Articles Posted in Medical Malpractice

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A bipartisan-supported state bill that would have allowed non-economic damage claims in Florida medical malpractice wrongful death cases to be brought by the parents of unmarried, childless adult children over age 25 has failed in the Senate Rules Committee.Florida medical malpractice wrongful death

The outcome was disappointing, but predictable, given the strength of the health care and insurance lobbies here in the Sunshine State. In effect, there will continue to be cases of Florida medical malpractice wrongful deaths for which there is no legal remedy – simply because the decedent had no spouse or minor children under the age of 25.

Proponents of HB 6011 say it would have closed the “free kill” loophole of Florida medical malpractice law. Specifically, the way the law is currently written, it limits financial recovery in medical malpractice wrongful death cases so that the only people who can sue are the decedent’s surviving spouse and/or children under 25. Backers of HB 6011 have argued that this oversight effectively creates an incentive for physicians to allow some patients to die, rather than save them. Specifically, if an unmarried adult patient with no under-25 kids survives injury or illness resulting from medical malpractice, they can sue the doctor in their own right. But if that patient dies, there would be no survivors under Florida law who could bring that claim. This is what patient advocates have been referring to as a “free kill.”

It’s certainly in stark contrast to general negligence wrongful death claims, wherein there is a broader net cast for who has the right to sue.

When a person’s death is the result of a wrongful act, negligence, or breach of contract, Florida law allows family members or the estate to bring claims for lost wages, benefits, and other earnings. Family members may also sue for support and services the deceased can no longer provide, as well as for the loss of guidance and companionship. The law also allows compensation for mental and emotional suffering (non-economic damages). Those who can pursue such claims include:

  • A surviving spouse.
  • A child 25 years or younger.
  • A child 25 years or older, if there is no surviving spouse.
  • Parents of a deceased child over the age of 25 with no surviving spouse or children.

But Florida treats medical malpractice wrongful death claims differently. Continue reading

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The parameters of qualified medical experts in Florida medical malpractice lawsuits will be weighed by the Florida Supreme Court. Justices recently allowed the Florida Medical Association, American Medical Association, and Hospital Medical Association to file briefs in the case supporting the hospital defendant. medical malpractice lawyer Palm Beach

As our Palm Beach medical malpractice lawyers can explain, the court’s ruling on this issue could have far-reaching implications because it will determine the criteria for doctors who provide expert opinions, which are required at the very outset of every Florida medical malpractice lawsuit.

The case, University of Florida and Shands Hospital v. Carmondy, involves a plaintiff who filed a medical malpractice lawsuit due to an infection she suffered after undergoing cervical disc fusion surgery in 2016. Her negligence claims were against a neurosurgeon and an advanced registered nurse practitioner. Her petition included affidavits from a physician who practiced internal medicine and cardiology, and who previously had worked as a hospital specialist.

These cases cannot move past the initial phase unless the plaintiff submits affidavits from a doctor or doctors who are experts on par with the defendant who are of the opinion that the defendant breached the accepted standard of care for their profession. An accepted standard of care is not a simple question to answer. Much depends not only on the education, training, and specialty of that medical professional, but also what type of facility they practiced in and in what region. A highly specialized neurosurgeon working in a top hospital in an urban city with ample resources will be held to a different standard than someone of the same educational and training background, but with fewer resources. Continue reading

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Liability for Florida amputation injuries may be imputed to negligent doctor/hospital (medical malpractice), property owner who failed to correct an unsafe condition (premises liability), careless motor vehicle driver (auto accident claim), or product manufacturer/distributor who designed/manufactured/sold a defective product (product liability). There could be other liable parties too, depending on the facts of the case. Given the severity of amputation injuries and the extent to which one can impact the rest of your life, it’s imperative to discuss your legal options with an experienced Palm Beach injury lawyer to determine whether you may have grounds for a South Florida injury lawsuit.Florida amputation injury lawyer

Recently, a doctor and urgent care center were ordered to pay $7.6 million in a medical malpractice lawsuit for Florida amputation injuries suffered by a patient whose bacterial infection was initially misdiagnosed as an ankle sprain. According to the Pensacola News Journal, the case involved a retired firefighter, whose right leg had to be amputated after a medical mistake. Specifically, the patient’s leg became infected after he was exposed to contaminated water in the Pensacola Bay. The leg began to ache and turned blue. When the pain worsened, he went to the urgent care center. Blisters began to develop as he waited in the lobby. Despite these symptoms, he was diagnosed with a sprained ankle, given crutches, and instructed to ice and elevate the leg. The following day, the man saw a podiatrist, who immediately recognized what was happening, and correctly diagnosed the patient as battling an aggressive bacterial infection. He was rushed to the hospital and treated with powerful antibiotics. However, by then it was too late, and the leg had to be amputated to save the patient’s life. The urgent care facility and employee doctor denied liability. However, following an eight-day civil trial, jurors awarded plaintiff $6.8 million and his wife $787,000.

Florida Amputation Injury Cases are High Stakes

Amputation is when any piece of limb of the body is severed. They can be part of planned surgeries, but they may also be the result of an accident or medical mistake.

Losing fingers or toes, while seemingly minor, can be traumatic, resulting in unique challenges for the tasks of everyday life. When someone suffers the partial or total loss of a limb, the consequences can be profound. Continue reading

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Is a claim involving a Florida hospital fall one of negligence – or medical malpractice? Florida medical malpractice lawyer

Our West Palm Beach medical malpractice lawyers recognize this as an important distinction because on the one hand, negligence cases have a four-year statute of limitations and a lower proof burden. Most medical malpractice claims, on the other hand, have a two-year statute of limitations and require expert witness testimony at the outset. These elements can make a major difference in whether a claim survives initial hurdles necessary to overcome summary judgment or outright dismissal. Failure at the outset of the case to correctly determine which category the claim falls into can result in its being tossed on procedural grounds before it really gets started, as opposed to being decided on its merits.

That’s precisely what happened in Gorham v. Martin Memorial Health System, a recent case before Florida’s 4th District Court of Appeal.

According to court records, the case involves an elderly woman who died of a fall while she was a patient at a hospital in Martin County, FL. Her adult children brought her to the facility because she was ill. When she arrived at the hospital, she brought her walker, a walking frame device that provides additional support to maintain balance or stability while walking. It’s a common mobility device for the elderly. The complaint indicates hospital staffers refused to allow her to use her own walker. On more than one occasion, she and her children told the nursing staff that she needed a walker for mobility purposes. Yet time and again, she was told either that one would be provided or that it would be “taken care of.” One nurse also assured her children that if she tried to get off the bed, an alarm would sound, summoning care staff.

The night after she was first admitted, the patient fell while attempting to get out of bed to use the restroom. Nursing staff contacted her daughter, informing her of the fall and telling them she had suffered a “slight fracture.”

Several weeks later, an orthopedic surgeon discovered the patient had actually sustained three serious fractures to her pelvis. Shortly thereafter, plaintiff died. Her family, as representatives of her estate, filed a subsequent claim alleging the injuries sustained from her fall were a substantial cause of her death.

Pre-Suit Requirements for Florida Medical Malpractice Claims

Florida law – specifically F.S. 766.104(1) – holds that no action should be filed for personal injury or wrongful death arising out of medical negligence unless the plaintiff’s attorney makes a reasonable investigation (circumstances permitting) and determines there is grounds for a good faith belief of negligent treatment. Continue reading

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As longtime South Florida medical malpractice attorneys, one of the most heartbreaking things over the years has been telling parents of adult patients – and adult children of unmarried patients – that they have no legal recourse after their loved one has died due to medical negligence. That’s because the Florida’s medical malpractice and wrongful death laws protect negligent doctors and insurers at the expense of trusting patients and bereaved families. State law specifies that if an adult over the age of 25 dies as a result of medical practice and they did not have a surviving spouse or minor children (under the age of 25), no other family member can recover damages for pain and suffering. West Palm Beach medical malpractice lawyer

Put another way: If an adult over the age of 25 dies of medical malpractice in Florida, the only people allowed to pursue a legal claim would be a surviving spouse and/or minor children (under 25).

Unfortunately, most people don’t learn about this until after their loved one has died. Some scenarios that have resulted:

  • The mother and longtime girlfriend of a 51-year-old man who died following mistakes during an open heart operation could not find an attorney to take their case.
  • The three adult children of a 59-year-old divorced woman who died following a botched bowel surgery learned they had no legal claim.
  • The parents of a 34-year-old unmarried woman with no children had no recourse when doctors failed to diagnose breast cancer until it had advanced to the final stages, leading to her early death.

Florida is the only state in the country with such a law. Not only that, but we have a sizable population of widowed seniors, unmarried college students, and middle-aged single and divorce people whose kids are over 25 or who don’t have any kids at all. If they died in a car accident or because of a dangerous condition on someone else’s property, their loved ones could pursue damages for pain and suffering. But if they die as a result of medical malpractice, their loved ones are left with no means to hold accountable negligent doctors, surgeons, nurses, and hospitals.

“No one should be valued less just because they are unmarried, over the age of 25, or have grown children,” said West Palm Beach medical malpractice lawyer David Halberg. Continue reading

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As experienced Palm Beach medical malpractice lawyers, we’re closely familiar with the 2004 Florida law passed overwhelmingly by voters with the intention of preventing dangerous doctors from practicing medicine. It’s a “three strikes” rule for medical malpractice that seems fairly straightforward: A doctor with three “strikes” of medical malpractice will lose their license to practice. Unfortunately, we know all-too-well how ineffective it is, thanks to follow-up efforts by the state legislature, which made it nearly impossible for the state board to actually levy a strike. Palm Beach medical malpractice lawyer

The “Three Strikes Rule” was passed as an amendment to Chapters 458 and 459 of Florida Statutes. The law holds that if a physician has three or more incidents of medical malpractice (as established by a standard of clear and convincing evidence), they will be forbidden from the continued practice of medicine in Florida. A “strike” can be derived from a finding of medical malpractice by one of the following:

  • A final order by an administrative agency following a hearing.
  • A final order by a judge/jury in a civil case.
  • A binding arbitration decision.

It should be noted that medical malpractice isn’t as easy to prove as the typical negligence case. It’s not enough to show the absence of ordinary care. Rather, one must prove – via expert witness testimony from a similarly-situated professional – that the physician failed to abide the applicable standard of care, which depends on that doctor’s education, skill, specialty, and resources. But even with this higher standard and even with the three strikes law, doctors with checkered professional histories continue to practice.

Numerous journalistic deep-dives and scholarly studies in recent years – from NBC-5 in West Palm Beach to The Palm Beach Post – have highlighted this legal loophole. Yet as our medical malpractice lawyers can attest, the problem persists, with Florida doctors who’ve paid out 3+ medical malpractice claims continuing to practice, often with patients none-the-wiser. News outlets have reported there are hundreds of still-practicing doctors who have collectively paid out hundreds of millions of dollars in Florida medical malpractice lawsuits stemming from the deaths of more than 1,000 patients over 10 years. Continue reading

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Punitive damage awards – which can potentially triple the monetary damages to which you are entitled in an injury lawsuit – are notoriously tough to obtain in Florida medical malpractice cases. Even getting judicial approval to request them requires proof of gross negligence and/or intentional misconduct – rare in any medical negligence case. The West Palm Beach medical malpractice attorney you hire should be able to tell you whether it’s at all a possibility after a careful assessment of the facts of your case.West Palm Beach medical malpractice attorney

There are two basic types of damages you can seek in a Florida injury case: Compensatory and punitive.

Compensatory damages are paid to compensate someone for specific losses, injuries or detriments. There are actual (aka “special”) compensatory damages (medical bills, lost wages, transportation, rehabilitation, property replacement, etc.) as well as general compensatory damages (pain and suffering, emotional distress, loss of consortium, loss of life enjoyment, etc.).

Punitive damages, meanwhile, are intended to punish the defendant for egregious negligence or intentional wrongdoing and/or to serve as a deterrent. It is paid to you, but the driving factor is the outrageousness of the defendant’s wrongful conduct. Punitive damages are capped in Florida to be either three times the amount of the compensatory damages OR $500,000, whichever is greater.

Medical malpractice claims in Florida are tougher than the average tort case as it is because it’s not enough to show the health care provider simply failed to use reasonable care (the standard for typical negligence claims). What must be established – by expert witness testimony of a similarly-situated medical professional – is that the health care provider failed to follow the applicable standard of care for their specialty, region, and circumstances. Doing so would entitle the claimant to collect compensatory damages for their injuries.

But punitive damages would only be allowed, per F.S. 768.72, if there was proof the health care provider in question engaged in intentional misconduct or gross negligence. Continue reading

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Delay in timely treatment and/or diagnosis that results in patient harm can be legal grounds to pursue a Florida medical malpractice claim against a healthcare provider. As our Palm Beach medical malpractice attorneys can explain, building cases like these requires using expert witness testimony to establish that the defendant health care providers failed under the circumstances to abide the applicable standard of care for their medical specialty.Palm Beach medical malpractice lawyer

Recently, a Florida jury awarded $2.6 million to the family of a man who died of a stroke – an occurrence the jury found was preventable had he been properly treated by the physicians and hospital.

As reported by Law.com, the 62-year-old decedent was seen by a vascular surgeon in the early summer of 2016. This was on the recommendation from his primary care doctor, who believed the patient’s carotid arteries (which supply blood to the brain, neck, and face) were “occluded,” or blocked. Upon examination, the surgeon diagnosed the patient with severe atherosclerosis. The man’s carotid arteries were 90 percent blocked. The surgeon recommended a procedure called an endarterectomy to remove the buildup. But it wasn’t necessary to act right away, the surgeon said, because the man had no symptoms. Instead, the procedure was scheduled for 18 days later. If the patient did become symptomatic, he was to go immediately to a hospital.

One week before the scheduled procedure, the patient became dizzy and weak. He rushed to a local hospital and was promptly admitted. The hospital contacted the office of the vascular surgeon, who was on vacation. Ultimately, they did obtain records of the scheduled surgery from the vascular surgeon’s office. Two other surgeons did not come to treat the patient immediately, but they did bump up the surgery to the following morning. However, the patient deteriorated overnight. He fatal stroke hours before the scheduled surgery.

The man’s widow, as representative of his estate, filed a Florida medical malpractice lawsuit against the first vascular surgeon, his practice, and the hospital. Continue reading

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Since 1988, parents of children who suffered a specific type of Florida birth injury – profound brain damage caused by oxygen deprivation or spinal impairment – could file no-fault claims with the Birth-Related Neurological Injury Compensation Association, or NICA. Such conditions occur at birth, impact the child for life, and are frequently the result of medical malpractice.West Palm Beach birth injury lawyer

Obstetricians had lobbied the state for a program like this decades ago arguing high insurance premiums would push them out of the state. The program might have seemed a win-win – had parents not been forced to fight for coverage of every expense. While parents were prevented from suing doctors, hospitals, and other health care providers for injuries caused by their negligence during labor and delivery, they were promised adequate coverage for expenses that were both necessary medically and reasonable. That’s not what they received, many now say.

Earlier this year, The Miami Herald teamed up with ProPublica to analyze the issue, finding that NICA, despite amassing billions in assets from doctors’ annual fees, often left families begging for assistance. As our West Palm Beach medical malpractice attorneys have learned, those findings have since been affirmed by at least two state investigations (the auditor general and Office of Insurance Regulation). Soon thereafter, state lawmakers passed a reform bill unanimously, upping parental damage awards to $250,000 (more than double what it was) and child death benefits to $50,000 – five times what it used to be. These benefits are retroactive. Another $100,000 per family has been allocated for guaranteed transport and home modifications.

The law also pledged to make the best interests of the child Priority No. 1. Also for the first time, a parent advocate and an advocate for disabled children were added to NICA;s board. There’s also now an ombudsman who will work directly with parents. The previous executive director of the agency resigned, and a new interim ED has been assigned.

Parents say they are still hoping lawmakers will approve increased benefits for those who set aside their careers to remain at home and become caregivers for their severely disabled children. Continue reading

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Many people considering a Florida medical malpractice claim envision dramatic courtroom scenes of emotional testimony under a relentless media spotlight. The reality is the vast majority of these claims never even make it to a trial.West Palm Beach medical malpractice lawyer

Medical malpractice claims that prevail beyond the early stages of summary judgment motions will most likely be settled during negotiations between your attorney and insurers for the doctors, hospital, or other health care providers involved. It is imperative that you are working with a dedicated West Palm Beach medical malpractice attorney with extensive experience in insurer negotiations.

Here are some key things to know about South Florida medical malpractice settlement negotiations.

Florida Medical Malpractice Law

Medical malpractice claims in Florida are a unique type of personal injury case. State law requires attorneys to investigate these claims carefully before pursuing them. We must acquire expert witness testimony to assert the standard of care was breached by the health care professional, and we have to provide ample notice to the defendants of the claim.

Whereas most Florida personal injury cases have a four-year statute of limitations in which to file a claim, the time window for medical malpractice claims is just two years. Depending on whether there is a government defendant involved, notice requirements may be even shorter than that. There are very few exceptions, so it’s important to act quickly if you have the slightest inkling you may have a claim. Continue reading

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