Florida Court Explains Medical Malpractice Notification Requirement – Galencare, Inc. v. Mosely

A person seeking to sue a doctor or hospital for medical malpractice in Florida is generally required notify the defendants before filing suit. But what about suits against other health professionals like pharmacists? Florida’s Second District Court of Appeals recently took on this issue in Galencare, Inc. v. Mosely.

The plaintiff in this case is the estate of Mable Moseley, which filed an action alleging that Ms. Mosely died due to an overdose of narcotics administered while she was in the care of Brandon Regional Hospital near Tampa. The estate brought a negligence claim against seven pharmacists (the Pharmacists) working at the hospital and a third-party spoliation claim against the Hospital, alleging that it failed to maintain the proper records that could support a claim by the Estate against the other defendants who are not health care providers.

The Pharmacists filed a motion to dismiss the claims against them, arguing that the Estate failed to provide the notice required before filing a medical malpractice suit in Florida. Specifically, section 766.106 Florida Statutes (2008) states that “[a]fter completion of pre-suit investigation pursuant to s. 766.203(2) and prior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant . . . of intent to initiate litigation for medical negligence.” A trial court denied the motion, finding that the claims against the Pharmacists are not medical malpractice claims and, therefore, not subject to the notice requirement.

On further review, the Second District agreed with the trial court, finding that the Estate was not required to notify claims the Pharmacists before bringing its claims against them. These claims, according to the court, are not medical malpractice claims. Under Florida law, a medical malpractice claim is one in which the plaintiff seeks damages for the death or personal injury of a person resulting from the negligence of a health care provider. Section 766.202(4) defines “healthcare provider ” as:

any hospital, ambulatory surgical center, or mobile surgical facility …; a birth center…; a clinical lab…; a health maintenance organization…; a blood bank; a plasma center; an industrial clinic; a renal dialysis facility; or a professional association partnership, corporation, joint venture, or other association for professional activity by health care providers.

This list doesn’t include pharmacists. “We must conclude that the legislature specifically intended to exclude pharmacists…from the definition of health care provider,” the court ruled. As a result, the Pharmacists were not subject to the pre-suit notice requirements.

As this case makes clear, both medical malpractice claims and other actions against health professionals raise a number of complicated legal issues that must be considered before bringing suit. An experienced personal injury attorney is vital to pursuing a claim after a medical error causes injury. If you or a loved one was injured by poor medical care, contact the South Florida medical malpractice attorneys at Anidjar & Levine. We represent clients throughout the area, including in Coral Springs, Hollywood and Pompano Beach, and offer a free initial consultation from our Fort Lauderdale offices. Call the firm today at 800-747-3733.