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Fourth District Court of Appeal denies defendant's motion to dismiss complaint for plaintiff's alleged failure to follow medical negligence presuit requirements

On December 21, 2016, in Pomper v. Ferraro, No. 4D16-1287, the Fourth District Court of Appeal denied the defendant's certiorari petition to quash the trial court's denial of defendant's motion to dismiss the plaintiff's complaint for plaintiff's alleged failure to follow the medical negligence presuit requirements set forth in Section 766.106, Florida Statutes. The plaintiff's cause of action was premised on the alleged negligence of the attendant of a mobile radiation van who led the plaintiff from her home to the van without warning her about about a parking bumper in her path, causing her to trip and suffer resulting injuries. The plaintiff pled her cause of action as a simple negligence case not sounding in medical negligence. The defendant maintained that it was in fact a medical negligence case and that the plaintiff's failure to initiate the mandatory medical negligence statutory presuit mandated dismissal of the case. The Fourth DCA noted that in order to sound in medical negligence, the alleged wrongful act must be directly related to the improper application of medical services to the patient and the use of professional judgment or skill. The defendant pointed to several "transport" cases which had been determined by courts to sound in medical negligence. The plaintiff relied on a case indicating that "setting up" for treatment is to be distinguished form actual treatment and another case in which a hospital's failure to maintain corridor rails and benches or chairs for sitting and resting was deemed to involve an alleged failure to properly maintain commercial premises rather than medical negligence. The Fourth District Court of Appeal noted that any doubt as to the applicability of the statute it is generally resolved in favor of the claimant, and concluded that at this stage of the proceeding the facts were insufficiently developed to warrant dismissal.

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