Background
Joseph Everman underwent back surgery at Sarasota Memorial Hospital, performed by Dr. Ashvin Patel of Kennedy, White & Riggs Orthopedic Associates. Two days after surgery, Mr. Everman was transferred to the hospital’s Inpatient Rehabilitation Center. Later that afternoon, his abdominal incision became extremely painful and began draining and dehiscing (separating). The nursing staff contacted Kennedy White’s office to alert the on-call physicians—Dr. Patel and Dr. Ngoc-Lam Nguyen—to Mr. Everman’s declining condition.
Kennedy White used Callstar, Inc., a general-purpose answering service, to handle after-hours calls. Callstar’s operators had no medical training or licensing, only a high school diploma or GED requirement. When the nurse called with a detailed message describing the dehiscing, draining, and distended incision, the Callstar operator abbreviated the message to simply “COND” in the notification to Dr. Nguyen. Dr. Nguyen received the message but took no action. Mr. Everman’s condition worsened overnight; he developed septic shock and died two days later.
The Court’s Holding
The Florida Second District reversed the trial court’s dismissal of counts V and VI of the complaint against Kennedy White. The trial court had dismissed these counts as subject to the presuit notice requirements of Florida’s Medical Malpractice Act (§ 766.104), concluding they arose from the rendering of medical services. The appellate court disagreed, holding that these claims sounded in ordinary negligence, not medical malpractice, and therefore were not subject to the presuit requirements.
The court’s analysis turned on whether the allegedly negligent acts were “directly related to the improper application of medical services and the use of professional judgment or skill.” Here, Kennedy White’s claims involved administrative functions—the implementation, management, and operation of an answering service—performed entirely by nonmedical staff. The allegations were that the answering service failed to accurately convey messages to the on-call physician, failed to inform callers that messages would be paraphrased, and failed to offer callbacks. No medical analysis or professional judgment was involved; proving the claims would not require testimony from a medical expert on the standard of care. Accordingly, the allegations constituted ordinary negligence against a healthcare provider based on its business operations, not medical malpractice.
Key Takeaways
- Ordinary negligence claims against healthcare providers for administrative or business-related failures are not subject to Florida’s Medical Malpractice Act presuit requirements.
- The fact that a wrongful act occurs in a medical setting or is committed by a healthcare provider does not automatically transform it into a medical malpractice claim; the act must directly relate to the application of medical services requiring professional judgment or skill.
- Claims involving administrative employees’ decisions or failures—such as answering service management, failure to train on protocols, or administrative delays—can proceed as ordinary negligence claims if they do not require expert testimony on the standard of medical care.
- Healthcare providers bear responsibility for the ordinary business management of critical administrative functions, such as after-hours communication systems, even when outsourced to third parties.
Why It Matters
This decision clarifies an important distinction in Florida medical liability law. It prevents healthcare providers from shielding purely administrative negligence behind the protective barrier of the Medical Malpractice Act’s strict presuit requirements (which include mandatory affidavits of merit from qualified experts). While the Act appropriately protects medical judgment decisions from frivolous claims, healthcare providers remain subject to ordinary negligence liability for failures in business operations and administrative management. This ruling ensures that plaintiffs can pursue claims involving answering services, administrative delays, scheduling errors, and similar non-clinical failures without first obtaining expert certification that malpractice occurred.
For healthcare practices, the decision underscores the critical importance of ensuring that administrative systems—particularly those handling urgent patient communications—are designed and managed with the same care standard as clinical functions. Kennedy White’s use of a generic business answering service, the failure to customize protocols for a medical practice, and the resulting loss of critical clinical information illustrate how administrative negligence can have fatal consequences.