It might seem odd to defend against a claim of negligence by arguing you actually committed medical malpractice. But in Florida there may be good reason to offer such a defense. Florida has much stricter standards for medical malpractice lawsuits than ordinary negligence or personal injury claims. This can allow a clever defendant to get out of a negligence case by getting a judge to apply the higher malpractice standard.
Deaf Woman Loses Leg After Facility Employs Physical Restraint
But this trick does not always work, as a recent Florida appeals court decision illustrates. The victim in this case is a deaf woman who suffers from bipolar disorder. Her aunt had her admitted to a school and residential treatment facility that specializes in deaf and hearing-impaired individuals.
A psychiatrist employed by the facility authorized the use of Therapeutic Aggression Control Techniques (TACT) as part of the victim’s plan of care. This is basically a form of physical restraint used against a patient. Although the facility had a number of nurses, non-medical staff were also trained in the use of TACT.
One day in 2008, the victim was having an episode and began throwing rocks at windows within the facility. A nurse at the scene decided to employ TACT to restrain the victim. At one point, the victim wrapped her leg around the nurse, causing both of them to fall. The victim suffered serious injuries as a result of the botched TACT attempt, to the point where she required an above-the-knee amputation of her right leg.
The victim’s aunt sued the facility for negligence. The facility moved to dismiss, arguing this was actually a claim for medical malpractice, which itself was barred since the victim’s aunt failed to comply with Florida’s pre-suit requirements for malpractice cases. A trial judge sided with the facility and granted it summary judgment.
But the Florida Fifth District Court of Appeal reversed. The appeals court said there were “disputed issues of fact” regarding whether the facility’s use of TACT actually constituted medical care subject to the rules governing malpractice. The court said pointed to the fact non-medical personnel were trained to use TACT “to ensure the safety of the residents,” rather than provide medical care. In addition, the facility’s TACT protocol stated the decision to use such techniques were to be made by “the most senior person trained,” not necessarily a doctor or nurse. Accordingly, the victim’s aunt could proceed before the trial court to prove this was actually a case of negligence, not medical malpractice.
Get Help from a Florida Medical Malpractice Attorney
Large institutions will often employ every legal trick in the book to try and avoid liability for negligence (or medical malpractice). That is why, if you or a loved one has been injured due to someone else’s negligent conduct, it is important you work with an experienced Clearwater medical malpractice attorney who understands the law and will stand up for your rights. Contact the Law Office of Paul B. Genet, P.A. at (727) 538-8865 if you need to speak with someone about your case right away.
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