Articles Posted in Medical Malpractice

In recent decades, the irresponsible prescription and distribution of opioid pain medications has resulted in tens of thousands of overdose deaths and immense harm to families and individuals from the harmful effects of the addictive drugs. Recent lawsuits filed on behalf of states and counties across the country against drug manufacturers have resulted in billions of dollars in settlements and awards to the plaintiffs to compensate them for the harm caused by the opioid epidemic. In a first-of-its-kind new verdict, a federal jury has found that pharmacies can also be held accountable for their contribution to the flood of opioid drugs onto our streets.

According to a national news report, a federal jury in Ohio reached a verdict in a case filed by several Ohio counties against three major pharmacy chains. The lawsuit alleged that the pharmacy chains contributed to a public nuisance by their lack of oversight in filling prescriptions for dangerous opioid drugs which contributed to overdoses and deaths within their jurisdictions. The decision represents the first time that a judge or jury has found that public nuisance laws apply to pharmacies in this context, and could result in other successful lawsuits against pharmacies for their role in the opioid epidemic. The news report cautions that similar cases have failed in other states and that each state’s differing public nuisance laws will play a role in whether pharmacies can be held accountable for their prescribing practices. Additionally, the defendants pledge to appeal the verdict to higher courts.

Licensed pharmacists have a duty to act in certain cases if they know or should know that a prescription is suspicious or erroneous. While the recent verdict determined that this duty can extend to filling opioid prescriptions, it also applies in a broader sense to other dangerous or mistaken prescriptions that a person attempts to fill. For example, a pharmacist has a duty to ensure that the dosage and drug prescribed to a patient are safe when considering the information known to the pharmacist. This duty helps prevent mistakes or typos by prescribing doctors from harming or killing patients who fill their prescriptions at a pharmacy. If a pharmacist fills a prescription that has a known harmful drug interaction with another medication that a patient is prescribed, they may be held accountable in civil court for the damages stemming from the prescription error, even if a licensed doctor wrote the prescription and it was properly filled.

Florida medical malpractice lawsuits must pass several procedural hurdles before a judge or jury is able to listen to the facts of the case and decide if the plaintiff is entitled to any relief. In Florida, one such rule requires plaintiffs to submit a statement from a qualified medical expert corroborating their claim before the suit can proceed. This requirement is designed to weed out meritless claims and free up space in court dockets for malpractice claims that have a chance of succeeding. A circuit of the Florida Court of Appeals recently addressed a petition filed by a group of medical malpractice defendants that alleged the plaintiff failed to meet the presuit expert corroboration requirements for a claim to proceed. The defendants petitioned the court to directly challenge a lower court ruling that denied the defendant’s motion to dismiss the plaintiff’s claim based upon this argument.

The plaintiff in the recently decided case sued several defendants affiliated with the Shands Teaching Hospital, located on the campus of the University of Florida in Gainesville. The plaintiff alleged in their suit that medical services provided by a certified nurse practitioner at the hospital were not compliant with the standard of care required and that the plaintiff was injured as a result. In order to comply with the presuit expert corroboration requirement for a Florida medical malpractice claim, the plaintiff submitted an affidavit from a certified medical doctor with knowledge in the field. In response to the plaintiff’s complaint, the defendants alleged that the plaintiff’s medical doctor expert was not qualified to address the standard of care applicable to the certified nurse practitioner who rendered care in the plaintiff’s case.

The trial court reviewed the qualifications of the plaintiff’s medical expert, comparing them with the substance of the plaintiff’s claim and the role assumed by the defendant. The court subsequently denied the defendants’ motion to dismiss, finding that the plaintiff’s expert opinion was sufficient to fulfill the presuit requirements for the case to proceed. The defendants then filed a petition with the Florida Court of Appeals, attempting to have their motion reheard by a higher court. In addressing the petition, the high court noted the strict procedural requirements for the court to hear the defendants’ appeal, and ultimately declined consideration of their arguments. Specifically, the court ruled that the defendants did not show that proceeding with the case at the trial court would result in direct and irreparable harm to the defendants that could not be corrected on direct appeal. As a result of the appellate ruling, the plaintiff’s claim will proceed at the lower court toward a settlement or trial.

The procedural requirements for successfully pursuing a Florida medical malpractice claim may be complicated and confusing to victims of medical malpractice. Plaintiffs must be sure they are pursuing a case in the proper venue against any appropriate defendants. Additionally, plaintiffs must initiate their claim within the statute of limitations period and also meet several pre-suit notice requirements that can appear frivolous. These procedural requirements are far from frivolous, however, because a plaintiff’s failure to fulfill any of the requirements could be permanently fatal to their claim, irrespective of whether the defendant committed malpractice or not. A recent opinion published by the Florida District Court of Appeal discusses the issue of pre-suit notice requirements of a Florida medical malpractice claim.

The plaintiff in the recently decided suit received treatment from the defendant after suffering injuries while incarcerated. According to the facts discussed in the appellate opinion, the plaintiff alleged that the defendant committed medical malpractice by making mistakes during a surgery performed on the plaintiff, which caused permanent damage. The plaintiff pursued a medical malpractice claim against the defendant based on the alleged negligence.

Florida law requires medical malpractice plaintiffs to meet certain pre-suit notice requirements in order to have their claims heard by the court. In addition to other notice requirements, plaintiffs must notify each defendant by certified mail that they are being sued for medical malpractice and include an authorization form to release the plaintiff’s medical records for the upcoming suit. If these notices are not properly sent to each defendant within the two-year statute of limitations for a Florida medical malpractice claim, a plaintiff’s suit can be dismissed without any analysis of their actual claims.

Recently, a medical malpractice plaintiff appealed a trial court’s order granting summary judgment in favor of a hospital system. The case arose when the plaintiff visited a Florida hospital for appendicitis and an abscess. An on-call surgeon met with the plaintiff; however, the plaintiff felt uneasy with the surgeon and requested another doctor. The next doctor was not available until the next morning, so the plaintiff proceeded with the surgeon. The plaintiff requested antibiotics after the surgery, but the surgeon explained that they were unnecessary. However, the plaintiff suffered a serious postoperative infection. He filed a lawsuit against the doctor and the hospital. The hospital argued that the doctor was an independent contractor, and not an employee or agent of the hospital.

Under Florida’s vicarious liability laws, an employer may be liable for the negligence of the employees committed within their employment scope. In cases involving hospitals and independent contractor physicians, a hospital may still be liable if the hospital “cloaked her with apparent authority to act on its behalf.” Apparent agency exists if the plaintiff can establish three elements.

The three elements of an apparent agency inquiry are:

Recently, a Florida appellate court issued an opinion in a consolidated case against a hospital and behavioral health company. The defendants petitioned the court to review a trial court’s orders denying their motions to dismiss a plaintiff’s claim against them. The defendants argued that the court should dismiss the claims because the plaintiff did not comply with Florida’s medical malpractice presuit requirements.

According to the court’s opinion, the case arose after a personal representative of the deceased filed a negligence lawsuit against the defendant. The family claimed that the plaintiff was transferred from a hospital to a residential treatment facility (RTF) operated by the behavioral health company. During her hospital stay, the woman received several medications; however, at transfer, the hospital provided the RTF with prescriptions but not the actual medications. The RTF did not administer the medicines, and the plaintiff died as a result of medical withdrawal.

The plaintiff’s lawsuit claimed that both entities were negligent because they knew or should have known that the failure to administer medication would likely result in life-threatening injuries. The defendants argued that the case was not sound in ordinary negligence, but rather medical malpractice. As such, because the plaintiff’s claim did not comply with Florida’s requirements, the trial judge should dismiss the complaint. The trial judge denied the motions; however, they noted that the case was a “close call.”

Recently, the Board of Trustees of the University of South Florida (USF), appealed a final judgment in favor of a plaintiff in a medical malpractice lawsuit. According to the court’s opinion, the plaintiff underwent abdominal surgery at Tampa General Hospital. USF employed the surgeon that performed the plaintiff’s surgery. Post-surgery, the woman’s condition quickly deteriorated, and she was transferred to the intensive care unit (ICU). The plaintiff alleged that during this time, her surgeon and a critical care team oversaw her care. After some time, the critical care team determined that her condition was likely an infection. The critical care team administered antibiotics, and the woman underwent a second surgery. The surgeon who performed the surgery discovered that there was a perforation in the woman’s bowel. The woman suffered severe life-altering injuries, which required several surgeries and long-term hospitalization and rehab.

The plaintiff filed a medical malpractice claim against her original surgeon, the hospital, and USF. The critical care team settled with the woman before trial. At trial against USF and the hospital, the plaintiff claimed that the surgeon perforated her bowel, and her injuries were the result of the failure of everyone involved in her treatment. The woman presented an expert who testified that she would not have suffered long-term injuries if the woman received timely antibiotic treatment.

USF countered that their surgeon was not negligent, and even if he was, the woman’s injuries were not the result of his negligence. Instead, they claimed that the plaintiff’s injuries were the result of the critical care team’s failure to administer antibiotics at the appropriate time. Further, the surgeon denied perforating the woman’s bowel and argued that the injury occurred after surgery. Moreover, both parties’ experts opined that even if the bowel injury occurred during an operation, that was not a departure from a standard of care. At the close of the evidence, the trial court dismissed the hospital from the case. USF argued that if the jury found them liable, the jury should consider apportioning liability to the critical care team.