A hospital is facing a medical malpractice lawsuit. While not unusual on its face, the allegations in this lawsuit are extremely troubling. The plaintiff claims that a ransomware attack led to network outages that resulted in the death of her newborn baby.
Will this become the latest form of medical malpractice lawsuit? The answer is no, at least in Florida, where the law clearly defines medical malpractice as something that requires a medical decision to be made. In the case of a ransomware attack, no medical decision led to the child’s death. Instead, it was faulty security that led to the child’s death. Hence, this is not a medical malpractice lawsuit, but a simple negligence lawsuit that had consequences for a hospital and their patients.
Troubling, but not medical malpractice
Florida is an interesting place to be a lawyer for a number of reasons. One of those reasons is medical malpractice statutes that place major limits on medical malpractice lawsuits. That means that not only are medical malpractice lawsuits harder to file, but medical malpractice lawsuits are harder to win. In some cases, family members may be barred from filing wrongful death lawsuits but only if their loved one dies due to medical malpractice.
This has created an absurd legal battle in Florida that the State Supreme Court was required to resolve. In essence, doctors were arguing that lawsuits should be classified as medical malpractice lawsuits while patients were trying to argue that their lawsuits were simple negligence lawsuits. The Supreme Court had to step in and decide what was medical malpractice and what was simple negligence.
The standard they came up with was: Did the negligence involve a medical decision requiring medical expertise? For example, if you slip and fall in a hospital, that is not medical malpractice. If your doctor punches you in the face, it may not be great, but it’s still not medical malpractice. If your doctor removes the wrong organ, that is medical malpractice because he made a medical decision (a very bad one).
Lawsuits involving hospital deaths and ransomware
Let’s assume that the plaintiff has a perfect case. The plaintiff alleges that negligent cyber security led to network problems that led to a lapse in the standard of care that led to the death of her newborn. In that case, the hospital is responsible for the quality of their cyber security in addition to any company they hire to provide cyber security for them. While this may be a professional malpractice lawsuit, it wouldn’t be filed against a doctor’s medical malpractice insurance but the general liability policy of the hospital and the company that provided network security.
However, the case could come down to whether or not it’s considered a medical malpractice lawsuit or a simple negligence lawsuit. The rules differ in each state.
Talk to a Tampa, FL Medical Malpractice Lawyer
Palmer | Lopez takes cases involving medical malpractice and simple negligence, including negligent cyber security lawsuits. Call today to schedule a free consultation with our Tampa medical malpractice lawyers, and we can discuss the matter in greater detail.
Resource:
scmagazine.com/feature/incident-response/lawsuits-allege-death-morbidity-from-cyberattacks-is-this-the-next-phase-of-medical-malpractice
