Medical Malpractice

Tampa Court Holds Diversity Jurisdiction is Proper in Medical Malpractice Case Where Parties Were Fraudulently Joined

Published on: November 26, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Byrnes v. Small, a Florida woman was allegedly injured in 2006 by a medical product that was implanted into her spine in a manner that was not approved by the nation’s Food and Drug Administration. In 2014, the allegedly injured woman filed a personal injury lawsuit against the company that designed, manufactured, and distributed the product that allegedly harmed her, her doctor, and his employer in a Florida state court. Soon afterward, the product manufacturer removed the woman’s case to the Middle District of Florida in Tampa based on diversity jurisdiction.

Federal diversity jurisdiction is appropriate under 28 U.S.C. Section 1332(a) when the parties to a lawsuit are citizens of different states and the amount in controversy exceeds $75,000. In general, the party seeking removal to federal court must demonstrate that federal jurisdiction was justified at the time the case was filed. According to the medical product manufacturer, the physician and his employer were fraudulently joined in the lawsuit in an effort to defeat federal jurisdiction. The manufacturer argued that such joinder was not permitted because the statute of limitations for filing a case against each of the other two defendants had passed. The manufacturer argued before the court that this meant the citizenship of the non-diverse defendants should be ignored. In response, the allegedly injured woman claimed the case should be remanded because the medical product manufacturer failed to meet its burden of demonstrating diversity.

Florida Appeals Court Holds Medical Malpractice Law Does Not Apply Where Organs Were Cremated Following Autopsy

Published on: October 27, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Winter Haven Hospital, Inc. v. Liles, a 49-year-old Florida woman died after receiving treatment for shortness of breath in an emergency room at a hospital. Following the woman’s death, her daughter signed a form providing the hospital with permission to perform an autopsy. The form stated the institution was authorized to retain certain internal organs for further study. After the woman’s daughter sought a second autopsy, she learned that her mother’s internal organs were incinerated by the hospital.

The decedent’s daughter filed a lawsuit against the hospital, the doctor who performed the autopsy, and the pathology company that disposed of the woman’s organs without the daughter’s express consent. In her complaint, the daughter accused the three of conspiracy and committing the tort of outrage. The hospital responded by filing a motion to dismiss the case because the decedent’s daughter failed to comply with the medical malpractice requirements set forth in Chapter 766 of the Florida Statutes. The court denied the hospital’s motion and allowed the daughter to amend her complaint to also seek punitive damages.

Florida Supreme Court Overturns Decision in Medical Malpractice Case: Saunders v. Dickens

Published on: September 9, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Saunders v. Dickens, a Florida man went to see a physician over pain, numbness, cramps, and lack of coordination while standing. The neurologist diagnosed the man with peripheral neuropathy caused by diabetes, although the doctor did not perform tests to confirm his diagnosis. He also sent the man to a local hospital for treatment. An MRI revealed the man suffered from a narrowed spinal canal. After that, the physician apparently consulted with another doctor and performed a neurological examination on the man. Following the examination, the doctor recommended the man undergo surgery for lumbar decompression.

Unfortunately, the man’s condition worsened following surgery. As a result, his doctor ordered additional testing, which revealed other areas of compression in the man’s neck and back. Prior to a second surgery, the man developed deep venous thrombosis.

Eventually, the Florida man obtained a second opinion from a neurosurgeon. The neurosurgeon recommended the man undergo at least two additional surgeries. Before this could happen, however, the man developed degenerative quadriplegia and passed away. Prior to the man’s death, he and his wife filed a failure to diagnose lawsuit against the physician, neurosurgeon, and hospital that treated him. The man settled his claims against each defendant except the doctor with whom he initially sought treatment. According to the physician, the man’s injury resulted from his neurosurgeon’s negligence.

Is There a Non-delegable Duty to Supervise Florida Hospital Doctors?

Published on: May 27, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a 2012 case, a plaintiff appealed a final judgment that entered a defense verdict for a hospital in her wrongful death case. The case arose when her husband went in for back surgery and died the next day from cardiac arrhythmia. After that, the plaintiff sued the hospital for its own negligence and the negligence of its employees.

The plaintiff named an ER physician as a negligent agent for whose actions the hospital was liable. The plaintiff claimed the hospital was vicariously liable under the respondeat superior doctrine. This doctrine permits a company to be held responsible for its employees that act in the course and scope of employment on the employer’s behalf. The plaintiff also alleged the hospital was responsible for the physician’s conduct because there it had a nondelegable duty to supervise him.

The plaintiff’s expert witness testified in deposition that the doctor had violated is duty by delaying in his response to an emergency situation. The hospital filed a motion for partial summary judgment. It argued that the ER doctor was an independent contractor and therefore it wasn’t liable for him. The trial court granted the partial summary judgment, ruling the doctor did not serve as an actual agent of the hospital. The trial court concluded there was no non-delegable duty to supervise. Continue Reading ›

Birth Injuries in Florida

Published on: May 6, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case the parents of a child with birth defects sued an ob-gyn and the woman’s health clinic where she worked for medical malpractice. The child had severe birth defects that the parents believed were caused by a drug the woman had stared taking again in order to treat a chronic disease.

The woman claimed that the clinic knew she was planning to have a second child. An over-the-counter pregnancy test yielded a positive result. Two visits a few days later the clinic told her the pregnancy was nonviable.

The clinic recommended she have a dilation and curettage. She refused. After that she started taking a drug again believing the fetus would be expelled spontaneously. She claimed later she was not aware of the potential adverse effects of taking the drug should the baby be born. The baby was born.

Discovery of Adverse Medical Incidents in Florida

Published on: April 14, 2014 | by Friedman Rodman Frank & Estrada, P.A.

For years, public policy in Florida allowed doctors unfettered authority. In 2004, voters approved Amendment 7, which created a constitutional right for patients to know about a health care facility or provider’s adverse medical incidents, including medical malpractice. This right is important, but it is not total, and it remains important for plaintiffs to tailor their discovery requests appropriately.

In a 2013 case a medical center sought review of an order that it produce specific documents in a medical malpractice lawsuit. The case arose when the plaintiff sued the medical center and others in association with her surgery. During the discovery phase, the plaintiff requested all documents related to adverse medical incidents. She cited to Amendment 7.

The medical center asked the court to issue a protective order. It cited various privileges. The court ordered the medical center to produce any documents that referenced “adverse medical incident” regardless of how the document was labeled. It ignored the potential for violating attorney-client and other privileges. It denied the medical center’s request for a protective order. The defendant filed privilege logs in response.

Victory for Medical Malpractice Wrongful Death Claimants

Published on: March 17, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Recently, the Florida Supreme Court issued a major decision regarding statutory caps on non-economic damages in medical malpractice cases. The case arose when a 20-year-old pregnant woman, the dependent of someone in the Air Force, was admitted to a government medical center with severe preeclampsia. The doctors induced labor and she delivered her child vaginally. However, she lost a lot of blood and didn’t deliver the placenta. She went into shock and cardiac arrest, lost consciousness and died.

Through her estate, her parents and her baby’s father sued for wrongful death and medical malpractice against the United States in the United States District Court for the Northern District of Florida. At a bench trial, the court determined that their economic damages were $980,462.30. Their noneconomic damages (items such as pain and suffering) were $2 million. The district court relying upon section 766.118(2), which covers wrongful death noneconomic damages, capped the damages at $1 million.

The plaintiffs appealed to the Eleventh Circuit Court of Appeals, which affirmed the application of the cap. The appellate court ruled there was no controlling precedent and therefore certified four questions of law for the Florida Supreme Court to answer. These questions included whether the cap violated due process under the Florida Constitution, whether it violated the right of access to the courts, whether it violated the right to trial by jury, and whether it violated separation of powers.

Doctors’ Duty to Prevent Suicide in Florida

Published on: February 28, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a Florida appellate court considered whether a medical malpractice case was appropriate in the case of a suicide where the woman was being treated for depression. The woman’s husband brought the lawsuit.

The woman had a history of depression and was taking Prozac before she was switched to Effexor. The doctor was not aware that the woman had stopped taking the Effexor because of its side effects. She had called her doctor and spoken to his assistant in 2008. She told the assistant she didn’t feel right, wasn’t sleeping well, and was experiencing gastrointestinal distress. She thought it was the Effexor. The assistant wrote this information down in a note to the doctor.

When the doctor saw the note soon after, he decided to change the medication to Lexapro and referred her to a gastroenterologist. The office didn’t ask her to schedule an appointment. The woman picked up samples and a prescription on the same day. The next day she hung herself, leaving no suicide note.

Wrongful Birth Lawsuits in Florida

Published on: January 21, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Wrongful birth is a type of medical malpractice in which parents argue that negligent advice took away their chance to stop conception or terminate the pregnancy. In a recent wrongful birth case, an obstetrics and gynecology group and doctor appealed a final judgment in a medical malpractice action in which the plaintiffs were awarded $2.5 million in damages.

The case arose after a child was born with significant birth defects. During the mother’s pregnancy she had experienced bleeding and had to be examined using ultrasound technology. Her first report indicated the anatomy was mostly normal, but the view was limited based on the fetal position and there were other abnormalities.

The mother was referred to genetic counseling and had to undergo a more detailed ultrasound. She was also given the option for amniocentesis, but declined that option. The second ultrasound also had a limited view, but noted that the anatomy that could be seen looked normal and growth was appropriate.

Notice to Multiple Defendants in Florida Medical Malpractice Cases

Published on: January 10, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Medical malpractice cases in Florida can be complicated and it’s important to retain an attorney with experience to help make sure you meet all the requirements, including the notice requirement. In a recent case, a married couple challenged the trial court’s order granting summary judgment to a doctor and radiologist in their medical malpractice case. The case arose when the wife was taken to the hospital because of pain and vomiting.

In the ER, multiple tests were performed, including a CT scan. A doctor in Switzerland read the scan and prepared a report for the hospital indicating the scan was unremarkable. Nonetheless, the wife was admitted to the hospital and a magnetic resonance angiogram (MRA) was performed.

The MRA results showed a filing defect in an artery. Emboli were suspected. Different personnel found problems on the CT scan not found by the Swiss doctor. An hour later, surgeons operated on the wife to remove a blood clot.