Medical Malpractice

Fatal Cancer Diagnostic Error Results in $10M Verdict

November 11, 2017 | by David J. Halberg, Esq.

When it comes to the prevalence of medical errors, those involving missed diagnosis, misdiagnosis and delayed diagnosis are the most common. Information gleaned from the National Practitioner Data Bank (an electronic collection of all medical malpractice settlement payments made since 1986), diagnostic errors are the most common source of payments and often the most costly and dangerous to patients’ health. medical malpractice lawyer

It’s true that medication errors and on-site surgical errors are very real problems. However, in terms of the sheer volume of cases it’s substantial, with an estimated 80,000 to 160,000 patients suffering permanent disabilities from misdiagnosis annually.

One such case out of South Carolina recently resulted in a $10 million jury verdict to the husband of a woman who died of cancer after there was a communication error between doctors. This resulted in significant delays in life-saving surgery, The State newspaper reports. The doctor and the practice for which he works initially offered to settle her claim for $250,000 – an offer that was declined. Continue reading

Florida Jury Orders Eye Doctor to Pay $13M for Botched Surgery

October 29, 2017 | by David J. Halberg, Esq.

An 80-year-old South Florida man was awarded $13 million after a botched cataract surgery that a jury concluded was the result of medical malpractice.

NBC-6 Miami reports jurors concluded the medical center where the surgery was conducted was liable in a case involving the negligence of an opthalmologist with whom the center contracted for routine eye surgeries. The surgery resulted in patient suffering total blindness in one eye.

As our medical malpractice attorneys in Miami can explain, normally medical centers (hospitals, clinics, nursing homes, etc.) aren’t vicariously liable for the negligence of independent contractors. Instead, they are only vicariously liable for the work of employees. While it must seem to many patients that doctors who work at these facilities work for them, more often than not, this isn’t the case. However, in this case, the jury determined the physician was an actual employee of the center, even though he was practicing on contract.

Vicarious liability stems from a legal doctrine of respondeat superior, which is Latin for “let the master answer.” It means an employer can be liable for the negligent acts of employees who were acting in the course and scope of employment. It does not require proof that the facility itself did anything directly wrong, only that it employed the person who was negligent and that person was acting as an employee at the time the injury occurred. Continue reading

Was Your Hospital Injury Medical Malpractice or General Negligence?

October 6, 2017 | by David J. Halberg, Esq.

Injuries that occur in hospitals are mostly matters of medical malpractice, meaning they stem from substandard care provided by medical professionals. However, some hospital injuries are the result of general negligence (often due to unsafe conditions on the premises). Although hospitals are providers of care, they are also owners of property, with a duty of reasonable care under premises liability law to the general public who enter. medical malpractice

This distinction is clear in some cases. For example, a visitor slips-and-falls in a just-mopped hospital lobby that isn’t marked with a sign. Clearly, that incident isn’t a matter of medical malpractice; the visitor wasn’t even being treated. However, when it comes to patients – current, prospective or leaving – the waters can get muddied.

It’s an important distinction to make because the proof burden for these two types of cases is very different. For general negligence cases, one must simply prove defendant owed a duty of care, that duty was breached and the breach resulted in an accident that caused injuries. However, Florida medical malpractice cases, per F.S. 766.102, require claimants to prove by the greater weight of evidence that alleged actions of health care provider(s) breached the prevailing professional standard of care for that health provider. This considers whether the level of care, skill and treatment in light of all surrounding circumstances is deemed acceptable and appropriate by reasonably prudent similar health care providers. In order to do this, one must present a qualified expert medical witness testimony – and that’s long before one ever gets to the trial phase. There is also the matter of the statute of limitations (the time in which one has to file a case). In Florida, general negligence claims can be filed within four years. Medical malpractice claims have to be filed within two years. Continue reading

Medical Malpractice Lawsuit to be Heard by Florida Supreme Court

September 28, 2017 | by David J. Halberg, Esq.

Attorneys for the estate of a South Florida woman who died during surgery have filed a notice of appeal to the Florida Supreme Court after a divided appellate court decision favored a defendant anesthesiologist. medical malpractice

The 3rd District Court of Appeal last month in a 2-1 ruling upheld a directed verdict for the defendant by the Miami-Dade County circuit judge. Although plaintiff attorney’s notice did not give any detailed information about the arguments that would be made before the state high court, the case originated with the 2009 death of a 45-year-old woman, who was undergoing a surgical procedure to remove a non-aggressive brain tumor.

According to court records, defendant anesthesiologist conducted an evaluation of decedent prior to the surgery. She later died during the operation due to what the majority appellate panel found was an extreme loss of blood. However, the dissenting opinion agreed with plaintiff that anesthesiologist erred in reading an electrocardiogram (EKG) prior to administering anesthesia. An EKG is a test that measures the heart’s electrical activities. While the majority justices found the doctor had acted properly, noting another anesthesiologist also conducted an evaluation prior to surgery, the dissenting justice sided with plaintiff in finding the results of that EKG were abnormal and should have been a red flag that there would be issues in surgery. That puts plaintiffs in a stronger position for the upcoming appeal. Continue reading

Fla. 2nd DCA Awards Expert Witness Fees to Medical Malpractice Plaintiff

September 19, 2017 | by David J. Halberg, Esq.

One of the reasons Florida medical malpractice cases are so complex – and costly – is because they require at least one (and usually more) expert witness. F.S. 766.102(1) places the burden of proof in these cases on the plaintiff (person injured) to show the health care provider breached the prevailing professional standard of care, given the care provider’s care, skill and treatment in light of all relevant surrounding circumstances. The court will look carefully at what the accepted standard of care as viewed by “reasonably prudent similar health care providers.” medical malpractice

The mere fact of a medical injury doesn’t create the presumption of a health provider’s negligence (except in cases where a foreign object, such as a surgical sponge, is found). The way plaintiffs prove defendant care provider breached the standard of care is to have a qualified expert witness – someone of the same or similar experience as defendant – testify as to plaintiff’s position. While our medical malpractice lawyers in Naples work on a contingency fee basis (meaning we aren’t paid unless you win), expert witness fees are something plaintiff is responsible to pay, regardless of the outcome of the case. In many instances, though, when a plaintiff wins, expert witness fees will be covered by the losing party.

However, a recent ruling by Florida’s Second District Court of Appeals held that a plaintiff who prevailed in a medical malpractice lawsuit was entitled to have the defendant pay the expert attorney fees, to the extent plaintiff is able to show the fees were both reasonable and necessary, even though one of those expert witnesses was also a treating physician. Continue reading

Attorney Halberg Negotiates $2.3M Fort Myers Medical Malpractice Settlement

September 1, 2017 | by David J. Halberg, Esq.

Halberg & Fogg PLLC, recently secured a $2.3 million medical malpractice settlement with Golisano Children’s Hospital, stemming from a brain injury and arm amputation of a newborn in 2013.

Halberg fought on behalf of the boy, who was born prematurely at his Lee County home before being whisked to the hospital. As noted in the original complaint, nurses at the hospital are accused of improperly inserting an intravenous line known as a PICC (short for peripherally inserted central catheter).

This medical mistake remained undetected for almost a full week. This was despite the fact the baby had signs and symptoms of serious issues due to impeded blood flow. By the time medical workers discovered their mistake, the newborn’s fingertips were black. His hand was shriveled. Continue reading

PICC Line Injuries

July 31, 2015 | by David J. Halberg, Esq.

The South Florida medical malpractice law firm of Halberg & Fogg PLLC handles cases involving injuries from PICC lines (Peripherally Inserted Central Catheter). These devices along with IV catheters and ports can be helpful if properly handled and inserted.

Unfortunately, if these devices are improperly inserted or handled there can be catastrophic damage to the patient, including infection, loss of limb or even loss of life.

Not only is it important how these devices are handled and inserted, it is also critical how the condition of the patient is followed on an ongoing basis. If warning signs of injury are ignored, the results can be tragic.
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Timely Diagnosis In Breast Cancer Cases

July 27, 2015 | by David J. Halberg, Esq.

According to the American Cancer Society in order to receive immediate and proper medical treatment, timing is vital in a patient who has been diagnosed with breast cancer. The earlier the cancer is detected the sooner the appropriate treatment can be started which betters the survival rate and opportunity for a cure.

The survival statistics of many types of cancer are optimistic if the cancer is diagnosed early and timely medical treatment is provided. That’s why the window of opportunity is crucial and time is of the essence when dealing with this disease. Early detection is key.
Failing to diagnose and treat cancer in a patient who presents with signs and symptoms of the disease may be grounds for medical malpractice against the physician and/or healthcare providers.
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Serious Cancer Risk From Medical Device Used During Laparoscopic Uterine Surgeries

July 22, 2015 | by David J. Halberg, Esq.

The Food and Drug Administration (FDA) has issued a serious warning regarding the use of a medical device during laparoscopic (minimally invasive) surgeries. On November 24, 2014 the FDA updated a pervious warning that it had issued on April 2014.

The device is called a power morcellator which is used in laparoscopic surgeries to divide tissues into small pieces so they can be removed via small incision sites that are made by the surgeon.
Unfortunately, when used to remove uterine fibroids or a uterus during a hysterectomy, it poses a risk of spreading unsuspected cancerous tissue, notably sarcomas.
Continue reading

Improper Diagnosis Leads To Improper Treatment

July 17, 2015 | by David J. Halberg, Esq.

If a doctor misdiagnoses a patient it’s a slippery slope of subsequent errors. Based on a doctor’s misdiagnosis the patient will not receive the proper care and treatment needed for their current condition. In many cases, a misdiagnosis can lead to prescriptions of medications that the patient does not actually need. In other cases, because of a doctor’s misdiagnosis a patient may not obtain the necessary subsequent care needed such as radiological studies or lab work to properly diagnose their actual condition.