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Choosing the Right Cause of Action in Medical Practice Claims

As every good attorney knows, the facts of many cases can support multiple causes of action (or, said somewhat more colloquially, theories of relief). The choice of an appropriate cause of action is important. It determines, most vitally, exactly what elements need to be proved in order to prevail. Sometimes the evidence will be adequate to sustain multiple causes of action, but sometimes careful selection can mean the difference between winning and losing. In addition, the choice of what theory of relief to pursue can have jurisdictional implications. That is, it can decide whether your case proceeds in state or federal court, which matters a great deal in medical malpractice cases.

Recent Example in Florida

A good example of the jurisdictional importance of one’s theory of relief can be seen in the 2013 medical practice case of Rochette v. Orlando Health, a case out of the Middle District of Florida (a federal trial court). In that case, the plaintiff, Ms. Dawn Rochette, sued the hospital that had been charged with providing psychiatric care for her son. Not only did her son need psychiatric help, he had a disability: he was hearing impaired and could communicate only in American Sign Language (ASL). The hospital, however, failed to provide Ms. Rochette’s son with an adequate interpreter proficient in ASL. As a result, she claimed, he was unable to communicate properly with the doctors at the psychiatric facility. Because of this failure, she said, doctors were not able correctly to understand her son’s condition or provide proper care, and he later attempted to commit suicide (thankfully, he survived).

Ms. Rochette’s lawyers made the strategic decision to bring the case in federal court, and therefore chose federal causes of action: rather than file just a medical malpractice action, they claimed that the defendant hospital had violated the Americans with Disabilities Act and the Rehabilitation Act. By making this selection, Ms. Rochette would both: (1) avoid Florida’s pre-suit notice requirement for filing of medical malpractice actions; and (2) be allowed to invoke the jurisdiction of the federal court.

Hospital’s Defense

The hospital’s counsel, however, had other ideas. They filed a motion to dismiss, arguing that, even though Ms. Rochette had styled her grievances as claims under federal statutes, the case was, in actuality, just a garden-variety medical malpractice action. Thus, they said, the case needed to be in state court. And, moreover, Ms. Rochette had to comply with Florida’s pre-suit notice requirement. Since she hadn’t done so before bringing her case, the hospital argued, her claim should be dismissed.

The district court judge, however, disagreed with the hospital’s attempt to recharacterize Ms. Rochette’s claim. Judge Presnell wrote that the issue in the case was “that the doctors lacked the information needed to make a proper diagnosis, not that the doctors made an error of judgment,” and hence the claim could be more than ordinary malpractice.

Ms. Rochette’s lawyers made a smart strategic choice and were able to keep her case in federal court despite a motion to dismiss. The experienced medical malpractice attorneys at Gary Roberts & Associates, P.A. will do the same for your case.

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