Medical Malpractice

Blame for Suicide at Florida Behavior Center is Ruled a Matter of General Negligence, Not Medical Malpractice

March 22, 2023 | by David J. Halberg, Esq.

Every year, nearly 46,000 Americans die and another 1.2 million attempt to take their own lives, according to the American Foundation for Suicide Prevention. It’s not uncommon for loved ones to agonize for years about “what if” and what might be done differently – possibly blaming themselves or others for not seeing the signs or being more proactive in protecting the person from themselves. And most of the time, it’s a fruitless mental spiral because hindsight is 20/20 and of course you’d have intervened if you knew what was coming and had the power to stop it. Florida suicide lawsuit attorney Palm Beach

But what if an individual or organization was responsible for overseeing your loved one’s physical well-being and mental health and they managed to commit suicide anyway? What if red flags were missed? What if the people entrusted to care for your loved one – knowing their risk of self-harm – didn’t make absolutely sure they were safe?

In these cases, you may have grounds to sue for suicide. These third-party lawsuits assert that the doctor, hospital, or other organization owed your loved one a duty of care, breached that duty, and your loved one died as a result. As noted in a 2019 article published in FOCUS, The Journal of Lifelong Learning in Psychiatry, suicide is a top cause of liability against psychiatrists treating adult patients.

But are such cases medical malpractice or general negligence? The answer matters because, as our Palm Beach medical malpractice lawyers can explain, the proof burden and pre-suit requirements for medical negligence cases are more time-consuming, expensive, and tedious than what’s required to initiate a general negligence action. It has a shorter statute of limitations than injury cases (2 years instead of 4), though it’s the same for wrongful death cases. Also, the plaintiff is required to provide expert witness testimony at the outset of the case just to be allowed to proceed. Naturally, anyone named as a third-party defendant in a suicide liability lawsuit is going to argue the case is medical malpractice because that will make it tougher and more costly for the plaintiff.

But just because the defense says it’s medical malpractice doesn’t mean it is. Sometimes, it’s up to the courts to decide. Continue reading

What Are My Odds of Winning a Florida Medical Malpractice Lawsuit?

February 5, 2023 | by David J. Halberg, Esq.

One of the main questions our South Florida medical malpractice lawyers get from potential claimants at the outset is: “What are my odds of winning?”

It’s a prudent question to ask before getting too far ahead of yourself. The answer isn’t always straightforward – even when it’s clear a medical mistake was made and the injuries are serious.

A medical malpractice lawyer cannot guarantee you a winning outcome. That said, an attorney with extensive experience and skill can often give you a good idea of how a case is likely to go – and what legal hurdles must be overcome.

A 20-year longitudinal study of medical malpractice claims published in the journal Clinical Orthopaedics and Related Research revealed that defendant doctors prevail in 50 percent of cases where there’s strong evidence of medical negligence. This undercuts the oft-repeated (but clearly erroneous) tort reform advocate assertion that medical malpractice cases are easy wins. Further proof: That same analysis showed settlement sums directly correlated with the strength of the evidence. Basically: If your evidence is thin, you won’t get far.

This is not to say you can’t win. What it does mean is that even with strong evidence, the proof burden is high and there are likely to be significant challenges. Hiring a legal advocate with a proven track record of success is often your best shot.

Beyond that, so much depends on the specifics. Factors that can impact Florida medical malpractice case outcomes: Continue reading

Biggest Telehealth Risk? Misdiagnosis. Florida Medical Malpractice Lawyers Explain.

January 30, 2023 | by David J. Halberg, Esq.

Telehealth has been around since the early 2000s, though it didn’t gain widespread acceptance by providers or patients until the COVID-19 pandemic. Now, according to a survey by the American Medical Association, 85 percent of physicians said they are currently using telehealth, and nearly 70 percent report their organization is interested in continuing to offer it permanently. It may prove especially valuable for those managing chronic diseases, care coordination, mental health, and certain specialties. Florida medical malpractice telehealth

The benefits of telehealth are extensive (greater accessibility for those in rural areas or with mobility limitations, convenience, cost savings, etc.). But it also comes with a potentially higher rate of misdiagnosis – one of the primary catalysts for Florida medical malpractice claims.

Providers can be liable for medical malpractice if they breach the standard of care during a telehealth visit and the patient suffers harm as a result. This could be due to a negligent omission, miscommunication, misdiagnosis, software malfunctions, etc. Misdiagnosis in particular is a top concern because of the inherent challenges that come with examining a patient by way of a digital health platform versus being face-to-face in an exam room. A pre-pandemic analysis by a medical professional liability firm calculated that nearly 70 percent of telehealth medical malpractice claims were related to diagnostic issues – either missed diagnosis or misdiagnosis.

What is Telehealth?

For those who may not be familiar, telehealth is when a doctor or other health care professional provides consultations, exams, diagnoses, and treatment via phone call or video chat. It’s usually done on a secure video app and/or through secure messaging systems. Sometimes, patients may be given monitoring devices that collect certain data that aid in providing a remote examination.

Some of the ways telehealth is being increasingly used: Continue reading

Top 6 Challenges in South Florida Medical Malpractice Lawsuits

December 22, 2022 | by David J. Halberg, Esq.

A CT scan showed you had cancer, but the doctor failed to diagnose it. An OBGYN error during labor and delivery deprived a fetus of adequate oxygen during birth, leading to permanent brain damage and disabilities. Hospital staffers gave your mother the wrong dose of a powerful medication, resulting in her death. These are just a few examples of scenarios that can spur South Florida medical malpractice lawsuits.

Actually winning, though, is another matter.

In a recent analysis by NiceRx, Florida ranked No. 3 in the country over the last decade for the most reported incidents of medical malpractice. Yet it ranked 43 out of 50 for medical malpractice payout totals. The actual number of Florida medical malpractice incidents is almost certainly much higher than what’s reflected on court dockets – a direct result of Florida lawmakers’ efforts to make it inherently tougher to pursue these cases compared to other kinds of personal injury and wrongful death claims. The proof burden is higher, the filing deadlines are shorter, and there are tighter restrictions on who has standing to file and how much money can be awarded. It’s an awful shock for some families when they learn that neither a tragic outcome nor even proof of a medical mistake necessarily guarantees a successful medical malpractice claim. In fact, those truths may not even get your foot in the door of the courtroom.

Florida Supreme Court Asked to Reconsider Medical Mistake Transparency

November 28, 2022 | by David J. Halberg, Esq.

A Florida medical malpractice lawsuit could reopen a contentious debate over Amendment 7, a 2004 constitutional amendment that aims for transparency in health care by requiring providers to disclose certain medical error records. Palm Beach medical malpractice lawyer

As our Palm Beach medical malpractice lawyers can explain, the health care industry has had it out for Amendment 7 pretty much since the moment it passed by popular vote nearly two decades ago. It’s withstood several challenges, but that doesn’t mean it’s invincible – particularly with four new faces on the Florida Supreme Court since the last major ruling on it. If the state high court is persuaded by an appellate court panel to reconsider – and ultimately change – its position, it will mean plaintiffs in Florida medical malpractice cases will have a tougher time gathering pertinent information on the defendant provider’s medical mistakes.

What is Amendment 7, Florida’s Patients’ Right to Know?

Florida’s “Patients’ Right to Know” amendment (Article X, Section 25 of the Florida Constitution) gives patients the right to access medical records made or received in the course of business by a health care provider or facility relating to any adverse medical incident.

As explained by the U.S. Department of health & Human Services Office of Inspector General, an “adverse medical incident” is one in which a patient’s care results in an undesirable outcome, such as a prolonged patient stay, permanent patient harm, life-saving intervention necessity, or death. This would not be a patient succumbing to an underlying disease, but rather the result of errors, known side effects, substandard care, or complications that were unexpected but possibly unavoidable. Not every adverse medical incident is the basis for a medical malpractice lawsuit, but most medical malpractice lawsuits are the result of an adverse medical incident. Patients or surviving loved ones who are weighing legal action against a health care facility or provider may cite this amendment when requesting relevant incident reports and other records.

Obviously, health care facilities and insurers were opposed to this from the beginning, but state constitutional amendments are tough to change. Recently though, the First District Court of Appeal ruled 2-1 against a medical malpractice plaintiff who sought relevant records under Amendment 7. The appellate panel majority then took it a step further and implored the Florida Supreme Court to reconsider the 2005 amendment, saying:

Years of court decisions on the issue have resulted in expanding Amendment 7 beyond what voters intended, in turn “radically transforming” medical malpractice litigation ion Florida.
Adverse medical records created for submission to a peer review organization under the federal Patient Safety and Quality Improvement Act (PSQIA) should be shielded from mandated disclosures under Amendment 7.

For context, the PSQIA was passed in 2005 – just one year after Amendment 7 – with the goal of improving patient safety and care quality with the creation of a voluntary, confidential, and non-punitive system through which health care providers could freely report medical mistakes and near-misses. The idea was that by facilitating a free flow of information – unincumbered by legal risks – health care facilities and researchers would be able to more accurately scrutinize problematic trends and policies. The ultimate goal is minimizing medical risk to patients. The PSQIA shields health care providers who voluntarily collect data on medical mistakes for the purpose of turning it over to this federal program by classifying those records as “privileged.” They are labeled as “patient safety work product,” and protected from public disclosure.

Is There a Conflict With Federal Law?

The Four D’s of Florida Medical Malpractice Lawsuits

October 23, 2022 | by David J. Halberg, Esq.

Florida medical malpractice lawsuits are filed when patients harmed by poor quality medical care deviates from the prevailing standards for their practice, specialty, and region. F.S. 766.102 explains that plaintiffs in Florida medical malpractice cases bear the burden of proof to establish by the greater weight of evidence that the health care provider represented a breach of the prevailing standard of care for that health care provider. Florida medical malpractice lawyer

As experienced Palm Beach medical malpractice lawyers, we understand these cases are among the more complex torts one can pursue in Florida. Plaintiffs in medical malpractice claims:

Have a higher burden of proof.
Must present expert witness testimony from a similarly situated health care provider as the defendant.
Bring their claims in a shorter amount of time (2 years) than most other injury claimants (4 years).

To help current and potential clients better understand some of the legal complexities of these cases, we break it down by what we call “the four D’s” of Florida medical negligence. These are:

Duty.
Duty Breach.
Direct Cause.
Damages.

Let’s break them down one-by-one. Continue reading

South Florida Medical Malpractice Lawsuit Against Eye Doctor Revived

October 15, 2022 | by David J. Halberg, Esq.

A South Florida medical malpractice lawsuit against an eye doctor has been revived by Florida’s 2nd District Court of Appeal. Palm Beach eye doctor malpractice lawyer

Although ophthalmologists aren’t the most commonly-named defendants in Florida medical malpractice cases, eye doctor malpractice can result in serious, disabling injuries. Those impacted can seek financial compensation.

Examples of Florida eye doctor malpractice that can lead to substantial patient injuries (and would be grounds for civil litigation):

Not completing and reviewing the patient’s full medical history.
Failure to properly conduct an eye exam.
Misdiagnosing an eye condition or missing an eye problem entirely.
Careless errors during eye surgery.
Using tools that aren’t properly cleaned and sterilized, resulting in preventable infections.
Failure to seek and obtain adequate informed consent from patients.
Prescribing a patient the wrong medication or improper dosage.

In the recent Florida eye doctor medical malpractice lawsuit of Martinez v. Perez Ortiz, the complainant alleges the ophthalmologist misdiagnosed her condition and failed to properly treat it in a timely manner, resulting in permanent eye damage and vision problems.

Specifically according to court documents, the plaintiff underwent surgery for nasal polyps. After the procedure, she complained to the doctor about swelling and pressure behind and around one eye. The issue wasn’t properly identified or treated. Now, she’s seeking recompense for the harm done.

Importance of Expert Testimony in Florida Medical Malpractice Cases

As our Palm Beach medical malpractice lawyers can explain, the testimony of an expert medical witness is key to even getting these cases off the ground. Continue reading

South Florida Medical Malpractice Claims for “Never Events” Can Yield High Damage Awards

September 30, 2022 | by David J. Halberg, Esq.

Any health care provider will tell you that with every procedure, treatment, or medication, there may be a modicum of risk. Poor medical outcomes aren’t always the basis for a South Florida medical malpractice lawsuit. However, grounds for such claims may be strong when the incident in question involves a so-called “never event.” Palm Beach medical malpractice lawyer

As our West Palm Beach medical malpractice lawyers can explain, the non-profit patient protection organization the National Quality Forum describes never events as mistakes in medical care that are clearly:

Identifiable.
Preventable.
Serious in their consequences for patients.
Indicate a major problem in the safety and credibility of the health care facility.

Not all Florida medical malpractice lawsuits stem from never events, but most never events likely amount to medical malpractice.

The NFQ has a long list of all the various incidents that are generally understood as never events. Some of the most common include:

Surgery on the wrong body part.
Foreign body left in a patient after surgery.
Severe pressure ulcer that’s acquired in a hospital.
Preventable post-operative deaths.

They’re called never events because, very simply, they should never happen. And yet, they still do.

$900k FL Medical Malpractice Verdict for Spinal Surgery Never Event

Recently, the Miami Herald reported on a lawsuit stemming from a never-event at a hospital in Fort Lauderdale. The tone of the headline, “Miami jury said a screw was worth $902,000…” seemed to indicate the damage award was somehow excessive. But as Florida medical malpractice attorneys can explain, it likely had to do with the fact that it involved a never event: Leaving a foreign body in a patient after surgery. Continue reading

Florida Medical Malpractice Ruling: Hospital Liability May Rest on Degree of Control

September 2, 2022 | by David J. Halberg, Esq.

One of the complicating factors in South Florida medical malpractice cases stemming from negligence in hospitals is that very often, the doctors are not direct employees of the hospital. Florida medical malpractice lawyer

Why does this matter? Because in Florida, employers can be held vicariously liable for the negligent actions of their employees. That means one does not need to prove the employer directly engaged in wrongdoing, so long as one can show the negligent employee was acting in the course and scope of employment at the time of the incident. When doctors are classified as independent contractors – separate from the hospital – it means additional proof of direct negligence by the hospital is required in order to prevail in a case against them.

However, a recent South Florida appellate ruling on a medical malpractice lawsuit may broaden the circumstances under which a hospital may be held vicariously liable for the negligent actions of doctors providing care at the medical facility. Justices in Florida’s 1st District Court of Appeal in Gradia v. Baptist Hospital reversed the trial court’s ruling clearing the hospital of vicarious liability in a medical malpractice case.

Surgeon Faces Hundreds of Florida Medical Malpractice Lawsuits

August 15, 2022 | by David J. Halberg, Esq.

A surgeon and the hospital where he worked are facing hundreds of Florida medical malpractice lawsuits alleging life-altering injuries to patients, who allege the doctor’s 2020 retirement due to a progressive neurological disorder came about four years too late. Florida medical malpractice surgery

By then, complaints of the doctor’s shaking hands, slurring speech, unsteady gait, mood swings, involuntary body twitches, and impaired judgment were well-established – both by patients and the doctor’s colleagues. But they were first documented back in 2016. Plaintiffs in the 348 Florida medical malpractice lawsuits filed so far allege the hospital should have intervened much sooner.

As West Palm Beach medical malpractice attorneys, we recognize that in many of these cases, liability often goes beyond the health care provider themselves.

Plaintiffs say the hospital not only should have known about the issue, but had actual knowledge. Specifically, numerous doctors, nurses, and patients specifically told the hospital – on numerous occasions – that they were concerned about the doctor’s condition and seeming impairment. In one instance, he was reportedly seen having difficulty keeping his eyes open during a surgery. In other instances, colleagues were allegedly having to prompt him during surgeries about what needed to be done. Instead of intervening, the hospital allegedly allowed the doctor to continue to become recredentialed and practice, but to schedule high-volume, high-risk surgeries – raking in millions in profit for the hospital.

The doctor resigned from the hospital voluntarily in 2020, shortly after being diagnosed with progressive supranuclear palsy, a rare brain condition adversely impacting neurological function and motor coordination. A year later, he forfeited his Florida medical license amid an investigation by the state board. We don’t know what official complaint specifically led to the Florida Board of Medicine’s intervention, but we know they have been piling up since then. Continue reading