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Banker Lopez Gassler Attorneys Defeat Attempt At A New Cause Of Action
April 29, 2011

Several years ago, the Florida Legislature enacted Section 395.1041 as an anti-patient-dumping statute for hospitals. It states that facilities with emergency departments must provide emergency services to any and all individuals upon the request, without regard to their insurance status or ability to pay. In order to enforce that requirement, it imposes not only administrative fines for violations, but also civil liability for the Chief Executive Officer of any hospital responsible for refusing to provide care.

A Tampa law firm recently started including that statutory claim against the CEO in lawsuits where they have otherwise sued an emergency room physician and the hospital for a purported negligent misdiagnosis of an emergency condition. They claim that, under the terms of the statute, the failure to treat the true condition due to a misdiagnosis has the same effect as the failure to treat the condition through patient dumping. The reasons they have been including this claim are apparent: (1) It is strict liability, (2) It includes a right to recover attorney’s fees, and (3) It is not technically a malpractice claim, so it is not subject to the shortened statute of limitations or ordinary pre-suit requirements.

The trial team of Richard Bowers and Richard Sebek successfully obtained a summary judgment on one such claim, and on appeal Mark Tinker had that judgment affirmed by the Second District.

If you have questions or have encountered a similar claim, please call Mr. Bowers, Mr. Sebek or Mr. Tinker at (877) BLG-4321.
Richard K. Bowers
(813) 222-1151
Email Richard M. Sebek
(813) 222-1121
Email Mark D. Tinker
(727) 825-3615
Email