April 20, 2014
Dawkins v. Union Hospital District, — S.E.2d —, 2014 WL 1386880 (S.C. 2014)
Whether a tort action sounds in “medical malpractice,” as opposed to “general negligence,” or vice versa, is often critical. Medical malpractice actions must satisfy special requirements that include shortened limitations periods, statutes of repose, expert affidavits, and merit certificates. Suits sounding in ordinary negligence need not satisfy those requirements. Filing and prosecuting those suits is therefore not as onerous and expensive as filing and prosecuting medical malpractice actions.
In Dawkins v. Union Hospital District, — S.E.2d —, 2014 WL 1386880 (S.C. 2014), a hospital emergency room admitted a patient complaining about instability and possible stroke symptoms. Prior to receiving treatment, the patient attempted to use the restroom and fell, fracturing her right foot. In the ensuing malpractice suit, the patient claimed that the hospital was negligent in “failing to keep a watchful eye on a person who had originally complained of dizziness, headaches and instability.” The hospital moved to dismiss the suit due to the patient’s failure to file an expert affidavit and “notice of intent,” in violation of S.C. Code Ann. § 15–79–125(A) (Supp. 2012) – a statute providing that “Prior to filing or initiating a civil action alleging injury or death as a result of medical malpractice, the plaintiff shall contemporaneously file a Notice of Intent to File Suit and an affidavit of an expert witness.” The patient argued that this special filing was not required because her suit sounded in premises liability and not in medical malpractice. Specifically, she claimed that she was the hospital’s business invitee and that the hospital owed her a duty to guard against premises hazards. The trial court agreed with the hospital and dismissed the patient’s suit. The appellate court affirmed that decision.
The South Carolina Supreme Court reversed. The Court observed that “the distinction between medical malpractice and negligence claims is subtle” and that “there is no rigid analytical line separating the two causes of action” (citing Estate of French v. Stratford House, 333 S.W.3d 546, 555-56 (Tenn. 2011)). The Court also underscored that, although adjudication of medical malpractice actions generally requires medical expert testimony, “not every injury sustained by a patient in a hospital results from medical malpractice or requires expert testimony to establish the claim.” Examples of actions falling into the latter “general negligence” category are abundant. According to the Court, they include cases involving injuries caused by “falling ceiling tiles or improperly maintained hallways or parking lots” or by “nonmedical, administrative, ministerial, or routine care” mistakes.
Based on these criteria, the Court categorized the patient’s complaint as general negligence because it “makes clear that she had not begun receiving medical care at the time of her injury, nor does it allege [that] the Hospital’s employees negligently administered medical care. Rather, the complaint states that [the patient’s] injury occurred when she attempted to use the restroom unsupervised, prior to receiving medical care.”
The Court’s decision is open to criticism. First, for patients already admitted to hospital, falling accidents are generally categorized as medical malpractice (Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525 (Tex. 2011) (categorizing suit by a hospital patient who slipped on a wet floor while getting out of a bathtub as a “healthcare liability” claim); Littlepaige v. United States, 528 Fed.Appx. 289, 2013 WL 2501744 (4th Cir. 2013) (veteran patient’s FTCA claim against hospital alleging failure to follow dementia-related falls-precaution protocol categorized as sounding in medical malpractice under North Carolina law, which obligated patient to submit certification from a qualified medical expert)). For not-yet-admitted patients, the categorization can go both ways depending on the specifics of the negligence allegations against the hospital.
As in many other areas of tort law, here too, everything depends on the “untaken precautions” analysis (for seminal accounts of the “untaken precautions” approach, see Mark F. Grady, Untaken Precautions, 18 J. Legal Stud. 139 (1989); Mark F. Grady, A New Positive Economic Theory of Negligence, 92 Yale L.J. 799 (1982)). In the case at bar, no allegation was made that the restroom was unsafe for people’s use (e.g., that its floor was dangerously slippery). The alleged untaken precaution was the ER personnel’s failure to accompany the patient in the restroom. This failure could only constitute medical malpractice rather than ordinary negligence. The reason is simple: premises owners have no duty to accompany an adult person in a restroom. The patient’s claim that she ought to have been accompanied in the restroom was based on her medical condition, of which the ER personnel arguably should have been aware. If so, the fact that the patient hasn’t yet been admitted to ER was inconsequential. The extent to which hospitals are obligated to give medical attention to patients not yet admitted to ER depends on the applicable medical standards and the specifics of the “emergency room doctrine” in the given jurisdiction (see here).
The patient therefore had to submit the requisite expert affidavit and notice of intent. She could not use her “not admitted” status to categorize her suit as “premises liability” while complaining about the hospital’s failure to take precautions that only need to be taken for protecting patients in a certain medical condition. Importantly, not all individuals awaiting ER admission need to be accompanied in the restroom. To establish her entitlement to this special precaution, the patient could only rely on the applicable ER standards, as opposed to general premises liability. For further discussions of “medical malpractice vs. general negligence,” see here, here, here, here, here, and here.