In Florida, ruling says restraint of deaf resident was not medical malpractice

By Charmaine Little | May 16, 2018

TALLAHASSEE, Fla. (Legal Newsline) – The question of whether an academy for the deaf acted in medical malpractice or negligence was answered in a Florida Supreme Court April 26 opinion.

The now-closed National Deaf Academy LLC filed an appeal with the Supreme Court after the 5th District Court of Appeal ruled in favor of Denise Townes and others, but the high court confirmed the ruling and stated the National Deaf Academy acted in negligence, not medical malpractice, as one of its employees tried to “physically” control a resident. The resident was ultimately injured in the incident.

The appellate court stated that considering the workers’ action was not related to any type of treatment to help cover the residents’ daily needs and also “did not require medical skill or judgment,” it was not a medical malpractice act. It reversed the trial court’s motion for summary judgment and noted that it did not align with the medical malpractice lawsuit requirements.

The National Deaf Academy challenged the appeals court decision and said the 5th District decision disagrees with the 1st District Court of Appeals in a related case (Shands Teaching Hospital & Clinics Inc. v. Estate of Lawson). In that case, a psychiatric hospital was found to be in malpractice following a resident’s death after a worker left her employee badge and keys unattended, according to the opinion.

While the Supreme Court concurred that the two decisions do not support one another when it comes to the requirements of a malpractice suit, it agreed with the 5th District’s decision and disagreed with the 1st District’s ruling.

The Supreme Court pointed out that it opposes the National Deaf Academy’s challenge that Townes’ claims are of sound medical malpractice “because the decision to include the use of TACT holds ... was made by a medical doctor and medical expert testimony on the prevailing professional standard of care.”

The Supreme Court stated it disagreed with the academy’s argument and pointed out Therapeutic Aggression Control Techniques (TACT) are utilized to protect the resident.

Still, the Supreme Court argued it is actually negligence, not medical malpractice, as Townes’ lawsuit is not founded on a notion that is “directly related to medical care or services,” that require one to use their own professional judgment or skill.

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