“Medical Malpractice” or General Negligence?

April 28, 2013

Categorization of a tort action as a suit for “medical malpractice,” as opposed to general negligence, or vice versa, can be crucial. By making this categorization, courts determine whether the suit must satisfy the special requirements for filing “medical malpractice” suits that include shortened limitations periods, statutes of repose, expert affidavits and merit certificates.

Two very recent decisions, described below, deal with this important issue.

Churchill v. Columbus Community Hosp., — N.W.2d —-, 285 Neb. 759, 2013 WL 1776746 (Neb. 2013)

The plaintiff underwent aquatic physical therapy at the defendant’s clinic. When the session ended, as she was descending the steps of the clinic’s aboveground pool, she slipped and fell on the wet tile floor, injuring her arm and wrist. She sued the defendant, arguing that her suit is subject to the general 4-year limitations period that had not expired, rather than to the 2-year limitations period for “professional negligence” suits that had expired.

Nebraska Supreme Court disagreed: it decided that the 2–year statute of limitations, Neb. Rev. Stat. §§ 25–208 & 25–222, applied. The Court reasoned – rightly – that physical therapy is a professional service that requires licensing and accreditation and rejected the plaintiff’s characterization of her suit as based upon premises liability.

In support of this decision, the Court cited a number of important precedents: Swassing v. Baum, 240 N.W.2d 24 (Neb. 1976) (a blood-typing test incorrectly reported by doctor’s employee is “professional negligence”); Stanley v. Lebetkin, 123 A.D.2d 854 (N.Y. 1986) (suit by a plaintiff who fractured an ankle while getting off a doctor’s examining table is a “medical malpractice” action barred by the special statute of limitations following the plaintiff’s failure to bring her claim within the timeframe for “medical malpractice” actions); 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 “health care liability” claim).

The Court also quoted Rome v. Flower Memorial Hosp., 635 N.E.2d 1239 (Ohio 1994) –a decision in which it addressed two consolidated cases. In one of those cases, the plaintiff fell off an x-ray table and alleged that the defendant’s employee failed to properly secure the footboard. In the second case, the plaintiff was injured after a component of his wheelchair collapsed while he was being transported from the physical therapy department. The Court decided that both cases presented a “medical claim” barred by the special 1–year statute of limitations.

I’d like to add two decisions to the Court’s collection: Husby v. S. Ala. Nursing Home, Inc., 712 So. 2d 750, 751–54 (Ala. 1998) (suit involving a nursing home resident who fell out of bed, fractured her femur and died shortly after femoral surgery categorized as “medical malpractice”) and Chandler v. Opensided MRI of Atlanta 682 S.E.2d 165 (Ga. App. 2009) (instructing a lower court to determine whether a suit by a patient who sustained injury from falling on the floor from an MRI table alleges “medical malpractice” rather than garden-variety negligence against the MRI technician and his employer).

Egan v. Chambers, — P.3d —-, 2013 WL 1775452 (Nev. 2013)

This decision involved a suit alleging surgery-related negligence against a podiatric doctor. The plaintiff filed her suit without submitting to court an affidavit-of-merit that, under Nevada statute, must accompany any suit alleging “medical malpractice” against “physicians, hospitals, and hospital employees.”

The Court held that the affidavit-of-merit requirement only applies to “medical malpractice or dental malpractice” actions, rather than to all suits for professional negligence (the Court overruled its previous precedent that required a merit affidavit for any professional negligence suit). The Court ruled that, since podiatrists are not licensed physicians, suits against them do not fall into the “medical malpractice” category. The Court therefore decided that the plaintiff’s suit can proceed without an affidavit from a medical expert.