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For years Florida courts have split hairs over whether the facts of a case sounded in medical malpractice because the injury occurred in a hospital or physician office setting. The Florida Supreme Court, in The Deaf Academy v. Townes, opined in April 2018, that plaintiffs should not be subjected to the complex presuit procedures for medical malpractice claims when it appears to be a matter of ordinary negligence. Recognizing the pre-suit procedures under Florida law are expensive and onerous, but still necessary to encourage early settlements and weed out frivolous medical malpractice claims, Justice Pariente, writing for the Court, explains any “doubt” as to whether a claim is for ordinary negligence or medical malpractice should be “generally resolved in favor of the claimant.” In the Court’s opinion, the facts of the case are instrumental to determining whether a case should be tracked as ordinary negligence or medical malpractice. The attorney must evaluate whether the injury was the result of rendering a diagnosis, care or treatment. The Court assists the attorney by defining these terms as “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.” In order to determine whether the presuit requirements of chapter 766 apply, the attorney should look to whether the plaintiff must rely upon the medical negligence standard of are as set forth in section 766.102(1).

Justice Pariente uses the example of Quintanilla, where the medical provider was sued for the nurse spilling hot tea on a patient. The court reasoned that while the tea may be a medical assistance to congestion, the act of the nurse deciding to offer tea and delivering it required no standard of care to be proven for how a proper delivery should happen. That could be proven through common sense. That was as example of ordinary negligence despite the injury happening in a medical facility where the patient was receiving medical care for her nasal congestion.

In Townes the Court opined when evaluating the factual scenario of a hospital employee leaving their keys and badge on a desk unattended where a psychiatric patient grabbed them and escaped the locked facility running into traffic and dying, that the case did not sound in medical malpractice.

While the opinion in Townes spends considerable time clarifying cases that factually fell on either side of ordinary negligence or medical malpractice, the bright line test is whether or not a medical expert would be required to testify as to whether the standard of care of the provider was breached and if that breach proximately caused the damage, loss or injury. If so, the pre-suit requirements must be followed.

Given the statute of limitations for bringing a claim of ordinary negligence is four years in Florida and the medical malpractice statute of limitations is two years from when you knew or should have known with reasonable diligence that malpractice may have occurred (but no more than four years from the incident as a statute of repose) the evaluation of whether a case sounds in medical malpractice or ordinary negligence is a task to be taken seriously by the attorney.

While seasoned medical malpractice attorneys could use Townes to better sort cases between ordinary negligence and medical malpractice, those dabbling in such cases may still find themselves scratching their heads. Thus a practice tip that may be considered is issuing a notice letter to the provider advising there is an intent to sue the facility for ordinary negligence, provide some facts known at that time, and to make a request that if the provider believes the allegations to sound in medical malpractice to advise immediately. Keep in mind that medical providers want an attorney to pass a statute of limitations deadline and may believe they are not duty bound to answer such inquiry. I suspect a judge later if challenged, would find the initial evaluating attorney was prudent in asking the provider in that initial letter to state their position.



The National Deaf Academy v. Townes, 43 Fla. L. Weekly S193a (Fla. S. Ct. Apr. 26, 2018)

Shands Teaching Hospital & Clinics, Inc. v. Estate of Lawson, 175 So.3d 327 (Fla. 1st DCA 2015)

Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468, 469 (Fla. 3d DCA 2006)