Family Sues After Special Needs Child Chokes On Latex Glove
A grieving family has filed a wrongful death lawsuit against a Florida care facility after the child was left alone for what the plaintiffs call “an extended period of time.” The child had a known propensity for placing things in his mouth and the care facility allegedly knew about this. However, the child was left alone and there was a latex glove within reach. The boy took the latex glove, placed it in his mouth, and then choked on it.
The family believes that because the facility had fair warning and the child needed to be supervised at all times, they should be held singularly liable for the boy’s death. This, in fact, is a strong argument for the plaintiffs to make.
Medical malpractice or general negligence?
Florida rules of law can be strange and give rise to absurd scenarios. So, there will end up being some question as to whether or not the facility was in fact a health care facility or if they provided general services to patients with special needs.
In order to be considered a medical facility, your business has to operate within the specific confines of the legal definition of that term. If the care facility is considered a health care facility, then the lawsuit would be filed under a theory of medical malpractice as opposed to general negligence. That would make the facility much more difficult to sue.
Medical malpractice lawsuits operate under a standard that is slightly different from general negligence lawsuits. When it comes to general negligence, it is assumed that the average person would understand the situation well enough to render a judgment. In the case of medical malpractice and other professional negligence lawsuits, the plaintiff must establish that the quality of care fell below the prevailing standard of care for the industry.
Medical malpractice lawsuits require plaintiffs to hire expert witnesses that provide written depositions as to the merit of the claim. Once the plaintiff establishes the merit of their claim, the case can proceed to litigation.
In a case like the one mentioned above, it can be confusing. The plaintiffs certainly do not want this case to move forward as a medical malpractice lawsuit. Absurdly, the defendants would prefer this. As part of the lawsuit, the plaintiffs have alleged that the care facility does not qualify as a healthcare facility or a medical services company. The defendants can counter by saying that they do provide medical services and that, while they dropped the ball on the patient’s care, the appropriate way to file suit would be under the legal theory of medical malpractice and not general negligence. Further, preventing the boy from choking was a part of his medical care.
So, the stakes are high for both parties and whether or not the case falls under medical malpractice or general negligence can have a huge impact on how it plays out.
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