Thought Leadership

A trial court determined that a presuit investigation was not required as the language in the complaint against a medical facility alleged general negligence, not medical negligence. The district court of appeal agreed, stating that the decision rested solely on the four corners of the complaint. However, if the general negligence morphed into one grounded in medical negligence, the question as to whether a presuit investigation was required before filing the complaint could be readdressed. 

Mr. Allerton was admitted to the mental health facility due to being a suicide risk. The complaint alleged that Mr. Allerton suffered from a mental illness and that during his admission, he was a suicide risk and should have been under constant visual observation to ensure he did not commit suicide. In contravention of those orders, Mr. Allerton was allowed unsupervised access to an unlocked bathroom, where he was eventually found hanging. 

Instead of participating in Florida’s Chapter 766 presuit investigation, the plaintiff filed a complaint alleging wrongful death due to the defendant’s negligence. The defendant filed a motion to dismiss the complaint, arguing the suit was actually a medical malpractice complaint because, in essence, the observation and evaluation at issue were medical diagnoses, treatment and care. The trial court determined that the language in the complaint alleged general negligence, not medical negligence. Thus, participation in the presuit investigation was not required. The Fifth District Court of Appeals agreed with the trial court, but stated that the decision rested solely on the four corners of the complaint and that the opinion should not be read to foreclose a later challenge should the case morph into one grounded in medical negligence.

This workaround is being seen more often in lawsuits. As the language in a complaint must be taken as true, and no additional information may be considered when reviewing the complaint during a motion to dismiss, the trial courts are beginning to allow complaints to continue under a general negligence claim and are not requiring plaintiffs to participate in Florida’s Chapter 766 medical malpractice presuit investigation.

Defense attorneys must be aware of this potential workaround when filing a motion to dismiss for failure to participate in the presuit investigation, and they should include a motion for a more definite statement. This would require a plaintiff to be more precise on the allegations of general negligence and could reopen the door to a motion to dismiss for failure to participate in the presuit investigation.
 

^{Case Law Alerts, 1st Quarter, April 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}