When someone is seriously ill and a nurse calls a doctor’s office after hours, the way that call is handled can matter enormously. But not every misstep that happens around medical care is treated the same way under Florida law.
Florida has a special set of rules — the Medical Malpractice Act — that people must follow before filing many claims against healthcare providers. Those rules include detailed pre-lawsuit steps. Whether a particular claim falls under those rules, or is instead treated as an ordinary negligence claim, can decide whether a case moves forward at all.
That distinction was at the center of Everman v. Kennedy, White & Riggs Orthopedic Associates, a decision from Florida’s Second District Court of Appeal.
Key Takeaway
The court held that claims about how a medical office set up and ran its after-hours answering service can be ordinary negligence, not medical malpractice — so the special pre-lawsuit steps of Florida’s Medical Malpractice Act did not apply.
The question is more specific:
- Did the alleged wrong involve medical judgment or skill?
- Or did it involve administrative and business decisions made by non-medical staff?
What happened?
According to the complaint, a patient had back surgery that went well, then was moved to an inpatient rehabilitation center. Later, his surgical incision became painful, began draining, and started separating.
A nurse called the orthopedic practice’s after-hours line, which routed to an outside answering service whose operators had no medical training. The nurse left a detailed message describing the worsening incision, but the operator relayed a message to the on-call doctor that boiled the condition down to a single abbreviation. The doctor took no action based on that message. The patient’s condition later deteriorated into septic shock, and he died.
What was the legal fight about?
The patient’s wife brought several claims. Two of them — an ordinary negligence claim and a related vicarious liability claim — focused on how the practice’s non-medical staff chose, set up, and managed the answering service, and on how the answering service handled the call.
The practice argued those claims arose out of the providing of medical care, which would require the plaintiff to complete the pre-lawsuit investigation and notice steps under section 766.104, Florida Statutes. The trial court agreed and dismissed both counts. The appeal tested whether that was correct.
Malpractice or ordinary negligence?
Under Florida law, a claim counts as medical malpractice only when the wrongful act is directly related to medical care or services that require professional judgment or skill — the kind of thing a medical expert would testify about. If proving the claim does not require that, it can be ordinary negligence.
What did the court decide?
The Second District reversed the dismissal of the two counts. It explained that the allegations centered on how a non-medical answering service was implemented, managed, and operated: it failed to accurately pass along messages, did not tell callers their full message would not be relayed, and did not ask callers whether they needed a callback.
The court concluded those allegations did not directly relate to medical care requiring professional judgment or skill, and that proving them would not require expert testimony on the professional standard of care. Because the claims sounded in ordinary negligence, the special pre-lawsuit requirements did not apply.
The court also noted a broader principle: simply being a healthcare provider does not turn every decision by a clerk or administrative worker into a medical judgment. The court reviewed this legal question without deference to the trial court’s conclusion.
Why does this matter to patients and families?
This decision illustrates that Florida courts look at the substance of what allegedly went wrong, not just where it happened or who was involved. An error can occur inside a medical practice yet still be treated as a business or administrative failure rather than a medical one.
Because the pre-lawsuit steps of the Medical Malpractice Act limit access to the courts, the court explained they are read narrowly. The line between administrative conduct and medical judgment can determine which set of rules applies.
What is the bottom line?
The court affirmed the judgment for the individual doctor and his professional association without discussion, but reversed the dismissal of the two counts against the orthopedic practice and sent them back for further proceedings. The reversal decides only that those claims may proceed as ordinary negligence claims — it does not decide who ultimately wins.
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