Are Administrative Negligence Claims Against Hospitals Subject to Medical Malpractice Act Requirements?

By Herron Bond

Earlier this month the Supreme Court of Florida heard arguments in Burns v. Palms West Hospital (SC12-1387), a dispute revolving around claims for administrative negligence brought against a hospital for continuing to retain physicians who had previously refused to treat patients with certain emergency medical conditions.
In 2006, a patient with a severe gastrointestinal condition was admitted to Palms West Hospital. The Hospital, party to a contract with the State of Florida to provide 24 hour emergency medical care in the field of gastroenterology, contacted six physicians under its employ to provide care. All six refused to respond to the call and the patient subsequently died while being transported to another hospital.
One month later, Enrique Casasnovas was admitted to the Hospital with a similar condition. Again, the Hospital’s six gastroenterologists refused to provide care and Casasnovas was transferred to another hospital after a four hour delay. A short time after being transferred, he suffered a cardiac arrest, which led to his death several weeks later.
The Personal Representative for Casasnovas’ estate filed suit against the Hospital under section 766.110 of the Medical Malpractice act and under a theory of administrative negligence for failing to terminate the six gastroenterologists despite the 24 hour care agreement with the State and knowledge of the physicians’ previous failure to provide services to patients with emergency conditions. The Hospital argued that the claims should be dismissed because the Estate failed to comply with the pre-suit requirements of the MMA. To this point, the Estate responded that it was under no obligation to comply with the Act because its claims were founded in administrative negligence, not medical malpractice. The Fourth DCA ruled in favor of the Hospital, finding that “the medical negligence umbrella is wide and often encompasses business decisions which result in injury to the patient.” The Estate sought discretionary review by the Supreme Court of Florida.
In its initial brief to the Court, the Estate first urged that the pre-suit provision of the MMA should be narrowly construed because it restricts access to the courts. Pointing to two Florida appellate decisions, the Estate claimed that this provision (in its narrowly construed form) requires a defendant to prove that the use of a medical negligence standard of care is necessary for the plaintiff’s claim. Liles v. P.I.A. Medfield, Inc., 681 So.2d 711 (Fla. 2d DCA 1995); Pierrot v. Osceola Mental Health, Inc., 106 So.3d 491, 493 (Fla. 5th DCA 2013). According to the Estate, the Fourth DCA based its ruling on two findings, neither of which considered the necessity of a medical negligence standard of care: First, the court considered causation, ruling that the claims “[are] medical negligence claim[s] when [the Estate] is claiming that [the decedent’s] death resulted from the lack of treatment.” Second, the court found that the claims are for medical negligence because they “would likely be proved using the prevailing standard of care for hospitals.”
The Estate argued that the Hospital would not have been able to satisfy its burden of proving that a medical standard of care was necessary for the claims at issue had the Hospital properly construed the pre-suit requirements. According to the Estate, the claims could have been brought under an administrative negligence standard because the claims were based on the Hospital’s administrative decision-making and the physicians’ non-medical decision to refuse care. The Estate claimed that the physicians’ refusal was “part of an ongoing business-decision dispute between the physician groups” and that their absence had nothing to do with their medical assessments of the patient. Further, the Estate cited similar cases in which courts allowed administrative negligence claims in a health care setting. Joseph v. University Behavioral LLC, 71 So.3d 913 (Fla. 5th DCA 2011)(Psychiatric facility failed to separate patients despite a request, resulting in a physical altercation); Acosta v. HealthSpring of Fla., Inc., 2013 WL 3723310 (Fla. 3d DCA July 17, 2013)(Hospital delayed the patient’s transfer to another hospital to secure a “preferred provider” rate at a specific facility); Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002 (Fla. 3d DCA 1997)(Hospital mislabeled a urine sample); Burke v. Snyder, 899 So.2d 336 (Fla. 4th DCA 2005)(Hospital negligently hired a physician who sexually assaulted a patient during a medical examination).
Next in its initial brief, the Estate argued that the Fourth DCA failed to address its statutory claim under §766.110 of the MMA. This provision requires the Hospital to “adopt procedures for selection and review of the medical care and treatment that its medical staff was rendering to patients” and “supervise that medical staff to ensure that its risk management processes were being diligently carried out.” According to the Estate, the Hospital violated this statute by retaining these gastroenterologists, thereby jeopardizing future patients’ access to medical care.
Finally, the Estate claimed that Fourth DCA’s grant of certiorari relief was improper because the lower court did not depart from the essential requirements of the law. According to the Estate, the lower court’s ruling that the claims fell outside of medical negligence would constitute a legal error (assuming arguendo that the ruling was erroneous), falling short of a “departure from the essential requirements of law.”
In its reply brief, the Hospital argued that the claims are “for medical negligence” because the underlying conduct of the physicians is medical in nature. To this point, the Hospital cited § 766.106(1)(a), Fla. Stat. (2008), which defines a “claim for medical negligence” as “a claim, arising out of the rendering of, or the failure to render, medical care or services.” The Hospital urges that this definition clearly includes the claims at issue in this case because without the physicians’ “failure to render” medical care, no administrative action by the Hospital would have been necessary. The Hospital drew a comparison to Tunner v. Foss, 655 So. 2d 1151 (Fla. 5th DCA 1995), in which the Fifth DCA ruled that a plaintiff’s claims were “for medical negligence” where a doctor refused to “obtain reasonable and necessary consultations from specialists/and or hospitalize” the decedent, even though the physician’s actions were motivated by a desire to avoid economic loss that would result from obtaining the consultations. According to case law cited by the Hospital, claims derived from the wrongdoing of a physician must rely upon the medical negligence standard of care. Burke v. Snyder, 899 So. 2d 336 (Fla. 4th DCA 2005). Thus, the MMA would apply to common law and statutory claims in this case.
Next, the Hospital argued that the pre-suit requirements of the MMA should apply even if the claims were not found to rely on medical negligence by the physicians. The Hospital provided two justifications for the argument. First, the pre-suit requirements are not limited to negligence claims, pointing to several situations in which courts and the legislature have recognized that the provision applies even when the claim does not rely on a medical standard of care (intentional torts, contract claims, claims derived from actions by nonprofessionals, and claims based on a business decisions made by a hospital). Second, the Hospital argued that its administrative actions ,would be subject to a medical standard of care, regardless of the underlying conduct of the physician, because those actions are “professional services involving medical judgment and skill.” The Hospital pointed to Florida courts’ recognition that “the ongoing duty to review and evaluate medical staff at issue in this case is part of the delivery of medical services to the public” O’Shea v. Phillips, 746 So. 2d 1105, 1109 (Fla. 4th DCA 1999) and 2003 amendments to the MMA, which substituted the term “medical malpractice” for the broader term “medical negligence.” §766.106(1)(a), Fla. Stat.
Regarding the claim that the pre-suit requirements restrict the Estate’s access to courts, the Hospital responded by arguing that the provision applies uniformly to all plaintiffs asserting medical malpractice claims and, in order to uphold the intent of the legislature, mere procedural difficulty should not be sufficient to circumvent the Act.
Finally, the Hospital argued that the lower court’s ruling that the claims fell outside of medical negligence constituted a departure from the essential requirements of law because, after heavy litigation, courts have determined that claims such as the plaintiff’s fall within the MMA.