National Deaf Academy, LLC v. Townes: Medical Malpractice Claims Made Murkier

<em>National Deaf Academy, LLC v. Townes:</em>  Medical Malpractice Claims Made Murkier

Florida courts have grappled with the issue of whether or not claims for quasi-medical injuries occurring in a hospital, medical clinic, or physician’s office, automatically fall under the regulations of Florida’s medical malpractice statutes, or should be brought as ordinary negligence claims. Likewise, plaintiffs claiming damages resulting from these quasi-medical injuries were torn between filing claims under the purview of medical malpractice statutes, or simply filing claims asserting ordinary negligence. Does the classification make any difference? The short answer is, yes.

As the Florida Supreme Court noted in National Deaf Academy, LLC v. Townes, “whether a claim arises from ordinary negligence or medical malpractice has significant implications.”[1] Not only is the statute of limitations for filing a claim for medical malpractice significantly more restrictive than for ordinary negligence (two versus four years), claims for medical malpractice require plaintiffs to abide by onerous pre-filing requirements.

Medical Malpractice Pre-filing Notice Requirements

According to Florida Statutes, section 766.106(2)(a):

After completion of presuit investigation…and prior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant by certified mail . . . of intent to initiate litigation for medical negligence. Notice to each prospective defendant must include all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the 2-year period prior to the alleged act of negligence who treated or evaluated the claimant, copies of all of the medical records relied upon by the expert in signing the affidavit, and the executed authorization form provided in s[ection] 766.1065.

 As is apparent, plaintiffs burden when filing claims sounding in medical malpractice is far greater than that of filing claims for ordinary negligence. Because of this, the facts are vital in determining the trajectory of a case involving quasi-medical incidents.

The Shands Case

In Shands Teaching Hospital & Clinics, Inc. v. Estate of Lawson, the First District Court of Appeals held a claim arising out of a psychiatric hospital employee leaving her keys and badge unattended, which resulted in a patient’s escape and consequential death, sounded in medical malpractice because the incident arose from the hospital’s breach of its duty to confine said patient.[2] This decision was significant because, despite the fact deceased’s injury was not a result of rendering a diagnosis, care or treatment, the court  decided the case sounded in medical malpractice. As a result, plaintiffs were forced to comply with the stringent requirements set forth in Section 766.106(2)(a), for claims involving mostly all injuries occurring in a medical setting. This was a tall order for plaintiffs to undertake, until Townes.

The Townes Case


In Townes, a young girl was sent to The National Deaf Academy (“NDA”) for assistance with behavioral issues. During an outburst, several members of the NDA, including two registered nurses, employed a method of physical restraint called a Therapeutic Aggression Control Techniques (“TACT”) hold, which resulted in a severe knee injury to the child. The child was later forced to undergo a surgical amputation above the knee due to the injury. The child’s aunt, Denise Townes, filed a claim against NDA for ordinary negligence.

NDA moved for summary judgment, arguing the case was sound in medical malpractice and, thus, the statutory presuit requirements had not been satisfied. The trial court granted summary judgment in favor of NDA and dismissed the action.

Ms. Townes appealed, and the Fifth District Court held the claims fell under ordinary negligence standards and reversed the trial court’s decision. The reasoning was based on nurse deposition testimony explaining “the purpose of a TACT protective hold [wa]s to ensure the safety of the residents, and that non-medical personnel, such as sign language interpreters, also underwent TACT training.”[3] The court also concluded “[t]here was additional record evidence that the decision of whether to employ a TACT protective hold [wa]s to be made by the most senior person trained in TACT; however, that person [did] not necessarily have to be a medical professional.” [4] Thereafter, NDA’s petition for further review was granted.

Florida Supreme Court Ruling

Although the decision in Shands was somewhat harsh for plaintiffs, it ended up being a blessing in disguise. The Court’s sole reason for examining the issue, regarding classifying claims as medical or ordinary negligence, was the direct conflict between the First and Fifth Districts’ rulings in Townes and Shands. The Court affirmed and adopted the Fifth District’s ruling and adopted their reasoning, and disapproved Shands. “[F]or a claim to be sound in medical malpractice, the act from which the claim arises must be directly related to medical care or services, which require[s] the use of professional judgement or skill.”[5]

The Takeaway

It is abundantly clear from both Shands and Townes that plaintiffs and their attorneys must carefully assess the facts surrounding injuries occurring in medical and clinical settings when determining their litigation route. Although the ruling in Townes appears to further clarify the criteria for classifying claims sound in medical malpractice, there still exists a gray area with regard to the proper route to preserve claims arising from incidents involving medical and treatment personnel. The Florida Supreme Court’s ruling, in an attempt to clarify the medical malpractice waters, has seemingly made them murkier.


[1] 242 So. 3d 303 (Fla. 2018)

[2] 175 So. 3d 327 (Fla. Dist. Ct. App. 2015), disapproved of by Nat’l Deaf Acad., LLC v. Townes, 242 So. 3d 303 (Fla. 2018).

[3] Townes, supra.

[4] Id.


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