By Ted Babbit
It is not the purpose of an article such as this to criticize the reasoning of a Court in arriving at an opinion. Nevertheless, the recent en banc decision of the First District in Shands Teaching Hospital and Clinics, Inc. v. The Estate of Ashley Lawson, 48 Fla. L. Weekly D2000 (Fla. 1st DCA Aug. 27, 2015), left a portion of that Court and this writer perplexed. The facts of the case were simply that plaintiff’s decedent was confined to the defendant’s locked psychiatric facility because she was confused and suicidal. It was undisputed that such confinement was medically necessary and that the patient could not be left with the means of leaving the facility unattended. Two months after she was admitted, she took an employee of the hospital’s unattended keys and badge, escaped and made her way to an interstate highway where she was struck by a semi-truck and killed.
The Estate sued the hospital based on ordinary negligence and the hospital moved to dismiss for failure to comply with Chapter 766 of the Florida Statutes claiming that the case sounded in medical negligence and not ordinary negligence.
Noncompliance with the Medical Malpractice Reform Act in a case involving medical malpractice has been held to impose material and irreparable harm to the medical defendants so as to require a grant of certiorari relief. See Baptist Med. Ctr. of Beaches, Inc. v. Rhodin, 40 So 3d 112 (Fla. 1st DCA 2010) and Holmes Reg’l. Med/ Ctr., Inc. v. Dumigan, 151 So. 3d 1282 (Fla. 5th DCA 2014).
The case initially resulted in a three way spilt between the members of the three judge panel and a resultant en banc analysis consideration ensued. The operable question was whether the allegations of the complaint sounded in ordinary negligence, thus avoiding the requirement of presuit screening, or medical negligence which would require presuit compliance. The question as stated by the Court at D2000 was
“The task for the courts is to “decide from [the allegations] whether the claim arises ‘out of the rendering of, or the failure to render, medical care or services.’”
The decision of the en banc panel of the First District varied widely and resulted in several dissents but the majority concluded at D2001 that “The complaint alleges that Shands had a legal duty to confine Ms. Lawson within the locked unit, where she had been admitted because her psychiatric condition demanded the safety and security of a “locked unit”. . . . we agree with Shands because under § 766.106(1) (a), the harm alleged in the Complaint arose from Shands’ duty (and failure) o confine Ms. Lawson inside the hospital, which was the very service that the locked unit existed to provide. Because the breach arose from Shands’ provision, and ultimate failure, to keep Ms. Lawson’s confined within its locked unit, and was the service that Ms. Lawson’s condition allegedly required, we conclude that the Estate’s claim arises out of the medical care, treatment, and services provided to her for purposes of § 766.106(1)(a). (emphasis in original)
The problem with this reasoning is that the conclusion of the First District does not seem to follow from the facts. It is hardly logical that the primary service that was being provided to plaintiff’s decedent was keeping her locked up. Our society long ago concluded that simply locking up mental patients for the rest of their life was nothing more than imprisonment. We no longer simply imprison patients because of their mental status. It was undisputed and, therefore, testimony, let alone expert testimony, was unnecessary to prove that plaintiff’s decedent needed to be confined in order to provide her medical treatment. The adequacy of that medical treatment was not in dispute nor questioned in the complaint. The operable question was, assuming that such confinement was necessary, were adequate precautions taken to ensure that the confinement was adequate. The Court gives several examples of what kind of medical expert testimony might be provided in this case. At Page 2002 the Court suggests
Medical experts might address questions like:
- In a locked hospital unit confining psychiatric patients against their will, must employees’ keys and badges be kept “attended” on their person –perhaps pinned to a shirt or hanging around a neck – while caring for patients?
- If acceptable security policies allow for (or require) keys and badges to be stored away from patients and employees in a locked psychiatric unit, how are they to be stored given the wishes of some patients to escape?
- The complaint alleges that the keys and badge were left unattended for “an unreasonable” period of time; what is a reasonable period of time for an employee to leave keys and a badge unattended?
- Given Ms. Lawson’s suicidal and impulsive condition and need for locked unit, psychiatric services, did Shands act acceptably in allowing her to move about the unit, where she could obtain keys, badges, and access to exits, or was confinement to her room or bed required?
It is hard to understand what kind of medical background or training would allow the answer to these questions to be given that is not within the ordinary knowledge of anyone without medical training. Where in medical school is there a discussion about where keys and badges should be kept or how to keep doors locked? The Court discusses two cases in an effort to differentiate medical malpractice standards from ordinary negligence. In Robison v. Faine, 525 So. 2d 903 (Fla. 3rd DCA 1987) an unsupervised psychiatric patient with a violent history attacked the plaintiff when she was alone in her room. There the Court found that the claim to be “in effect, a premises liability case arising out of a criminal attack by a third party” and emphasized that the harm was “independent of any medical diagnosis, treatment or care.”
In Joseph v. University Behavioral LLC, 71 So. 3d 913 (Fla. 5th DCA 2011), a patient with a violent background attacked the plaintiff twice after the plaintiff had warned the facility about the patient’s violent tendencies and asked to be protected. The Fifth District in that case concluded that that was a case of ordinary negligence because there was no evidence of the plaintiff’s injuries having resulted from any psychiatric decision.
With all due respect to the First District, both of those cases require medical judgment as to the nature of the assailant’s dangerous psychiatric tendencies certainly to a far greater extent than the issue of whether keys should be left unattended in a locked mental facility. In the Shands case, on the other hand, there was no dispute about the necessity to confine the plaintiff’s decedent. No one is going to testify about the extent of the necessary confinement. All of that is undisputed. The only question was whether leaving the means to elope easily accessible was negligent or not. How a jury of lay persons could not make that decision without expert medical testimony is perplexing at best.
This case contains a number of citations about the issue of whether a case sounds in ordinary negligence or medical malpractice. While a highly divided court concluded that these facts require expert testimony, the resulting opinion leaves little guidance on that subject.