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Boca Raton Personal Injury Lawyer > Blog > Medical Malpractice > Is Taking Away A Patient’s Walker An Act Of “Medical” Negligence?

Is Taking Away A Patient’s Walker An Act Of “Medical” Negligence?


There is a critical distinction in Florida law between ordinary negligence and “medical negligence,” i.e., medical malpractice. If you are, say, injured in a slip and fall accident at the store, you can file a personal injury lawsuit against the owner for negligence. But if you are injured while receiving medical care, the law requires you to jump through some additional hoops before you can go to court. Specifically, you need to provide “pre-suit” notice to the defendant that includes an expert medical opinion establishing the basis for the malpractice claim.

Florida Appeals Court Quashes Estate’s Lawsuit Against Hospital

There is, however, something of a gray area in the law. There are situations where a person’s injuries could be seen as either the result of medical malpractice or ordinary negligence. The Florida Supreme Court has said that when deciding which is which, a trial court must look to the “specific circumstances under which the injury occurred and the allegations in the pleadings.”

To give a specific example, consider this recent decision from the Florida Fourth District Court of Appeals, Martin Memorial Health Systems, Inc. v. Gorham. In this case, the victim went to the hospital because she felt ill. The victim required a walker. For some reason, the hospital would not let the victim use her own walker. A nurse told the victim’s family they would provide another walker or “would take care of it” should the victim need to leave her bed.

The next day, the victim tried to go to the bathroom and fell. The victim sustained three pelvic fractures. She later died due to complications arising from these injuries.

The victim’s estate sued the hospital. The estate did not follow the pre-suit notice requirement because it maintained this was a case involving ordinary negligence. The hospital asserted this was medical malpractice, and therefore the estate’s failure to comply with the notice rule required the court to dismiss the case. The trial court denied the motion, but the Fourth District reversed and ordered dismissal.

The Fourth District agreed with the hospital that the estate’s allegations raised medical negligence claims. Medical negligence relates to claims that are “directly related to medical care or services,” the appellate court noted. That included nursing services. Here, the estate’s complaint boiled down to a claim that the victim fell due to “negligent nursing conduct,” that is, the failure to provide her with a walker.

Speak with a Florida Personal Injury Lawyer Today

Personal injury claims against hospitals and nursing homes are often the most challenging due to the myriad of special state laws protecting their interests. That is why it is crucial to work with an experienced Boca Raton medical malpractice attorney who understands the law in this area. Contact Leifer & Ramirez today to schedule a free initial consultation with a member of our personal injury team.


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