Medical Malpractice

Medical Malpractice Statute of Limitations in Florida

Published on: January 3, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Under section 95.11(4)(b) of the Florida Statutes, a plaintiff must bring his or her action for medical malpractice within 2 years from the time of the incident that gave rise to the lawsuit or within 2 years from the time the incident was discovered if due diligence were exercised. In a recent case, a plaintiff appealed a final judgment in favor of a doctor and hospital. The court had granted summary judgment in their favor on the basis of a statute of limitations defense.

The doctor performed hip replacement surgery on the plaintiff in 2004. The next day the plaintiff told the doctor that his leg was numb and he had a foot drop. The doctor and staff told him these symptoms would go away after physical therapy. The plaintiff continued treatment with the doctor, but his symptoms didn’t improve.

In 2005, the plaintiff went to see a neurologist who advised him he had a permanent neurological deficit. In 2007, the plaintiff filed a notice of intent as required by statute and then the malpractice action.

Amending a Medical Negligence Complaint in Florida

Published on: December 20, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a mother sued several medical professionals both on behalf of herself and her deceased 21-year-old daughter’s estate. She alleged that the medical professionals were negligent after her daughter died of MRSA lobular necrotizing pneumonia.

The defendants filed a motion asking the lower court to take judicial notice of a circuit court’s shelter orders in which there was found probable cause to remove the deceased’s children’s from her care. The shelter orders also found abuse of alcohol and drugs, failure to submit to drug testing and domestic violence. The mother objected on the grounds that the orders included inadmissible hearsay and character evidence.

The medical professionals argued that the daughter’s system had been affected by alcohol and hydrocodone that combined with the pneumonia to impair her breathing ability and resulted in death. At trial, its expert witness testified that she died of pneumonia complicated by aspiration and intoxication.

Medical Negligence on Cruise Ships That Depart From Florida

Published on: December 13, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s large tourism industry gives rise to interesting legal questions regarding personal jurisdiction over cruise line defendants who have been negligent. Personal jurisdiction refers to whether the court has power over the parties in a particular lawsuit. If a court does not have personal jurisdiction, its rulings and orders can’t be enforced upon that person or entity.

Can a defendant be held responsible in Florida courts if he or she simply works on a boat that departs from Florida? The answer to this question can impact ship doctors, as well as other ship personnel. A recent case illustrates the answer.

In the case, a couple took a seven-night cruise on a Royal Caribbean Cruise Line. She went to the ship’s doctor as the boat neared Haiti for treatment of serious abdominal pain. The ship’s nurse and doctor saw her. She was treated for gastritis, but she worsened. She got off the ship in Mexico and went to the hospital where she got an abdominal surgery. She was treated for sepsis and multiple organ failure. She also experienced a cerebral hemorrhage.

Can a Defendant’s Educational Failures Be Used in Florida Medical Negligence Cases

Published on: November 20, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Medical malpractice cases can turn on expert testimony. What other kinds of evidence may be used to show a doctor is negligent? A doctor’s history of educational difficulties and failures are typically inadmissible to prove negligence. In a recent case, the plaintiff was referred to a doctor after she told her primary care physician about cramping, pain and bleeding. The doctor found she needed a hysterectomy and performed one. She came back to the hospital five days later complaining of pain and discomfort. Her ureter was blocked, but there was too much inflammation to perform an immediate surgery.

The plaintiff was required to wear a nephrostomy tube for three months, during which she had diarrhea, nausea and vomiting. Her ureter was repaired, but she still suffered pain at the time of trial and wet herself every night.

She sued the doctor and his employer for medical malpractice. During the trial, nobody disputed that the ureter injury was caused by the hysterectomy. The issue was whether the doctor was negligent not to check the integrity of the ureter after the operation.

Who Qualifies as a Medical Expert in Florida Medical Malpractice?

Published on: September 5, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida medical malpractice cases, a plaintiff must conduct an investigation among experts to see if there are reasonable grounds to believe a particular medical professional was negligent and that the negligence led to his or her injury. If so, the plaintiff must notify each defendant of the intent to file suit against them for medical negligence, and include a written “medical expert opinion” from a medical expert.

If the defendant is a specialist, the medical expert chosen by the plaintiff must be one who is in the same specialty as the provider and has experience treating similar types of patients. The concept of “similar specialty” has been contentious in Florida medical malpractice law. For example, is an ER physician qualified to testify against an orthopedic surgeon? May a pulmonologist testify against an ER doctor?

In a recent case, a plaintiff filed a lawsuit against her ophthalmologist and surgical center after getting a lower eyelid surgery. She claimed that she’d gotten a bacterial infection during the surgery, which led to her needing more surgery, in spite of which her eye was disfigured.

Can a Florida Hospital Be Liable for Negligent Acts by Its Employees?

Published on: August 23, 2013 | by Friedman Rodman Frank & Estrada, P.A.

“Respondeat superior” is a theory that may be asserted in personal injury cases in many jurisdictions, including Florida. It makes employers liable when their employees commit wrongful acts within the course and scope of their employment. A recent case illustrates how this type of theory can be pursued in a medical malpractice context. Respondeat superior cases differ from direct liability cases that are brought against employees of hospitals like doctors, nursing staff, or administrative staff.

In the case, parents took their young daughter to an ER twice in one day when she had an acute asthma attack. On both visits, the staff wouldn’t treat her. They would only treat her when the ambulance brought her a third time. The parents filed a lawsuit against the hospital, claiming it was liable for its staff’s failure to treat their daughter.

The hospital asserted that the claim was a medical malpractice claim. In Florida, medical malpractice claims are subject to a presuit requirement, which was not met in this case. The hospital’s argument was rejected.

Birth Injuries and Medical Negligence in Florida

Published on: August 8, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The birth of a child is often a joyous event for a couple. Unfortunately, there are cases when obstetricians make errors that lead to permanent problems for the child.

Last year, a Florida Court of Appeals considered the birth of a boy who, at his birth, seemed to have limited use of an arm, possibly “shoulder dystocia,” which can be the result of an injury to a particular nerve during a baby’s birth.

Within a few months of the baby’s birth, his mother contacted a plaintiff’s personal injury law firm that focused on medical malpractice cases. The law firm initiated the presuit investigation process that is required. After reviewing the obstetrical records, the law firm told the mother that they didn’t think the doctor had failed to meet the obstetrical standard of care during the delivery. Accordingly, the mother dropped the issue.

The boy experienced years of physical therapy, but after a few years it became likely that therapy was not ever going to totally resolve the issue. His mother consulted a specialist who suggested surgery and who told her that the boy’s injury might have been caused by medical negligence. A couple of years later, she filed suit against the obstetrician and her practice.

The doctor defended on the grounds that the lawsuit was barred by the statute of limitations. She filed two motions to dismiss the action. In the first motion she argued that the complaint was an improper pleading that failed to state a cause of action by claiming the plaintiff did not become aware of a cause of action for malpractice until a few years after the baby’s birth.

The second motion claimed the complaint was a sham since the mother had consulted a medical malpractice firm in 2005, just after the baby was born. The doctor claimed that since she suspected medical practice in 2005, it was false to try to claim she didn’t become aware of the medical negligence until 2009 when a doctor told her the boy’s shoulder dystocia could have been caused by the obstetrician.

What is Proximate Cause in a Florida Medical Malpractice Case?

Published on: July 5, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Medical malpractice cases in Florida require a plaintiff to prove (1) the standard of care owed by the health care professional, (2) the health care professional’s breach of that standard, and (3) that the breach “proximately caused” the damages claimed. “Proximate cause” in Florida means that the negligence more likely than not caused the injury. It isn’t sufficient to show that what was done or not done by a health care professional probably affected the outcome. Usually an expert doctor must testify on this point.

In a recent case, a seventeen-year-old boy diagnosed with aortic stenosis collapsed during a preseason baseball workout. Aortic stenosis is a heart condition in which the aortic valve ‘narrows’ and the heart has a reduced ability to pump blood, which puts the person suffering from the condition at an increased risk for a heart attack.

Prior to his death, the boy was cared for by a pediatric cardiologist who saw him every year to administer stress tests and echocardiograms. The doctor agreed that the boy could play baseball but not contact sports. In 2001, the doctor told the boy he would need a stress test before starting the 2002 baseball season. The stress test was not performed before the new season.

Important Florida Supreme Court Ruling on Arbitration Agreements for Medical Malpractice

Published on: June 25, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Many Florida health care providers ask patients to sign arbitration agreements before they are treated. These agreements keep medical malpractice cases from going before a jury.

A medical malpractice cause of action in Florida is controlled by Chapter 766 of the Florida Statutes, the Medical Malpractice Act (MMA). The MMA specifically states that after the pre-suit and investigation requirements are fulfilled, either party may ask the others to submit to voluntary binding arbitration.

Assuming the claimant offers and the defendant agrees, the statute caps damages that may be awarded at arbitration to $250,000 for non-economic damages, calculated in terms of percentage of ability to enjoy life. (Non-economic damages include pain and suffering, but do not include actual medical expenses). The defendant is required to concede liability in this scenario.

However, if a defendant does not agree to voluntary binding arbitration in a case where the claimant has died, the cap on non-economic damages is $1 million at trial. And if a claimant does not agree to voluntary binding arbitration requested by the defendant and elects to go to trial, non-economic damages are capped at $350,000.

Recently, an important Florida Supreme Court case interpreted the law in a way that should help many medical malpractice plaintiffs. The case arose when a 67-year-old man suffered a hematoma during hernia surgery when one of his veins was lacerated and later died. His wife filed an action against the surgeon and the surgical group who operated on him, suing for medical malpractice leading to wrongful death.

The surgeon and his group made a motion to compel arbitration in accord with an agreement signed by the deceased before his surgery. This agreement not only bound him and his estate to arbitration, but it also capped his non-economic damages in case of medical malpractice to $250,000 per incident. The agreement also stated that a patient who wished to complain had to follow the standard procedure of serving a pre-suit notice.

The trial court ordered arbitration. The decedent’s wife appealed, argued that the arbitration agreement violated public policy as articulated in the MMA. Nonetheless, the First District Court of Appeal affirmed the trial court’s decision. The decedent’s wife appealed to the Florida Supreme Court.

Florida Appellate Court Reverses Jury Verdict in Medical Malpractice Case

Published on: June 6, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Medical malpractice cases in Florida must meet high standards of proof. They usually require testimony from expert doctors and nurses who are willing to testify against the doctor or nurse in the case. A Florida appellate court recently reiterated the standards by which a plaintiff can win a medical malpractice case.

In the case, an eighty-seven year old woman fell and broke her hip. Before she fell, she had been reasonably healthy. After she fell, she was admitted for hip surgery and began to deteriorate. She started to suffer from anemia, a urinary tract infection and acute renal failure, among other things.

The woman became mostly immobile and needed help to move around. An anti-coagulant was prescribed to avoid a pulmonary embolism. She also developed a Stage IV bedsore on her spine. Nonetheless she was discharged from the hospital and moved to another facility.

A visiting doctor noticed that the bedsore was discharging material. He and a nurse used a scalpel to cut out the dead tissue, applying a topical anesthetic. Because of the anti-coagulant the woman was taking, there was a threat of excessive bleeding. Therefore, they could not remove all the dead tissue and treated it with enzymatic debridement. They made several recommendations for her treatment until they could visit again the following week to finish up their care of the bedsore.