began to descend from the examination table, but because the step had been removed, she fell onto the floor. She alleged that the failure to replace the step created a known dangerous condition, and the doctor knew or should have known that he had not replaced the step for her. She claimed she suffered serious and permanent injuries due to her fall.

When evaluating whether a complaint sounds in ordinary or medical negligence, courts must determine from the allegations “whether the claim arises out of the rendering of, or the failure to render, medical care or services.” Doe v. Baptist Primary Care, Inc., 177 So.3d 669, 674 (Fla. 1st DCA 2015) .(citations omitted); see also § 766.106(1)(a), Fla. Stat. (2011) (defining a claim for medical negligence or malpractice). The core inquiry is “whether the claim relies on the application of the medical malpractice standard of care.” Holmes Reg’l Med. Ctr., Inc. v. Dumigan, 151 So.3d 1282, 1286 (Fla. 5th DCA 2014). Merely “labeling allegations as ‘ordinary negligence’ is not dispositive.” Shands Teaching Hosp. & Clinics, Inc. v. Estate of Lawson, 175 So.3d 327, 331 (Fla. 1st DCA 2015) (en banc). “Courts must look beyond the legal,labels urged by plaintiffs and ‘must[ ] apply the law to the well-pleaded factual allegations and decide the legal issue of whether the complaint sounds in simple or medical negligence.’ ” Id. (alteration in original) (quoting Dr. Navarro’s Vein Ctr. of Palm Beach, Inc. v. Miller, 22 So.3d 776, 778 (Fla. 4th DCA 2009)).

As we have explained before, the mere fact that “a negligent act occurred in a medical setting doesn’t make it medical negligence.” Lawson, 175 So.3d at 332; see e.g., Tenet St. Mary’s Inc. v. Serratore, 869 So.2d 729 (Fla. 4th DCA 2004) (medical center employee inadvertently kicking a patient); Lake Shore Hosp., Inc. v. Clarke, 768 So.2d 1251 (Fla. 1st DCA 2000) (patient’s slip and fall in hospital room); Broadway v. Bay Hosp., Inc., 638 So.2d 176 (Fla. 1st DCA 1994) (collapse of hospital bed). We have described ordinary negligence as something jurors can resolve “by referring to common experience,” whereas medical negligence requires “the help of experts to establish what is acceptable, appropriate, and prudent” because jurors cannot determine through “common experience” whether medical standards of care *1201were breached. Lawson, 175 So.3d at 332-33.

While there is no doubt that the line between ordinary and medical negligence may at times be difficult to draw, at this stage of the proceedings we do not believe Ms. Vance’s claim sounds in medical negligence. Jurors can use their common experiences to evaluate the act of placing and removing a step used by someone to get on and off a table, just as they could evaluate the act of pulling a chair out from under someone about to sit down. We note that our decision today rests solely on the allegations within the four corners of the amended complaint and should not foreclose a later challenge should the case morph into a medical negligence claim. Because we conclude that the amended complaint alleges a claim of ordinary negligence, we reverse and remand for further proceedings.

REVERSED and REMANDED.

WOLF and BILBREY, JJ„ CONCUR.


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Cited By

  • …understand that it is not always easy to distinguish between a claim for medical malpractice and a simple premises liability claim, but the cases do provide helpful guidance. For example, in Vance v. Okaloosa-Walton ---PAGE 5--- Urology, P.A., 228 So. 3d 1199, 1200 (Fla. 1st DCA 2017), the plaintiff fell while descending from the examination table following her examination by the physician. It seems that the doctor had provided a step stool for Ms. Vance to get onto the table, moved the stool during…
  • MC Manus v. Gamez (Fla. 2d DCA 2019)

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