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Appeals court ruling on patient fall cases

Medical Malpractice may cover Patient Falls

Appeals court finds that if an unstable patient falls while being escorted to receive medical treatment, it may or may not be medical malpractice.   

The distinction between a medical malpractice case and a general personal injury case is very important because malpractice cases are subject to many more onerous procedural rules that must be followed to avoid having the case thrown out.   In this case, a 99-year-old patient was being treated for skin cancer by a mobile radiation van that would come to her residence periodically.  On all but one occasion, an employee of the van’s corporate owner would bring a wheelchair to the lobby of the patient’s residence and wheel her to the van about one hundred yards away.  On the last occasion, a different employee went to the lobby and told the patient to follow her to the van.  On the way, the employee led the patient over a parking bumper without any warning or assistance.  The elderly patient fell, suffering serious injuries.  The patient sued the van’s owner for negligence, and the defendant filed a motion to dismiss the case because the patient had not complied with numerous mandatory medical malpractice procedural requirements.   According to the Fourth District Court of Appeal, the key question in determining whether a claim is one for medical malpractice is “whether the plaintiff must rely on the medical negligence standard of care as defined by the statute to prevail.”  In this case, the Court found that the allegations in the case appeared to allege simple negligence, not medical malpractice.  The Court concluded that the defendants had not established that there is a professional standard of care
applicable to “assisting a patient with transportation to a mobile radiation van.”  At such an early stage in the proceedings, the doubt must be resolved in favor of the
claimant, so the case was allowed to continue.

Mark E. Pomper, M.D., P.A. v. Ferraro, 206 So. 3d 728 (Fla. 4th DCA 2016).
McMillen Law Firm Comment:  When there is any doubt whether a case will fall under the malpractice rules or general personal injury rules, the safest thing to do is to treat it as if it is medical malpractice.  Otherwise, you might find out too late that you were wrong.

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