Wednesday, January 25, 2012

General Negligence or Medical Negligence?

In Stubbs v. Surgi-Staff, Inc. (4D10-691), the Fourth District addressed the distinction between general negligence and medical negligence. 

With regard to the facts, the court stated: "Together, Stubbs’ deposition and Rivera’s affidavit establish the following undisputed facts. Stubbs was given contrast dye for a CT scan. Prior to the procedure, she was introduced to Rivera, a nurse, not an orderly as alleged in the complaint. During the scan, Stubbs began to vomit. After the scan was complete, the CT technician called Rivera into the room to assess Stubbs, believing she was suffering an allergic reaction to the dye. Rivera instructed Stubbs to move from the CT table to a gurney he brought into the room, but Stubbs fell and was injured when she attempted to get off the table and move to the gurney. Subsequently, Rivera gave Stubbs oxygen and attached EKG leads and she was treated by ER doctors."

Based upon those facts, the court concluded: "We find that the trial court correctly applied the controlling case law in concluding that the complaint sounded in negligence attributable to Rivera’s provision of medical care and services. ...... As in Neilinger v. Baptist Hospital of Miami and Indian River Memorial Hospital, Inc. v. Browne, we find that the gravamen of the negligence alleged in the instant case arose from the provision of medical care and services."

In a concurring opinion, Chief Judge May wrote:
I concur in the majority opinion and write to express my concern about the proverbial slippery slope we have travelled down when we began to dissect every minute of a medical procedure to determine if something that occurs during the procedure is medical negligence or general negligence. Not surprisingly, this issue most often arises when someone has missed the two-year statute of limitations or failed to comply with the pre-suit screening process for a medical negligence claim. When that happens, lawyers creatively argue that, notwithstanding the plaintiff was a patient undergoing a medical procedure, the moment in time when the plaintiff was injured involved general negligence. In my view, once a medical procedure has begun, whatever happens during that procedure should be subject to the requirements for filing a medical negligence action if the allegations are directed at medical personnel.

Summary Judgment Affidavits

In Helping Hand Private Foundation, Inc. v. Ocean Palm Beach Club, Inc. (5D10-4403), the Fifth District reminded that when filing a summary judgment motion, "supporting affidavits are required to be 'made on personal knowledge, . . . set forth such facts as would be admissible in evidence, and . . . show affirmatively that the affiant is competent to testify to the matters stated therein.'” The court also pointed out that it had previously reversed a summary judgment order involving the same parties on the same grounds. Helping Hand Private Foundation, Inc. v. Ocean Palms Beach Club, Inc., 71 So. 3d 201 (Fla. 5th DCA 2011).