The question of whether a slip and fall that occurs within a hospital constitutes medical malpractice, rather than ordinary negligence, has been a much debated topic and one I have written about in depth before (See Professional vs. Ordinary Negligence in the Health Care Setting: Is It Time for a Bright Line Test? Medical Malpractice Law & Strategy. July, 2011). The distinction is important because, in Pennsylvania and other states, there are a number of procedural hurdles—which do not apply to an ordinary negligence case—a plaintiff must first tackle in order to successfully file and pursue a medical malpractice case. Whether a case is classified as medical malpractice or general negligence can have a substantial impact on the cost of litigation and strategy needed.

There has been some inconsistency in determinations among Pennsylvania courts, as well as courts in other states, on this issue. This makes it very difficult to determine or predict whether a hospital fall case will be deemed a medical malpractice and, therefore, subject to the medical malpractice procedural requirements.

In Texas, which has tough medical malpractice requirements similar to those in Pennsylvania, doctors and hospitals have historically tried to use those requirements to have premises liability—otherwise referred to as “slip and fall”—cases which occurred in hospitals dismissed on procedural grounds. Recently, however, the Texas Supreme Court effectively put a stop to this.…

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