Tenet St. Mary's Inc. v. Serratore, Case No. 4D03-4372 (Fla. App. 4th Dist. 4/7/2004)
| Decision Date | 07 April 2004 |
| Docket Number | Case No. 4D03-4372. |
| Parties | TENET ST. MARY'S INC., d/b/a ST. MARY'S MEDICAL CENTER, Petitioner, v. AGNES SERRATORE, Respondent. |
| Court | Florida District Court of Appeals |
Marc T. Millian and Ron D. Herman of Michaud, Buschmann, Mittelmark, Millian, Blitz, Warren & Coel, P.A., Boca Raton, for petitioner.
No brief filed for respondent.
Tenet St. Mary's, Inc. d/b/a St. Mary's Medical Center (St. Mary's) petitions for writ of certiorari seeking review of an order denying its motion to dismiss the complaint of Agnes Serratore, for failure to follow the presuit requirements of section 766.106, Florida Statutes (2001).
On September 27, 2002, Serratore was injured after receiving dialysis treatment at St. Mary's. According to Serratore's complaint, which is labeled "simple negligence," Serratore was sitting in a reclining chair after completing dialysis treatment and a St. Mary's employee attempted to assist her by returning the chair to its upright position so that Serratore could stand up. The employee attempted to kick the footrest of the chair to return the chair to the upright position, but instead "negligently" kicked Serratore's right foot. The resulting injury did not heal and eventually required a below-the-knee amputation on December 3, 2002.
St. Mary's filed a motion to dismiss Serratore's complaint. As grounds for dismissal, St. Mary's asserts that Serratore did not comply with the chapter 766 presuit screening requirements for medical malpractice claims. St. Mary's argues that although Serratore was alleging simple negligence, she was required to file her complaint as a medical malpractice case because the injury occurred while she was under the care of a hospital employee after receiving dialysis treatment. We disagree and deny the petition.
The allegations of the complaint do not seek to state a cause of action for medical negligence under section 766.102, Florida Statutes (2001); therefore, the trial court was correct in denying the motion to dismiss. The test for determining whether the defendant is entitled to the benefit of the presuit screening requirements of section 766.106 is whether the defendant is liable under the medical negligence standard of care set forth in section 766.102(1).1
See Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So. 2d 974, 980 (Fla. 2002); Lake Shore Hosp., Inc. v. Clarke, 768 So. 2d 1251, 1252 (Fla. 1st DCA 2000); Feifer v. Galen of Fla., Inc., 685 So. 2d 882, 885 (Fla. 2d DCA 1996).
The gravamen of Serratore's complaint for negligence does not arise out of the receiving of medical care nor does it require that Serratore prove that the actions of the St. Mary's employee deviated from an accepted standard of medical care, which is required under section 766.102(1). There is clearly no professional standard of care involved in attempting to kick a footrest of the reclining chair to return it to its upright position. The mere fact that this event occurred immediately after Serratore...
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