Medical Malpractice

Expert Witness Testimony is Essential in Florida Medical Malpractice Claims

September 20, 2021 | by David J. Halberg, Esq.

Expert medical testimony is crucial in any Florida medical malpractice claim – for both sides. It’s required to even move past the early stages of a case (by presenting sufficient evidence the defendant breached the applicable standard of care for their profession and position). It’s also critical in helping jurors determine whether that standard was breached and if so, whether that breach caused the medical injury. Special medical knowledge is pivotal. Palm Beach medical malpractice lawyer

Per F.S. 766.202, a medical expert is defined as a person who is duly and regularly engaged in the practice of his/her profession AND holds a health care professional degree AND who meets the requirements set forth in F.S. 766.102. That provision holds (among other things) that the expert witness in a medical malpractice case must be able to speak to the prevailing standard of care that a reasonably prudent health care provider in the same or similar situation would abide. In order to do that, they need to conduct a complete review of the pertinent medical records, but they also need to be someone who specializes in the same specialty as the health care provider defendant. (For example, a general practitioner wouldn’t likely be able to attest to the purported negligence of an anesthesiologist.)

As our Palm Beach medical malpractice attorneys can explain, the fact that a plaintiff’s expert medical testimony is so important has increasingly made it a target for defense requests to exclude it. The standard for admissibility of expert witness testimony is called the Daubert standard, after the 1993 U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals. Florida previously used the less-rigorous Frye standard, but adopted the Daubert standard in 2019. Continue reading

When Florida Anesthesiologists Make a Mistake

June 2, 2021 | by David J. Halberg, Esq.

Two recent Florida medical malpractice involving anesthesiologists have made national headlines, shining a spotlight on incidents involving these highly-trained medical professionals. anesthesiology error

Physician anesthesiologists are responsible to evaluate, monitor, and supervise patient care during and after surgery. They are tasked with delivery anesthesia, which is medication that helps with care, pain management and critical care medicine. There’s general anesthesia, where a patient is made to be completely unconscious. Then there’s regional anesthesia, where only part of someone’s body is anesthetized (such as in an epidural/spinal block). Lastly, there is local anesthesia, in which numbing medication is only applied to a small part of the body. Anesthesiology is not a field that leaves much room for error.

Anesthesia error can lead to serious, lifelong injuries or even deaths. Mistakes such as too much anesthesia, too little anesthesia, the wrong type of anesthesia, or failure to properly monitor a patient before, during, or after anesthesia is administered can be the basis for a South Florida medical malpractice claim that may hold the hospital, surgery center, anesthesiologist or other medical staffers accountable. Continue reading

No Financial Bias Exception to Dangerous Medical Device Warning Failure, Court Rules

May 5, 2021 | by David J. Halberg, Esq.

When it comes to the dangers of medical devices or medications, the learned intermediary doctrine holds manufacturers responsible to describe the known risks to doctors, who in turn interpret those risks to patients. Patients then rely on the interpretations of their physicians to make informed medical choices. One effect of this, however, is that the manufacturer’s duty to warn of possible danger is to the physician who provides the medication, conducts the surgery or oversees treatment – not to the general public. drug and medical device litigation Florida

But what if the doctor in question is receiving some sort of financial benefit from the manufacturer for prescribing or using a particular drug or device?

Recently, the U.S. Court of Appeals for the Eleventh Circuit weighed a request by plaintiffs to create a “financial bias exception” to the intermediary rule in a Florida product liability lawsuit stemming from a vaginal mesh injury. However, finding no such precedent or even discussion of it in previous decisions, the court declined to do so. Continue reading

Pregnant in a Car Accident? South Florida Injury Lawyers Offer Insight.

March 23, 2021 | by David J. Halberg, Esq.

Any car accident can be traumatic and stressful. But when you are pregnant, all of this is compounded two-fold. The U.S. Centers for Disease Control & Prevention reports that car accidents are a top cause of injury and death for pregnant women and a leading cause of traumatic fetal death. pregnant car accident Florida

As our West Palm Beach car accident attorneys can explain, crashes can present unique and scary complications for both mother and child. Knowing some of these unique risks and what should be done immediately after can help empower victims and increase your chances for fair compensation from negligent drivers.

See a Doctor – Even if You Feel Fine

First thing’s first: If you’re in a crash, get to the doctor right away, even if you aren’t transported to a hospital via ambulance. This is a critical precautionary measure for both you and your unborn child. Continue reading

Florida Medical Malpractice Claim Requirements Can be Impacted by a Defendant’s Federal Status

March 15, 2021 | by David J. Halberg, Esq.

West Palm Beach medical malpractice lawyer The statute of limitations on Florida medical malpractice claims is two years from the date of the incident/cause of action. However, it’s important to have an experienced medical malpractice attorney review your claim much sooner than that deadline if possible. There are several good reasons for this, not the least of which is because the (not-always-obvious) federal status of some defendants could mean there are additional considerations that will require more time to prepare the case. There could also be shorter administrative deadlines.

Ensuring your case is not only timely and properly filed but in the correct venue is critical.

This was one of the matters at issue in the case of P.W. v. U.S., recently before the U.S. Court of Appeals for the Seventh Circuit. Continue reading

Florida Arbitration Agreements Increasingly Common in Health Care

January 21, 2021 | by David J. Halberg, Esq.

Doctors, nurses and other healthcare providers in Florida have a professional and legal responsibility to provide care to patients according to the prevailing standard for their education, experience and position. When they fail to do so resulting in patient harm, they can be held accountable with a Florida medical malpractice claim. Verdicts and settlements are typically paid out by insurers. West Palm Beach medical malpractice lawyer

But in recent years, our West Palm Beach injury lawyers have noted a troubling trend of doctors and health care companies compelling patients to sign binding arbitration agreements before they receive care. Patients are given forms to sign away their constitutional right to have complaints of substandard care weighed in a court of law. If they decline, they are told to look for another provider.

It should be noted if you’re harmed as a result of substandard care, these agreements may not be enforceable, thanks to a 2016 Florida Supreme Court case. You should consult with an experienced medical malpractice law firm before deciding how to proceed. Continue reading

Filing a Birth Injury Lawsuit in South Florida

September 15, 2020 | by David J. Halberg, Esq.

For every 1,000 children born in the U.S., 1.9 suffer some type of birth injury, also referred to as birth trauma. The good news is this rate has fallen from about 2.6 for every 1,000 births since 2004, as the use of instruments like forceps and vacuums have become less common. filing a birth injury lawsuit

But if your child is one of those who has suffered some type of birth trauma, it’s important to talk with an attorney about filing a birth injury lawsuit. A baby who sustains injuries at birth can suffer lifelong consequences to one’s physical, cognitive, psychological and social development. If the cause was medical negligence, the child and his/her caregivers will need additional treatment (therapies, surgeries, special education, etc.) and other support.

Birth injury lawsuits are a type of legal action taken against the doctors, nurses or other medical professionals who may have been responsible for the child’s injuries, which can include conditions like:

Cerebral palsy
Erb’s palsy
Brachial palsy
Shoulder dystocia
Bruising or forceps marks
Fractures
Subconjunctival hemorrhage
Brain damage
Other nerve injuries
Wrongful death

What to Know When Filing a Florida Plastic Surgery Medical Malpractice Lawsuit

February 7, 2020 | by David J. Halberg, Esq.

A South Florida plastic surgeon facing a medical malpractice lawsuit in the 2016 death of one patient is now facing a new allegation of malpractice after another patient said a breast lift and tummy tuck left her scarred for life. NBC-6 Miami reports the second patient survived, but only after emergency surgery and multiple skin grafts. Doctors at the hospital told her if she had waited another day to have her wounds treated, she would have died. plastic surgery medical malpractice

The Florida Department of Health alleges the surgeon involved breached the standard of medical care expected of him by:

Failing to obtain a complete and comprehensive physical examination of the patient;
Failing to obtain a complete medical history of the patient;
Failing to see or contact the patient within 24 to 48 hours after surgery.

The surgeon does not agree with the allegations, and plans to fight them in court. He was already facing allegations of medical malpractice wrongful death involving a patient who died in 2016 while under his care at a now-closed Hialeah clinic.

When Plastic Surgeons Can Be Held Liable for Damage

Plastic surgery, also sometimes referred to as cosmetic surgery, are generally elective procedures undergone by those who wish to improve their personal appearance. In some cases, they are necessary to correct the after-effects of a serious accident or illness.

Plastic surgery is a field that is attractive to many physicians because it is so lucrative, particularly in high-income areas. However, as our West Palm Beach medical malpractice attorneys have seen, a doctor who does not have the proper knowledge, training, experience, staff or equipment to safely perform plastic surgery can cause serious harm. Continue reading

Military Families Can Now Sue for Medical Malpractice

January 6, 2020 | by David J. Halberg, Esq.

Active duty military members now have the right to sue for medical malpractice injuries after a December vote by Congress to enact a new provision to the National Defense Authorization Act. South Florida medical malpractice lawyer

As our South Florida medical malpractice attorneys can explain, long-held legal precedent has been that service members are prohibited from suing the Armed Forces for negligence during active duty that resulted in injury. This principle has come to be called “the Feres Doctrine,” after a watershed 1950 U.S. Supreme Court ruling in Feres v. U.S. It’s been used to toss dozens of cases of serious medical malpractice injury suffered by service members – or discourage them from filing any claim altogether.

The soldier for whom the doctrine is named was a highly-decorated WWII veteran who parachuted into Normandy during D-Day. He prevailed through some of the worst fighting of the war – but died in barracks fire while on base in the U.S. His widow filed a negligence lawsuit against the Army under the Federal Tort Claims Act for its negligence in causing the fire (unsafe due to faulty heating system). The ruling that resulted denied her – and countless other active-duty soldiers and surviving family members – from holding the U.S. government accountable for negligence that occurred during active duty. Continue reading

Florida Supreme Court to Weigh Hospital Liability of Independent Contractor Doctors

December 5, 2019 | by David J. Halberg, Esq.

The Florida Supreme Court has agreed to decide whether a hospital can be held accountable for the negligent treatment by independent-contractor emergency room doctors. Our West Palm Beach medical malpractice lawyers will be closely following the developments of this case, and a decision is likely to be handed down sometime next year.

The case stems from a botched plastic surgery provided at an unlicensed clinic by a man posing as a Venezuelan doctor. The clinic was licensed to give massages, but advertised the services of certified plastic surgeons (which it did not have) to perform buttocks-enhancement injections. A 28-year-old woman was rushed to a local emergency room after suffering complications from the procedure in 2013. She was treated at the hospital’s emergency room and in the intensive care unit, but died within hours. The “doctor” was later arrested and the clinic shuttered, but her estate filed a lawsuit against both the hospital and emergency room doctors for negligence.

The hospital insists it cannot be held liable for treatment provided by the emergency room doctors, as they were independent contractors. Florida’s Third District Court of Appeal agreed in a ruling earlier this year. However, this ruling conflicts with one by Florida’s Fourth District Court of Appeals in a similar case.

The Florida Supreme Court has agreed to review the conflict, but has yet to set a date for oral arguments. Continue reading