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Steve Buck v. Columbia Hospital Corp. of South Broward, Case No. 4D13-2165 (Fla. 4th DCA)

In Buck, the Fourth DCA affirmed a dismissal of a complaint for failure to comply with the pre-suit requirements of Chapter 766, Florida Statutes. The plaintiff, a personal representative, filed a wrongful death complaint alleging that the decedent was brought to the defendant hospital and admitted due to complications relating to her COPD. The complaint further alleged that the decedent was scheduled to have x-rays, and prior to the x-rays being taken, the hospital’s transport technicians dropped the decedent onto the x-ray table causing a lumbar spine fracture, which the plaintiff alleges was the cause of the decedent’s subsequent death. The hospital moved to dismiss the complaint for failure to comply with pre-suit requirements, and the trial court granted the motion.

Fla. Stat. 766.106 defines a “claim for medical negligence or claim for medical malpractice [as] a claim, arising out of the rendering of, or the failure to render, medical care of services.” The plaintiff argued that the complaint alleged a cause of action for ordinary negligence, and not medical negligence. The Fourth DCA noted that a claim for negligence is subject to Chapter 766’s pre-suit requirements “if the wrongful act is directly related to the improper application of medical services and the use of professional judgment or skill.” Claims for ordinary negligence are not subject to the pre-suit requirements. “When determining whether a complaint alleges a cause of action in medical negligence versus simple negligence, the key inquiry is whether the action arises out of medical diagnosis, treatment of care.” The Fourth DCA further noted that the words diagnosis, treatment or care should be accorded their plain and ambiguous meaning, which means ascertaining a patient’s medical condition through examination and testing, prescribing and administering a course of action to effect a cure, and meeting the patient’s daily needs during the illness.” The Fourth DCA concluded that the complaint alleged that hospital employees were engaged in the rendering of medical care or services in that they were involved in lifting the decedent from the transport gurney and placing her on the x-ray table as part of a medical procedure.”


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