Medical Malpractice

Appeals Court Finds Medical Malpractice Pre-Suit Notice Statutes Do Not Violate Florida Constitution

Published on: July 31, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Weaver v. Myers, a Florida woman filed a medical malpractice lawsuit against a physician following the death of a loved one without first complying with the pre-suit notice requirements enumerated in Sections 766.106 and 766.1065 of the Florida Statutes. According to the woman, certain 2013 amendments to the law violated the federal Health Insurance Portability and Accountability Act (“HIPAA”) and the Florida Constitution. After both parties filed a motion for summary judgment, the trial court found that the amendments at issue were constitutional and were not preempted by the federal law.

Next, the woman filed an appeal with Florida’s First District Court of Appeal. In support of her case, the woman argued the amendments were not valid because they violated the separation of powers doctrine, violated a special legislation limitation imposed by the Florida Constitution, impermissibly burdened her access to the courts, and violated the deceased patient’s right to privacy. The woman also claimed the law was preempted by the HIPAA statute.

Appellate Court Affirms Legal Fees Award for Plaintiffs in Florida Medical Malpractice Case

Published on: January 19, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Duong v. Ziadie, a woman filed a medical malpractice lawsuit on behalf of her incapacitated son against his doctor, the practice where the doctor was employed, and other defendants. According to the woman’s complaint, the physician’s negligent care caused her son to become permanently paralyzed. In her lawsuit, the mother sought damages related to her son’s medical bills, pain and suffering, and loss of earning capacity. She also asked the court to award his minor children financial compensation for their loss of parental services and other damages.

Prior to trial, the mother submitted a formal proposal for the settlement of each person’s claim to the allegedly negligent physician. The woman also stated she would seek sanctions against the doctor if he refused the offer and a jury issued an award against him for at least 25 percent more than her $1 million proposal. The man’s doctor refused to settle the case, and the lawsuit proceeded to trial. After reviewing the evidence, jurors issued an award of approximately $10 million in favor of the plaintiffs. In addition, the jury found that the physician was 75 percent responsible for the incapacitated man’s harm. The jurors also determined that another doctor was 25 percent at fault.

Appellate Court Rules Negligence Case Against Hospital is Not Subject to Florida Medical Malpractice Act

Published on: December 24, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Fifth Circuit Court of Appeal has refused to grant a hospital’s petition for a writ of certiorari. In Holmes Regional Medical Center, Inc. v. Dumigan, a man was apparently injured by a drug that was used on him during a surgical procedure even though it was previously recalled. As a result of the hospital’s alleged failure to dispose of the recalled drug, the man and his wife filed a negligence and products liability action against the medical facility where his surgery was performed. After a trial court refused to grant the hospital’s motion to dismiss the case, the hospital asked Florida’s Fifth District Court of Appeal to review the lower court’s order.

According to the hospital’s petition for a writ of certiorari, the plaintiffs’ lawsuit was inappropriately characterized as a products liability and negligence action. The medical facility claimed that the statutory presuit notice requirements enumerated in the Florida Medical Malpractice Act (“FMMA”) instead applied to the case. Since the plaintiffs failed to comply with the FMMA’s notice requirements, the hospital argued that the trial court should have dismissed the case.

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.