Everman v. Kennedy, White & Riggs Orthopedic Associates, LLP
The Second DCA held that ordinary-negligence and vicarious-liability claims arising from a medical practice's non-clinical business operations — here, a lay answering service that garbled a nurse's urgent message — do not arise from the rendering of medical care and therefore are not subject to the presuit investigation and notice requirements of section 766.104. It reversed the dismissal of counts V and VI (while affirming, without discussion, the final judgment for the physician defendants).
Key facts
- Joseph Everman's post-surgical abdominal incision began dehiscing and draining at Sarasota Memorial's rehab center; his nurse called the on-call orthopedic practice (Kennedy White) using its after-hours line.
- Kennedy White's answering service, Callstar, was staffed by operators with no medical training who followed a script authored by non-medical staff; the operator condensed the nurse's detailed message into the single word 'COND.'
- +2 more key facts with a free trial
Holdings
- The presuit requirements of Florida's Medical Malpractice Act (§ 766.104) apply only where the wrongful act is directly related to the improper application of medical services requiring…
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Why it matters
This decision is a useful tool for plaintiffs seeking to avoid the Medical Malpractice Act's presuit gauntlet (and its 90-day tolling, expert corroboration, and heightened dismissal risk) by framing claims around a… — full analysis with a trial
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