Where the nub of the plaintiff's claim is a theory of negligence apart from medical malpractice, there is no obligation to comply with Chapter 766 notice and screening requirements. See Feifer v. Galen of Florida, Inc., 685 So.2d 882 (Fla. 2d DCA 1996); Hicks v. Baptist Hosp., Inc., 676 So.2d 1019 (Fla. 1st DCA 1996); Palm Springs General Hosp., Inc. v. Perez, 661 So.2d 1222 (Fla. 3d DCA 1995); Broadway, 638 So.2d at 177. In Perez, a patient sued a hospital for placing her in a room with another patient who committed a homosexual attack on her.
As outlined above, the undisputed facts on which the summary judgment was entered consist of little more than the allegations in appellant's complaint, with the additional information from appellant's deposition that the person who assaulted her was another psychiatric patient, and that at the time of the assault she was in her room on the closed psychiatric ward of the Pavilion. This case bears a strong factual similarity to Palm Springs General Hospital, Inc. v. Perez, 661 So.2d 1222 (Fla. 3d DCA 1995), in which a hospital patient was assaulted by another patient. Denying the hospital's petition for certiorari after the circuit court denied its motion to dismiss for failure to comply with medical malpractice screening requirements, the district court determined "that the action below sounds in common law negligence, not medical malpractice, as it is, in effect, a premises liability case arising out of a criminal attack by a third party."
The definitions in section 766.202 apply to Florida Statute sections 766.201 through 766.212. F.S. § 766.202. Thus, for example, the pre-suit screening requirements do not apply to claims for, inter alia, premises liability, see Palm Springs Gen. Hosp., Inc. v. Perez, 661 So. 2d 1222, 1223 (Fla. 3rd DCA 1995) (plaintiff sued hospital for placing plaintiff in room with another patient who committed homosexual attack on plaintiff); Hicks v. Baptist Hosp., Inc., 676 So. 2d 1019 (Fla. 1st DCA 1996), false imprisonment, see Foshee, 675 So. 2d at 960; Robbins v. Orlando, H.M.A., Inc., 683 So. 2d 664, (Fla. 5th DCA 1996) (plaintiff sued for, inter alia, false imprisonment, breach of contract, fraud, IIED and conspiracy where she was admitted to facility and not permitted to leave), simple negligence, see Mobley, 915 So. 2d at 218-19 (plaintiff claimed she was "negligently banged in the face with a piece of equipment;" such claim was independent of standard of care imposed on health care provider); Tenet St. Mary's Inc. v. Serratore, 869 So. 2d 729, (Fla. 4th DCA 2004). Courts have repeatedly indicated that the application of chapter 766 is not limited to only those actions defined as "negligence."
See, e.g., Andrea N. v. Laurelwood Convalescent Hosp., 13 Cal.App.4th 1492, 18 Cal.App.4th 1698, 16 Cal. Rptr.2d 894, 903 (Cal.Ct.App. 1993), review granted, 19 Cal.Rptr.2d 519, 851 P.2d 801, 802 (Cal. 1993), and review dismissed, 27 Cal.Rptr.2d 1, 865 P.2d 632 (Cal. 1994); Lauria v. West Rock Health, Inc., No. CV03082278, 2004 WL 201939, at *2 (Conn.Super.Ct. Jan.13, 2004); Delaney v. Newington Children's Hosp., No. CV-93-0524063, 1994 WL 228322, at *2-3 (Conn.Super.Ct. May 9, 1994); Robinson v. West Fla. Reg'l Med. Ctr., 675 So.2d 226, 228 (Fla.Dist.Ct.App. 1996); Hicks v. Baptist Hosp., Inc., 676 So.2d 1019, 1019 (Fla. Dist.Ct.App. 1996); Palm Springs Gen. Hosp., Inc. v. Perez, 661 So.2d 1222, 1223 (Fla.Dist.Ct.App. 1995); Klingman v. Green, 616 So.2d 762, 763-64 (La.Ct.App. 1993); Reaux v. Our Lady of Lourdes Hosp., 492 So.2d 233, 234-35 (La.Ct.App. 1986); Afamefune v. Suburban Hosp., Inc., 385 Md. 677, 870 A.2d 592, 602-03 (2005); Borrillo v. Beekman Downtown Hosp., 146 A.D.2d 734, 537 N.Y.S.2d 219, 220-21 (N.Y.App.Div. 1989); Sumblin v. Craven County Hosp. Corp., 86 N.C.App. 358, 357 S.E.2d 376, 377-79 (1987); Burns v. Forsyth County Hosp. Auth., Inc., 81 N.C.App. 556, 344 S.E.2d 839, 846 (1986). But see Dorris v. Detroit Osteopathic Hosp. Corp., 460 Mich. 26, 594 N.W.2d 455, 466-67 (1999); Smith v. Four Corners Mental Health Ctr., Inc., 70 P.3d 904, 914 (Utah 2003).
Id. at 891. Additionally, in Palm Springs General Hospital, Inc. v. Perez, 661 So.2d 1222, 1223 (Fla. 3d DCA 1995), the Third District denied a hospital's petition for writ of certiorari after finding that negligently placing the plaintiff, a patient of the hospital, in a room with another patient, who committed a homosexual attack on the plaintiff was a cause of action for common law negligence, not medical malpractice. Most analogous to this case is Robinson.
Consequently, as no professional skill or judgment was performed by Mt. Sinai, the collection of the urine sample was not a medical service as defined by the statute. See Palm Springs Gen. Hosp., Inc., v. Perez, 661 So.2d 1222 (Fla. 3d DCA 1995),rev. denied, 670 So.2d 939 (Fla. 1996)(statutorily mandated pre-suit administrative procedures not necessary to sue hospital for negligence or intentional torts when wrongful conduct is not medical malpractice). Therefore, the liability of the hospital stems from a breach of the duty of ordinary care in not following the protocol required by Dade County.
Therefore, no purpose is served by conducting pre-suit investigations and screening procedures. Not every wrongful act by a medical professional constitutes malpractice requiring application of section 766.106, Palm Springs Gen. Hosp., Inc. v. Perez, 661 So.2d 1222 (Fla. 3d DCA 1995), rev. denied, 670 So.2d 939 (Fla. Feb. 23, 1996); J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945 (Fla. 1994); Liles v. P.I.A. Medfield, Inc., 681 So.2d 711 (Fla. 2d DCA 1995), or other statutes pertaining to medical malpractice, Stackhouse v. Emerson, 611 So.2d 1365 (Fla. 5th DCA 1993); Jackson v. Biscayne Medical Ctr., Inc., 347 So.2d 721 (Fla. 3d DCA 1977); St. Vincent's Medical Ctr. v. Oakley, 371 So.2d 590 (Fla. 1st DCA 1979). In J.B., the Florida Supreme Court answered questions certified to it by the Eleventh Circuit Court of Appeals, to which the plaintiff had appealed the dismissal of his complaint.
Plaintiff's claim for premises liability is not subject to these procedures. Robinson v. West Fla. Regional Medical Ctr., 675 So.2d 226 (Fla. 1st DCA 1996); Palm Springs Gen. Hosp. Inc. v. Perez, 661 So.2d 1222 (Fla. 3d DCA 1995), review denied, 670 So.2d 939 (Fla. 1996). Accordingly, the case is reversed and remanded for further proceedings consistent with this opinion.