IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

ZADYE THOMAS,

Appellant,

v. Case No. 5D23-22

LT Case No. 16-2017-CA-007534

ST. VINCENT'S MEDICAL CENTER, INC., 

A FLORIDA NOT FOR PROFIT CORPORATION,

Appellee.

________________________________/

Opinion filed August 11, 2023

Appeal from the Circuit Court 

for Duval County,

Marianne L. Aho, Judge.

Linnes Finney, Jr. and Louis Manoly 

Thermilus, of Simmons, Finney & 

Winfield, LLC, Port St. Lucie, for 

Appellant.

James Brent Allen and Ashley 

Martell Fromm, of Hall Booth Smith, 

P.C., Jacksonville, for Appellee.
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EDWARDS, C.J.,

Zadye Thomas appeals the order granting Appellee’s, St. Vincent’s 

Medical Center, Inc., motion to dismiss with prejudice her amended 

complaint for premises negligence. Appellant’s amended complaint alleges 

that she was a business invitee of Appellee’s and fell on a slippery, wet floor 

while walking to a restroom in Appellee’s place of business; in other words, 

a typical slip and fall complaint. There were absolutely no allegations in the 

amended complaint stating that Appellant was a patient receiving medical 

care or treatment. Nevertheless, the trial court agreed with Appellee that this 

was really a claim for medical negligence and dismissed it because Appellant 

had not complied with the pre-suit notice requirements set forth in section 

766.101, Florida Statutes. We reverse and remand for further proceedings 

because the trial court erred when it failed, at this stage of the proceedings, 

to treat this as a simple negligence case.

In her amended complaint, Appellant alleges that while she was at 

Appellee’s premises walking towards the restroom she slipped and fell. The 

only cause alleged for the slip and fall was that the floor was wet and slippery. 

The only duties allegedly breached were Appellee’s duties to properly 

maintain the floor in a safe condition or to warn of the dangerous condition, 

i.e., the wet, slippery floor. Appellant did not allege that Appellee had 
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breached any prevailing professional standard of care owed to her by a 

health care provider, which allegation would be required to plead a medical 

malpractice claim. See § 766.102(1), Fla. Stat. Appellant included 

customary, garden-variety slip and fall allegations: that the condition had 

existed long enough for Appellee to have been on notice, and that she was 

injured and suffered damages as a result of Appellee’s negligence. 

Appellee moved to dismiss, referring to matters outside the four 

corners of the amended complaint, namely that Appellant was a patient at 

Appellee’s facility and that the reason she fell was that she became weak 

while walking to the restroom with assistance from a nurse. The trial court 

obviously relied upon these additional matters in reaching its decision to 

dismiss the amended complaint.

“Appellate courts review an order granting a motion to dismiss de 

novo.” Dziegielewski v. Scalero, 352 So. 3d 931, 932 (Fla. 5th DCA 2022). 

When considering a motion to dismiss, courts must confine their review to 

the four corners of the complaint. Id. at 933; K.C. Quality Care, LLC v. Direct 

Ins. Co., 357 So. 3d 181, 181 (Fla. 5th DCA 2022). “The allegations set forth 

in the complaint must be assumed to be true and all reasonable inferences 

arising therefrom are taken in favor of the plaintiff.” Dziegielewski, 352 So. 

3d at 933; see also K.C. Quality Care, 357 So. 3d at 181. 
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“In determining whether an action sounds in medical malpractice, 

courts must—on a case-by-case basis—examine the allegations in the 

complaint and accept them as true.” Holmes Reg’l Med. Ctr., Inc. v. 

Dumigan, 151 So. 3d 1282, 1285 (Fla. 5th DCA 2014). “[B]ecause the presuit requirements of the FMMA limit the constitutional right of access to 

courts, they must be narrowly construed.” Id. This Court has explained that 

“the mere fact that a wrongful act occurs in a medical setting does not 

automatically transform the contested action into one that sounds in medical 

malpractice; the wrongful act must be ‘directly related to the improper 

application of medical services and the use of professional judgment or skill.’” 

Id. at 1286. The Florida Supreme Court has confirmed that this is the 

applicable standard. Nat’l Deaf Acad., LLC v. Townes, 242 So. 3d 303, 305 

(Fla. 2018) (“In accordance with the Legislature's definition of medical 

malpractice and this Court's relevant case law, we hold that for a claim to 

sound in medical malpractice, the act from which the claim arises must be 

directly related to medical care or services, which require the use of 

professional judgment or skill.”). 

We understand that it is not always easy to distinguish between a claim 

for medical malpractice and a simple premises liability claim, but the cases 

do provide helpful guidance. For example, in Vance v. Okaloosa-Walton 
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Urology, P.A., 228 So. 3d 1199, 1200 (Fla. 1st DCA 2017), the plaintiff fell 

while descending from the examination table following her examination by 

the physician. It seems that the doctor had provided a step stool for Ms. 

Vance to get onto the table, moved the stool during the procedure, told her 

to get off the table, and left the room without putting the step stool back in 

place. Id. Ms. Vance alleged in her complaint that she fell to the floor 

because the stool had been moved. Id. The trial court dismissed Ms. 

Vance’s complaint with prejudice for failing to comply with the pre-suit 

medical malpractice requirements. 

The First District reversed in Vance. “We have described ordinary 

negligence as something jurors can resolve ‘by referring to common 

experience,’ whereas medical negligence requires ‘the help of experts to 

establish what is acceptable, appropriate, and prudent’ because jurors 

cannot determine through ‘common experience’ whether medical standards 

of care were breached.” Id. at 1200–01 (quoting Shands Teaching Hosp. & 

Clinics, Inc. v. Estate of Lawson, 175 So. 3d 327, 332–33 (Fla. 1st DCA 

2015)). Applying that test to Ms. Vance’s claim, the First District concluded 

that, “[j]urors can use their common experiences to evaluate the act of 

placing and removing a step stool used by someone to get on and off a table, 
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just as they could evaluate the act of pulling a chair out from under someone 

about to sit down.” Id. at 1201.

In another fall case, South Miami Hospital, Inc. v. Perez, 38 So. 3d 809 

(Fla. 3d DCA 2010), the Third District quashed the trial court’s order denying 

the hospital’s motion to dismiss. The complaint at issue in that case alleged 

that Mr. Perez was injured and later died while a patient in the hospital’s 

critical care unit, allegedly falling from his bed while unrestrained and 

unattended by the hospital’s employees who failed to monitor or supervise 

Mr. Perez. Id. at 810–11. The Third District rejected the claim that Mr. Perez 

was merely a business invitee and held that the complaint should have been 

dismissed for failure to comply with the medical malpractice pre-suit 

requirements. It determined the allegations of that complaint could only be 

proved through evidence of whether the alleged action of a health care 

provider, i.e., a nurse failing to properly monitor Perez, violated the prevailing 

standard of care. Id. at 812. 

We find the instant amended complaint fits into the category of a simple 

negligence case that can be resolved without reference to any medical 

standards of care. Accordingly, it should not have been dismissed as a noncompliant medical malpractice case. However, should the case change over 

time, morphing into a medical malpractice case, Appellee would not be 
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foreclosed from seeking dismissal or summary resolution on the same 

grounds it successfully pursued below.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

JAY and BOATWRIGHT, JJ., concur.