Claims for professional negligence cannot be recast as “general negligence” in order to skirt the Affidavit of Merit and expert testimony requirements.

The plaintiff underwent an uneventful and routine cystoscopy at the defendant’s medical practice. Five minutes after, the plaintiff requested and was allowed to stand up and use the bathroom. While alone in the bathroom, he fell and sustained injuries. The plaintiff alleged failure to supervise, watch and instruct in the post-procedure time period. The plaintiff relied on the expert opinion of an architect who opined that it was a deviation from professional standards to not have a push button/pull string in the bathroom and that this created a dangerous condition that proximately caused the fall and injury. Despite casting this as general negligence, the court noted that “it is not the label of the action that is pivotal but the nature of the legal inquiry.” The court noted that the factual allegations underpinning the claims implicated professional standards of care. Specifically, the “determination of whether and how to continue monitoring plaintiff in the bathroom is a medical decision requiring a high degree of judgment.” This case reinforces that defense practitioners should be aggressive in arguing that all or most health care-related claims require testimony from a medical expert.

_{Case Law Alerts, 2^nd Quarter, April 2015}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}