What’s Not Malpractice

By: Ted Babbit
Published: October 2015

Holmes Regional Medical Center, Inc. v Dumigan, 151 So. 3d 1282 (Fla. 5th DCA 2014) was a case in which the plaintiff entered the hospital for cardiac bypass surgery and left the hospital as a double amputee. Plaintiff alleged that he was administered contaminated heparin as a result of which he suffered severe bacterial infections which resulted in the eventual amputation of both of his legs. He filed suit against the hospital for failing to properly respond to a recall of the contaminated product prior to its use during plaintiff’s surgery and alleged that the hospital failed to have appropriate procedures in place to respond to the recall.
It was undisputed that prior to filing suit, plaintiff did not comply with the presuit requirements of the Florida Medical Malpractice Act. Plaintiff contended that the basis for his complaint was not a violation of the standard of care by any health care worker. The defendant moved to dismiss the complaint alleging that the allegations constituted alleged medical malpractice and plaintiffs, therefore, should be required to provide the necessary affidavits and presuit requirements of the malpractice act. The trial court refused to dismiss the complaint and the hospital petitioned for certiorari.
The Fifth District agreed with the plaintiff. The District Court noted that none of the doctors who participated in the surgery were defendants in the lawsuit and that the plaintiffs did not allege that the administration of heparin was below the standard of care. Plaintiffs alleged that the negligence of the hospital was an administrative act rather than a medical act and that the Plaintiff was, therefore, not required to comply with the presuit screening provisions. The District Court agreed with the plaintiff. At Page 1283 it stated:

It is axiomatic 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 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 District Court reviewed a number of Florida cases which have turned on the same question as the case under discussion. The operative question in all of those cases was whether the negligent act occurred during the course of the medical procedure. If it did, the case most likely is one of medical malpractice. In the case at bar, the negligent act of failing to eliminate from its inventory the contaminated heparin occurred long before the surgery and there was no allegation that giving uncontaminated heparin during the surgery was malpractice. To the contrary, the failure to give heparin would undoubtedly constitute surgical malpractice.
The Court also discussed a number of out-of-state cases including Turner v. Steriltek, Inc., No. M2006-01816-COA-R3-CV, 2007 Tenn. App. LEXIS 790, 2007 WL 4523157, at *8 (Tenn. Ct. App. Dec. 20, 2007) in which a Tennessee court found that an action against a hospital did not sound in medical malpractice when it was based on the failure to have proper procedures in place to ensure that instruments were properly sterilized. The Tennessee court found that decision was an administrative decision made well before the surgery and the making of that decision did not involve medical judgment.

At Page 1288, the Fifth District held
In this case, no medical judgment or skill was exercised
by HRMC, and the allegedly wrongful act occurred
months before Mr. Dumigan’s surgery. Moreover,
HRMC’s decision to administer heparin is not the
gravamen of the complaint. Indeed, the failure to
administer a blood thinner during the procedure would
undoubtedly fall below the acceptable standard of
care. Rather, the allegedly wrongful act was HRMC’s
administrative failure to properly remove heparin from
its inventory, which it knew or should have known, had
been recalled. This alleged failure of administrative
policy is not unlike the failure of a grocery store to
remove a tainted product after having been notified
of a recall. Thus, HRMC’s allegedly wrongful act
is not unique to the hospital setting and does not
involve professional medical judgment or skill. For
these reasons, the claim sounds in ordinary negligence
rather than medical malpractice, and the FMMA’s
presuit notice requirements do not apply.

Whether or not a case is a medical malpractice case is often important to the outcome. There is a huge difference between proving ordinary negligence as opposed to medical malpractice. Indeed, the statute of limitations may be different and the necessity for experts could vary wildly. This case collects the research on the subject of when a case sounds in medical malpractice and when it does not.