The 2nd District Court of Appeals has recently held that an evidentiary hearing may be required to determine whether conduct by a medical defendant constitutes medical care triggering the presuit investigation requirements set forth in Chapter 766, Fla. Statutes. In Lakeland Regional Medical Center v. Pilgrim, 2013 W.L. 561464 (Fla. 2nd DCA 2013), a patient claimed injury during an endoscopic procedure when a piece of a cytology brush broke off and became lodged in her pancreatic duct. The plaintiff’s attorney attempted to plead allegations of simple negligence to avoid the presuit medical malpractice requirements, including expert witness review.
The test in Florida for determining whether the presuit requirements are triggered is whether the conduct of the defendant must be judged by a medical standard of care. In this case, the court held that it could not make that determination based on the allegations of the complaint and the minimal hearing record before it. Therefore, it remanded the case for a determination by the trial court, possibly including affidavits or a limited evidentiary hearing.
It is encouraging to see the courts upholding the presuit medical malpractice requirements. However, this decision does open the door to plaintiffs to argue that an early determination of whether the medical malpractice presuit screening requirements should apply will have to wait for formal discovery to proceed. If you would like to discuss any aspect of this case, please do not hesitate to contact David M. Delaney or John D. Jopling.