A patient in a second-floor surgery center coded and EMTs had to take her down the stairs, because the elevator was too small to fit her stretcher. She died at the hospital, and her family contended she might have been saved if the elevator had been big enough to accommodate her. The family and the surgery center filed a lawsuit against the insurer of the building, alleging the size of the elevator had been key to her death. The judge did not buy the argument.

Jacqueline Dixon injured her neck and back in a car accident and in 2008 underwent a discogram with lumbar facet ablation at Florida Atlantic Orthopedics, an ambulatory surgery center in Boca Raton. After surgery she became unresponsive and her heart rate fell to 30 beats per minute.

Anxious staff transferred Ms. Dixon to the surgery center's post-anesthesia care unit, but her pulse was very faint so she was taken to the OR, where she was placed on a ventilator and 911 was called. But EMTs responding to the 911 call could not fit Ms. Dixon's stretcher into the elevator. They had to take the stairs, which took longer than the elevator. She arrived at the hospital in cardiac arrest and died soon thereafter.

In addition to filing a medical malpractice lawsuit in state court, Ms. Dixon's family joined with the surgery center in a lawsuit against Maryland Casualty Co., which provided commercial and general liability coverage for the building. This lawsuit, filed in federal court, contended that the insurer had a duty to indemnify the surgery center against charges of premises liability. It also charged the insurer with failure to have appropriate policies and procedures for emergency situations and negligent retention and supervision.

Maryland Casualty argued that the real failure was not properly rendering medical care, which is the object of the other lawsuit and is the responsibility of the malpractice insurer. The company pointed to specific exclusions in its policy in this situation. The policy stated that Maryland Casualty had "no duty to defend the insured against any 'suit' seeking damages for 'bodily injury' or 'property damage' to which this issuance does not apply." It further stated that bodily injuries "arising out of the rendering or failure to render any professional service" would be specifically excluded.

The federal court agreed with Maryland Casualty's interpretation of its policy and dismissed the case against the company. The appeals court affirmed that ruling. "Here, it is clear from the state court complaint that the alleged factual origin of Ms. Dixon's injury, and ultimately her death, was medical malpractice during the surgical procedure," the appeals court stated. "But for that medical malpractice, there would have been no need to use the elevator for a stretcher."

William Rutter, an attorney for Florida Atlantic Orthopedics, and Jay Cohen, an attorney for Ms. Dixon's family, did not respond to requests for comment. Sina Bahadoran, an attorney for Maryland Casualty, declined to comment.

Leigh Page