CLAIM ARISING OUT OF THE ALLEGED FAILURE TO COMPLETE A MEDICALLY NECESSARY PATIENT TRANSFER AS PART OF A SCHEME TO INCREASE ADMISSION RATES OF A MEDICAL CENTER FOR FINANCIAL REASONS, STILL ARISES OUT OF A “FAILURE TO RENDER MEDICAL CARE,” AND REQUIRES COMPLIANCE WITH THE PRESUIT NOTICE REQUIREMENTS.

Rockledge, HMA LLC. v. Lawley, 45 Fla. L Weekly D1282 (Fla. 5th DCA May 29, 2020):

The issue presented was whether a claim arising out of the alleged failure to complete a medically necessary transfer as part of a scheme to increase admission rates–strictly for financial reasons–sounds in medical malpractice for pre-suit notice purposes.

There, the decedent entered the ER at Wuesthoff Medical Center and was diagnosed with several problems requiring intensive care treatment. Plaintiffs asserted that the defendant (1) knew the hospital had no available ICU beds; (2) knew that six other patients in the ER were also awaiting on those ICU beds; and (3) that other hospitals in the immediate vicinity had beds available and could treat the decedent.

That said, instead of making the transfer, the ER physician retained the patient, admitting the decedent, and placing her in the hallway of the ER for several hours where she ultimately became unresponsive and died. Prior to initiating a presuit investigation, the plaintiff sued, alleging that the decedent’s admission was for the sole purpose of generating hospital and/or physician revenue.

The legislature has defined a claim for “medical negligence” as one aim “arising out of the rendering of or failure to render medical care or services.” The Florida Supreme Court has interpreted the statutory language to mean that for an action to sound medical malpractice, the act from which the claim arises must be directly related to medical care or services, thereby requiring the use of professional judgment or skill.

By focusing on acts from which the claim arose, courts have held on several occasions that a claim responsible for an intentional tort, fraud or RICO violation, may also present a medical malpractice claim.

Because the plaintiff here would need to show that the decision to admit the decedent rather than transfer her to another facility was improper—in other words, that the doctor improperly exercised medical judgment—the decision was inescapably linked to the alleged failure to provide appropriate medical care. Thus, compliance with presuit was necessary.