Third District Court of Appeal
State of Florida
Opinion filed October 13, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-1528
Lower Tribunal No. 17-19229
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Edwin Torres,
Appellant,
vs.
Kendall Healthcare Group, Ltd., etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Daryl E.
Trawick, Judge.
McCarthy & Yersel, PLLC, and Emre Yersel and Martin G. McCarthy
and Laura Cordell, for appellant.
Lewis Brisbois Bisgaard & Smith LLP., and Cindy J. Mishcon and Kevin
M. Vannatta (Fort Lauderdale), for appellee.
Before SCALES, GORDO and LOBREE, JJ.
LOBREE, J.
Edwin Torres challenges the trial court’s dismissal with prejudice of his
negligence action against Kendall Healthcare Group, Ltd. The operative
complaint alleged that Mr. Torres was admitted as a patient to Kendall
Healthcare’s facility, where he underwent diagnostic imaging. After the
imaging was complete, he attempted to transfer from the exam table to his
wheelchair but fell and injured himself when the wheelchair rolled away
because his assigned attendant failed to properly secure its brakes. The trial
court dismissed the action finding it sounded in medical malpractice rather
than ordinary negligence, and Mr. Torres failed to comply with the statute of
limitations in section 95.11(4)(b), Florida Statutes, as well as the mandatory
pre-suit requirements in chapter 766, Florida Statutes.
In order to determine whether Mr. Torres’ failure to comply with the
statute of limitations for medical malpractice claims and the pre-suit
requirements in chapter 766 is fatal to his claim, a determination needs to be
made as to whether this suit is for medical malpractice or ordinary, which is
an intensively fact based analysis. See Nat’l Deaf Acad., LLC v. Townes,
242 So. 3d 303, 312 n.6 (Fla. 2018) (“Whether the kinds of claims presented
in [“gray-area”] cases sound in ordinary or medical negligence depends on
both the specific circumstances under which the injury occurred and the
allegations in the pleadings.”) (emphasis added). At this stage of the
proceedings, however, our inquiry is limited to the factual allegations within
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the four corners of Mr. Torres’ complaint, which we must accept as true. See
Holmes Reg’l Med. Ctr., Inc. v. Dumigan, 151 So. 3d 1282, 1286 (Fla. 5th
DCA 2014). Because Mr. Torres alleged sufficient facts to plead his action
as one sounding in ordinary negligence, a dismissal with prejudice was not
warranted at this juncture. See McManus v. Gamez, 276 So. 3d 1005, 1009-
10 (Fla. 2d DCA 2019). Accordingly, we reverse and remand for further
proceedings consistent with this opinion.
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