As this blog has previously discussed, medical malpractice cases have certain procedural requirements, including pre-suit requirements, that are not required in other negligence cases. Plaintiffs must therefore determine if the case lies in medical malpractice or general negligence well before suit is filed.
A case recently decided by the Fourth District involved an argument by the plaintiff that the case was one of general, not medical, negligence, despite the act in question occurring in a hospital. In this case, the personal representative of the decedent’s estate filed a wrongful death lawsuit against a hospital. The complaint alleged that the decedent had been dropped onto an x-ray table, resulting in a spinal fracture. Due to her age and medical condition, there were limited appropriate options for treating the decedent’s broken back. The complaint alleged that the broken back ultimately caused her death.
The defendant moved to dismiss on the grounds that the plaintiff had failed to comply with the pre-suit requirements for medical malpractice cases. The plaintiff argued that the pre-suit requirements did not apply because the complaint stated a cause of action in general negligence, not medical malpractice. The trial court granted the motion to dismiss, and the plaintiff appealed.