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BREVARD COUNTY (CBSMiami/NSF) – A Brevard County hospital has had their request to dismiss a negligence lawsuit –involving a man who ended up a double amputee – denied by an appeals court on Friday.

Robert and Edith Dumigan filed the lawsuit against Holmes Regional Medical Center, after Robert Dumigan received a contaminated dose of the drug heparin during the bypass surgery.

The ruling Friday by the 5th District Court of Appeal said the contaminated drug caused a severe bacterial infection that led to the amputation of his left leg and right foot.

The lawsuit alleges that the hospital had received notice of a recall of the blood thinner but failed to remove and return all of its supplies of the drug.

Holmes Regional contended that the case should be handled as a medical-malpractice lawsuit. That would have led to dismissal because the Dumigans did not meet pre-suit legal requirements that are involved in medical-malpractice cases. But a three-judge panel of the appeals court agreed with the Dumigans that the lawsuit can go forward as a negligence case, which does not have the pre-suit requirements of medical-malpractice cases.

Here is a portion of the 10-page opinion written by Judge Jay Cohen and joined by judges Thomas Sawaya and Richard Orfinger:

(The) allegedly wrongful act was HRMC’s (Holmes Regional’s) administrative failure to properly remove heparin from its inventory, which it knew or should have known had been recalled. This alleged failure of administrative policy is not unlike the failure of a grocery store to remove a tainted product after having been notified of a recall. Thus, HRMC’s allegedly wrongful act is not unique to the hospital setting and does not involve professional medical judgment or skill. For these reasons, the claim sounds in ordinary negligence rather than medical malpractice, and the … presuit notice requirements do not apply.

“The News Service of Florida contributed to this report.”

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