Medical Malpractice

When Must a Plaintiff Comply with Strict Requirements of a Florida Medical Malpractice Lawsuit?

Published on: May 14, 2019 | by Friedman Rodman Frank & Estrada, P.A.

When a patient is injured after receiving negligent medical care, they may be able to pursue a Florida medical malpractice lawsuit against the medical professionals they believe to be responsible for their injuries. Florida medical malpractice lawsuits, however, are subject to several additional requirements that can be burdensome for many prospective plaintiffs. For example, before filing a medical malpractice lawsuit, a plaintiff must determine that there are “reasonable grounds” for their claim by conducting a pre-suit investigation.

There are several other differences between medical malpractice cases and traditional negligence cases. For example, due to Florida’s medical malpractice damages cap, the number of damages available to medical malpractice plaintiffs are capped at a lower amount than damages in traditional negligence claims. Finally, the stature of limitations in a Florida medical malpractice lawsuit is just two years, whereas the statute of limitations for traditional personal injury cases is four years.

That being said, most Florida injury victims would prefer that their case be classified as one of traditional negligence. However, when a case arises in a quasi-medical setting, defendants routinely try to categorize a plaintiff’s claim as a medical malpractice claim. Depending on the nature of the claim, the stage of litigation, and the amount of time that has passed, this could completely defeat a plaintiff’s chance at recovering for their injuries. A recent case illustrates the types of arguments defendants make in hopes of successfully categorizing the plaintiff’s claim as one of medical malpractice.

Florida Court Dismisses Medical Malpractice Case Based on Insufficient Expert Affidavit

Published on: February 18, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this year, a state appellate court issued a written opinion in a Florida medical malpractice case requiring the court to determine whether the plaintiff’s three expert affidavits were sufficient to comply with the requirements of Florida Statutes 766.102 outlining the expert affidavit requirement.

Florida’s Expert Affidavit Requirement

Under Florida law, a plaintiff bringing a Florida medical malpractice claim must conduct a pre-suit investigation to “ascertain whether there are reasonable grounds to believe that the defendant medical provider was negligent, and that the negligence resulted in injury to the claimant.” In addition, a plaintiff must obtain an expert affidavit from a qualified expert stating that the expert has reviewed the plaintiff’s case, and that it has merit.

The Facts of the Case

According to the court’s opinion, the defendant orthopedic surgeon performed a hip-replacement surgery on the defendant. During the operation, the defendant fractured the plaintiff’s hip. The plaintiff filed a Florida medical malpractice claim against the orthopedic surgeon. In support of her claim, the plaintiff presented three expert witness affidavits from an emergency room physician, a radiologist, and a nurse.

Florida Court Discusses Proximate Cause Requirement in Recent Medical Malpractice Case

Published on: January 28, 2019 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a state appellate court issued a written opinion in a case discussing one of the most complex and contested elements in Florida medical malpractice cases. The case required the court to explain the causation requirement as it applies to Florida medical malpractice claims. Ultimately, the court remanded the case to the lower court based on the lower court’s application of an incorrect legal principle.

The Facts of the Case

According to the court’s recitation of the facts, the plaintiff noticed a large mass on the back of her head and went to her primary care doctor for an evaluation. That doctor determined that the mass was a tumor and referred the plaintiff to a surgeon. The surgeon diagnosed the mass as an osteosarcoma, and determined that it was close to pressing upon her brain. Thus, the surgeon recommended the plaintiff undergo surgery to de-bulk the tumor. However, before he ordered the surgery, the surgeon ordered several tests to make sure the plaintiff’s body could handle the surgery.

Evidently, the test results came back abnormal. However, the plaintiff’s primary care physician cleared her for surgery nonetheless. On the morning of the surgery, the plaintiff’s anesthesiologist was running late, so she was seen by another anesthesiologist (the defendant) who quickly reviewed the plaintiff’s test results. However, the defendant only saw some of the abnormal results. The defendant determined that, from what he saw, everything seemed fine. In the middle of the pre-anesthesia interview, the plaintiff’s anesthesiologist showed up, and began the evaluation from the beginning.

Medical Malpractice Case Dismissed Due to Plaintiff’s Failure to Present Sworn Expert Testimony

Published on: December 6, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Before a court hears any Florida medical malpractice case, specific procedural requirements must be met. If a court determines that a plaintiff failed to follow each of the necessary steps, the court will very likely dismiss a plaintiff’s claim. While some plaintiffs may be able to re-file their complaint after a dismissal, many plaintiffs will find that their claims are barred by the statute of limitations, leaving them without any means of recovery. Thus, in a Florida medical malpractice case, it is critically important to ensure that all procedural requirements are strictly followed.

A recent case illustrates the consequences of failing to comply with the pre-suit requirement to provide expert testimony in support of a claim.

The Facts of the Case

According to the court’s opinion, the plaintiff had a knee surgery performed at the defendant medical center. After the surgery, the plaintiff experienced shortness of breath. A doctor placed the plaintiff on oxygen, ordered an x-ray, and then sent her home two days later. Two days after her discharge, the plaintiff’s shortness of breath worsened, and she was admitted to a different medical center where she was diagnosed with pneumonia. It was also determined that the plaintiff likely had a stroke after her discharge from the defendant medical center.

Court Permits Florida Medical Malpractice Plaintiff’s Case to Proceed Despite Non-Compliant Expert Affidavit

Published on: September 24, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, the state’s supreme court issued a very important opinion in a Florida medical malpractice case discussing under what circumstances a plaintiff’s case must be dismissed when she fails to comply with the expert opinion requirement contained in Florida Statutes section 766.102. Importantly, the court held that a plaintiff’s case should not be dismissed for lack of a qualifying expert opinion unless the defense can show that the plaintiff’s failure to comply caused prejudice to the defense.

The Facts of the Case

The plaintiff was the personal representative of a woman who died after having a complicated pregnancy that resulted in the stillbirth of her child. Pursuant to section 766.203(2), the plaintiff designated an expert witness, who was a board-certified OB/GYN.

The plaintiff’s selected expert had over 30 years of experience in the field, and had delivered over 14,000 babies. She had also served as chief of the OB-GYN department at a large medical center, and Chief of Staff at a small women’s specialty hospital. In 2005, the expert began law school, and obtained her Juris Doctorate in 2007. However, when asked, the expert stated that she “was engaged in full-time patient care until March 2008.”

Plaintiff’s Medical Malpractice Lawsuit Dismissed for Failing to Meet Pre-Suit Requirements

Published on: June 1, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a state appellate court issued a written opinion in a Florida medical malpractice lawsuit discussing the potential consequences that may arise when a plaintiff fails to properly follow all of the procedural requirements. Ultimately, the court affirmed the dismissal of the plaintiff’s lawsuit against the defendant because the pre-suit notice provided by the plaintiff contained the affidavit of an infectious disease doctor, rather than that of an ophthalmologist, which was the specialty of the defendant doctors.

The Facts of the Case

The plaintiff underwent a surgery to repair droopy skin around her eye. The surgery was performed by one of the defendant doctors. The surgery went as planned, and another defendant doctor conducted the post-surgical examinations. Both defendant doctors were ophthalmologists.

After the surgery, the plaintiff developed an infection in her eye. The infection left her with serious visual impairments, dizziness, and a heightened risk of future infections. She filed a personal injury lawsuit, first naming the doctor who performed the surgery as the only defendant. Attached to this claim, the plaintiff included an affidavit from an ophthalmologist stating that the plaintiff’s case had merit.

Federal Appellate Court Finds that the Feres Doctrine Bars Medical Malpractice Liability

Published on: May 29, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, a federal appellate court issued an opinion stemming from a lawsuit filed by the husband of a Navy lieutenant who died following complications from childbirth. The husband filed a lawsuit alleging that his wife’s death was caused by the negligence of the medical staff at a naval hospital. Ultimately, the court reluctantly affirmed the dismissal of the lawsuit, based on the oft-criticized Feres doctrine.

The Facts of the Case

In 2013, a Navy lieutenant resigned from her position after she and her husband learned that they were expecting a child. Sadly, even though the woman’s pregnancy was normal, she died from severe hemorrhaging about four hours after her daughter’s delivery.

The Procedural Posture

Following the woman’s tragic death, her husband filed a lawsuit alleging that the hospital was negligent in their treatment of his wife and that their negligence resulted in her wrongful death. The district court dismissed the lawsuit based on the Feres doctrine.

Court Orders New Trial in Medical Malpractice Case After Jury Returns Zero-Dollar Damages Award for Plaintiff’s Pain and Suffering

Published on: May 22, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this year, a state appellate court issued a written opinion that raised an interesting issue that comes up in Florida personal injury cases from time to time. The case presented the court with the opportunity to discuss under which circumstances a jury’s zero-dollar damages award is insufficient as a matter of law and must be rejected.

The Facts of the Case

The plaintiff woke up one evening with an excruciating headache, the worst she had ever experienced. She began to vomit and was also nauseous. Her symptoms did not subside after two days, and at that point, she went to the defendant hospital, thinking she had a bad case of food poisoning.

Despite telling the nurses that she had a terrible headache, that fact was not documented in the plaintiff’s chart. Instead, the plaintiff’s chart contained notes of gastrointestinal symptoms. The plaintiff was eventually released from the hospital without a diagnosis and was instructed to follow up with a primary care doctor in the near future.

Verdict in Favor of Patient Reversed by Court Due to Patient’s Failure to Prove Causation

Published on: April 19, 2018 | by Friedman Rodman Frank & Estrada, P.A.

Recently, an appellate court issued a written opinion in a case overturning a verdict that initially favored a surgical patient’s medical malpractice case. The reversal of this verdict highlights a primary element that is necessary for Florida medical malpractice plaintiffs. Here, the Supreme Court held that without sufficient evidence to show that a plaintiff’s injury was directly due to a preventable error, there is no way to ascertain causation.

Preventable Injuries in Florida Medical Malpractice Lawsuits

Medical errors are now one of the leading causes of death in the United States and contribute significantly to non-fatal medical injuries as well. Although some differences exist among state-specific medical malpractice laws, the overriding definition is similar among all states.

In Florida, for a plaintiff to have a favorable outcome in a medical malpractice case, the first requirement is evidence that a medical professional was providing services to the patient. Following this, there must be testimony from a medical expert that the medical negligence was a result of a divergence from the standard of care. Most importantly, in Florida, it is necessary to illustrate that this medical negligence was the direct cause of the injury to the patient. If the plaintiff cannot illustrate that the prevention of this medical negligence would have also prevented their injury, the claim remains speculative at best.

Court Holds Jury Should Decide Issue Whether Insurance Company Is on the Hook for Plaintiff’s Future Medical Expenses

Published on: December 15, 2017 | by Friedman Rodman Frank & Estrada, P.A.

Earlier this month, a state appellate court issued a written opinion in a personal injury case discussing when summary judgment is appropriate in a car accident case involving the payment of future medical expenses. The case illustrates an important concept that is applicable in all Florida car accident cases when the at-fault driver’s insurance company disputes some aspect of the claim.In this case, the court determined that the expert witness testimony presented by the insurance company gave rise to a material issue as to whether the plaintiff’s continued medical care was a result of the accident. As a result, the court reversed a lower court’s decision granting summary judgment in the plaintiff’s favor.

The Facts of the Case

The plaintiff was involved in a car accident with a driver who was insured by the defendant insurance company. The insurance company acknowledged that the other driver was at fault and agreed to pay the plaintiff’s medical expenses in advance. In total, the insurance company covered approximately $53,000 of the plaintiff’s medical expenses.