Patient Fall: Medical Malpractice or General Tort?

By Alex Stein

Courts coalesce around the view that patient fall injuries are actionable only as medical malpractice except when the care provider acts with intent or malice. This approach gives providers of medical care all the protections that benefit defendants in medical malpractice cases (compulsory suit-screening panel procedure, merit certificate / affidavit as a prerequisite for filing suit, stringent and short time-bars for filing suits that use both limitations and repose mechanisms, strict same-specialty requirement for expert witnesses, damage caps, and other protections).

The recent decision of the Louisiana Court of Appeals, White v. Glen Retirement System, — So.3d —- (La.App.2d Cir. 2016) 2016 WL 1664502, continues this trend. Continue reading

“Medical Malpractice” vs. General Negligence: The Case of Falling Accidents

By Alex Stein

As I wrote previously – see here, here, here, here, here, here, here, here, and here – whether a tort action sounds in “medical malpractice” as opposed to general negligence, or vice versa, can be crucial. Suits sounding in “medical malpractice” must satisfy special requirements that include shortened limitations periods, statutes of repose, and expert affidavits (or certificates of merit) at filing. In many states, those suits are also subject to special damage caps. Suits sounding in general negligence are free from these constraints. Filing and prosecuting those suits is consequently not as onerous and expensive as filing and prosecuting medical malpractice actions. For that reason, we witness many disputes over this pivotal categorization issue. Continue reading