The plaintiff asserts that while he was a patient at the defendant hospital he was attacked and hit by another patient at the hospital who allegedly is known to possess violent and dangerous propensities. The patient claims that the hospital and its employees were negligent in permitting a known violent patient to be present around other patients.
A compliance conference was held regarding the case and an issue arose as to whether or not a medical malpractice panel hearing should be conducted. The issue was made formal during the conference and the plaintiff is now moving for an order to dispense with the medical malpractice panel hearing on the grounds that within the cause of action is for negligence rather than medical malpractice.
In opposition to the motion the defendants argue that the crux of the plaintiffs claim is that the defendant hospital failed to diagnose the assailant’s violent and dangerous propensities and failed to take the appropriate steps to treat the dangerous propensities so that the assault on the plaintiff could have been avoided. This information involves a claim of medical malpractice and not simple negligence and because of this should be the subject of a panel hearing. The defendant further argues that at a pre-calendar conference a medical malpractice preference was obtained by the plaintiff which indicates that a medical malpractice panel is warranted.
The contention that the medical malpractice preference was obtained by the plaintiff at the pre-calendar conference is found to be without merit since it is apparent that the issues being raised in this court have not been raised previously.
The issue before the court is whether or not an action that is brought forth by a patient of a hospital against the hospital because of the behavior of another patient in the hospital should be deemed a medical malpractice action so that it falls within the medical malpractice requirement.
In this case the plaintiff alleges a breach of duty by the hospital in the failure of the defendant to adequately restrain, supervise, and exercise care for his safety. The plaintiff alleges a cause of action for common law negligence and not for medical malpractice.
When considering the facts of this particular case the plaintiff is not suing the hospital based on the care provided to the plaintiff by the personnel of the hospital, but rather for what the hospital failed to do in treating the third person. When considered in this way it is seen to impose liability upon the hospital because the plaintiff was harmed by the alleged negligent care given to a non-party.
After careful consideration the court finds that this is a matter of general negligence and for that reason it should not be sent to a malpractice panel. The motion made by the plaintiff is granted and the case will be listed as a general negligence issue.
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