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Florida Supreme Court rules that plaintiff's complaint alleging negligent physical restraint by National Deaf Academy personnel of resident not subject to medical negligence pre-suit requirements

On April 26, 2018, in The National Deaf Academy v. Townes, No. SC16-1587, the Florida Supreme Court affirmed a Florida Fifth DCA decision holding that a plaintiff’s complaint alleging negligent physical restraint by National Deaf Academy personnel of a resident was not subject to the medical negligence pre-suit requirements. The plaintiff, a deaf person previously diagnosed with impulse control disorder and other psychiatric disorders, was a resident of the National Deaf Academy, which operates as both a school and a residential treatment facility for deaf persons suffering from psychiatric and behavioral disorders.

The legal complaint arose out of an incident in which a nurse at the Academy attempted to physically retrain the plaintiff, thereby allegedly injuring her leg which subsequently had to be amputated. The plaintiff subsequently filed a complaint against the Academy, alleging ordinary negligence. The National Academy moved to dismiss the complaint on the basis that the plaintiff had not complied with the medical negligence pre-suit notice requirements before the expiration of the two-year statute of limitations applicable to medical negligence cases. After limited discovery was conducted demonstrating that the particular type of physical restraint attempted was a Therapeutic Aggression Control Technique (“TACT”) for which the employees of the Academy underwent training, the trial court agreed and entered summary judgment for the defendant.

On appeal, the Fifth DCA reversed, holding that the purpose of a TACT protective hold is to ensure the safety of the residents, and that non-medical personnel, such as sign language interpreters, also underwent TACT training. The Fifth DCA concluded that the TACT protective hold on the plaintiff was not for treatment or diagnosis of any condition, was not employed to meet Perry’s daily needs during care and did not require medical skill or judgment as non-medicalstaff were taught the procedure and were authorized to decide whether to employ it.

The Florida Supreme Court agreed, holding that in order for the “onerous” presuit requirements and restrictions of the medical malpractice statutory scheme to apply, the act from which the claim arises must be directly related to medical care or services, which require the use of professional judgment or skill. The Florida Supreme Court noted that the Fifth DCA decision conflicted with the First DCA’s decision in Shands Teaching Hospital & Clinics, Inc. v. Estate of Lawson, 175 So. 3d 327 (Fla. 1 st DCA 2015), holding that a claim arising out of a psychiatric hospital employee leaving her keys and badge unattended, which resulted in a patient’s death, sounded in medical malpractice. The Florida Supreme Court accordingly disapproved of the First DCA’s decision.