Florida Appellate Court: Contaminated Drug Claim Is Not Medical Malpractice Claim

162017_132140396847214_292624_nOn December 12, 2014, the District Court of Appeal for the State of Florida Fifth Circuit (“Appellate Court”) issued an opinion in which it stated that the mere fact that a wrongful act occurs in a medical setting does not automatically transform the contested action into one that sounds in medical malpractice; the wrongful act must be directly related to the improper application of medical services and the use of professional judgment or skill.

The plaintiff alleged that he was admitted to the defendant hospital for cardiac bypass surgery. During the surgery, the plaintiff was administered contaminated heparin that caused him to develop a severe bacterial infection that led to the amputation of his left leg and right foot. The plaintiff alleged that the heparin supplier had issued a recall of its contaminated product prior to his surgery but the defendant hospital failed to have adequate procedures in place to respond to the recall.

The plaintiff’s complaint did not name as defendants the physicians or the other health care providers who were involved in his bypass surgery and he did not allege that the administration of heparin as part of the surgical procedure fell below the standard of care or that the health care providers knew or had reason to know that the heparin he was administrated was tainted. The plaintiff’s complaint focused on the administrative policies and actions of the defendant hospital in responding to the recall of the contaminated heparin and did not allege that the defendant hospital was vicariously liable for the negligence of its employees.

The Appellate Court stated that the primary test for whether a claim is one for medical malpractice is whether the claim relies on the application of the medical malpractice standard of care. The Appellate Court stated that if the negligent act occurs during the course of the medical procedure, the complaint sounds in medical malpractice; cases that do not involve professional medical judgment or skill sound in ordinary negligence.

In the case it was deciding, the Appellate Court stated that no medical judgment or skill was exercised by the defendant hospital and the allegedly wrongful act occurred months before the plaintiff’s bypass surgery (the plaintiff’s complaint alleged that the contaminated heparin had been recalled by its manufacturer more than four months before his surgery, and that the defendant hospital still had the recalled heparin in its stock at the time of the surgery). The alleged administrative failure of the hospital to remove the contaminated heparin from its stock was not unique to the hospital setting and does not involve professional medical judgment or skill. The Appellate Court held that the plaintiff’s claim sounds in ordinary negligence rather than medical malpractice, and therefore the Florida Medical Malpractice Act’s presuit notice requirements are not applicable to the facts of this case.

Source Holmes Regional Medical Center, Inc. v. Robert Dumigan, et al., Case No. 5D14-505.

If you were injured as a result of care provided (or not provided) in a hospital in Florida or a hospital in another U.S. state, you should promptly find a Florida medical malpractice lawyer (or a medical malpractice lawyer in your state) who may investigate your hospital claim for you and represent you in a case against a hospital, if appropriate.

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This entry was posted on Friday, December 19th, 2014 at 6:12 am. Both comments and pings are currently closed.

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