Feifer v. Galen of Florida, Inc., 95-05176

• Decision Date: 08 November 1996
• Docket Number: No. 95-05176,95-05176
• Citation: 685 So.2d 882
• Parties: 21 Fla. L. Weekly D2406 Robert FEIFER and Helen Feifer, His Wife, Appellants, v. GALEN OF FLORIDA, INC., d/b/a St. Petersburg General Hospital, Appellee.
• Court: Florida District Court of Appeals

Page 882

685 So.2d 882

21 Fla. L. Weekly D2406

Robert FEIFER and Helen Feifer, His Wife, Appellants, v. GALEN OF FLORIDA, INC., d/b/a St. Petersburg General Hospital, Appellee.

No. 95-05176.

District Court of Appeal of Florida Second District.

Nov. 8, 1996.

Vitas Lukas, St. Petersburg, and Christie D. Arkovich, Tampa, for Appellants.

Kelly K. Griffin and Daneil M. McAuliffe of Gunn, Ogden & Sullivan, P.A., Tampa, for Appellee.

CAMPBELL, Acting Chief Judge.

Appellants, Robert and Helen Feifer, challenge the dismissal of their negligence action against appellee, Galen of Florida, Inc., d/b/a St. Petersburg General Hospital, because of their failure to comply with the notice and pre-suit requirements of chapter 766, Florida Statutes (1991) that pertain to claims arising out of the rendering of, or the failure to render, medical care and services.

We reverse, concluding, as urged by appellants, that they may seek recovery from appellee based upon their claims of ordinary or simple negligence rather than claims of medical malpractice or medical negligence.

The essential and pertinent parts of appellant's Third Amended Complaint-Negligence allege as follows:

2. On or about May 6, 1993, defendant was the owner and in possession of real property and a building located at 6500--38th Avenue North, St. Petersburg, Pinellas County, Florida 33710-1629, upon which defendant operated a business, a general service hospital, open to the general public.

3. At that time, plaintiffs entered upon said property as business invitees, having been directed to go there by Mr. FEIFER's physician.

4. Plaintiff ROBERT FEIFER is elderly, suffered physical illnesses or conditions related to his age, walked in slow, shuffling steps with his hand upon the rear of his hip; he openly complained of his feelings of weakness and his hands were obviously shaking as he and plaintiff HELEN FEIFER, his wife, waited and completed various forms, all in the plain view of defendant's admission area employee or employees, none of whom were employed in any professional capacity.

5. Plaintiffs were told by defendant's admission area employee or employees that they would have to walk on their own power to the various areas of the building, all at considerable distances from the reception area and each other, down long corridors with hard floors, no handrails, and no benches or chairs for sitting or resting, with neither a wheelchair nor an escort having been provided to assist Mr. FEIFER; plaintiffs had expected that a wheelchair would be provided but, when they were told otherwise, they set out to walk to the locations on their own power.

6. The conditions of the property's corridors, as described above, constituted an unsafe passageway and a dangerously negligent condition for customers such as plaintiff, and these conditions had existed for such a length of time before the incidents described herein that defendant knew or should have known of this dangerous condition.

7. After walking a great distance to the various areas of the premises to which they had been directed, plaintiffs walked back toward the reception area and Mr. FEIFER suddenly fell to the floor, suffering a broken hip and other painful and permanent and continuing bodily injuries, requiring emergency surgery, that caused Mr. FEIFER great pain and suffering, disability, disfigurement, mental anguish, loss of capacity to enjoy life, and great expenses for lengthy therapy, medical and nursing care or treatment and hospital and nursing home stays; all these injuries and losses to Mr. FEIFER are either permanent or are likely to reoccur or continue indefinitely into the future.

8. Defendant and defendant's employees owed plaintiff ROBERT FEIFER a duty to act with reasonable and prudent care so that no dangerous practice or condition would occur or exist that could injure Mr. FEIFER while upon the premises.

9. Defendant and defendant's employees breached their duty of reasonable care because they negligently failed to provide a safe passage way through said property by requiring or allowing an ailing, elderly, frail ROBERT FEIFER to walk within the corridors between the various sections or departments of the property without the benefit of common conveniences such as handrails, benches or chairs, and without the assistance of a wheelchair or an escort, despite his very obvious difficulty with walking and his weak appearance and condition; defendant and defendant's employees failed or neglected to take any such necessary, obvious and common precautions for a business of their type that repeatedly serves frail, elderly customers upon their premises.

10. Defendant and defendant's employees' failure to act with such reasonable and prudent care and knowingly or negligently allowing dangerous practices to occur and dangerous conditions to exist, were the direct and proximate causes of plaintiff ROBERT FEIFER's injuries, losses and damages.

11. Plaintiff was required to employ counsel to prosecute this action and has obligated himself to pay a reasonable attorney's fee.

We conclude that appellant...