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Florida Fifth DCA rules that complaint alleging negligent supervision of inpatient at defendant behavioral center sounds in general negligence rather than medical malpractice and is therefore not subject to presuit requirements of Florida Statutes Chapter 766

On September 24, 2021, in Lifestream Behavioral Center, Inc. v. Allerton, No. 5D21-884, the Florida Fifth DCAdenied a certiorari petition filed by the defendant in a pending negligence lawsuit. The defendant was seeking to overturn a trial court order denying the defendant’s motion to dismiss the complaint on the grounds that the plaintiff failed to comply with Florida’s statutory presuit requirements for medical negligence lawsuits found in Florida Statutes Chapter 766. The plaintiff, the Personal Representative of the Estate of a deceased former inpatient at the defendant’s behavioral center, alleged that the decedent had suffered from a mental illness, that during his admission he was a suicide risk, that he should have been under constant visual observation to ensure he did not commit suicide, and that in contravention of those orders, the decedent was allowed unsupervised access to an unlocked bathroom where he was eventually found hanging. The Fifth DCA agreed with the trial court that in its current form, the Estate’s complaint sounds in general negligence rather than medical malpractice, and that Chapter 766’s presuit requirements are therefore inapplicable. The Court noted, as its sister court did in McManus v. Gomez, 276 So. 3d 1005 (Fla. 2d DCA 2019), that the decision rested solely on the four corners of the complaint and that “our opinion should not be read to foreclose a later challenge should the case morph into one grounded in medical negligence.”

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