Medical Malpractice

“Can I Sue for Midwife Malpractice in Florida?”

November 16, 2019 | by David J. Halberg, Esq.

GateHouse Media recently reported on the trend of more expectant mothers deciding to give birth outside of a hospital, with labor and delivery overseen with a midwife or doula. Many mothers who choose this route say it is a rejection of the sterile and sometimes impersonal experience of a hospital maternity ward, with through-the-roof cesarean section rates, over-prescribed cocktails of powerful pain medications and a hangover of hospital bills. midwife malpractice

But birth outside of a hospital setting has its own costs. GateHouse reports that just in Sarasota County, 1 in 3 home and birth center deliveries ended at a local hospital. Doctors and paramedics say often by the time they are transferred to a hospital, the women have been in labor for three or four days. They’re scared, exhausted, fevered and have higher rates of infection.

Although midwives and birthing centers point to the many successful deliveries they’ve overseen, the problem is that labor in itself is known to be incredibly risky. When something goes wrong, midwives and birthing centers may be unprepared to handle it. Continue reading

Florida Supreme Court Asked to Revisit Medical Malpractice “Crisis,” Constitutional Challenges

October 18, 2019 | by David J. Halberg, Esq.

A state appellate court has urged the Florida Supreme Court to revisit whether a largely-debunked medical malpractice insurance “crisis” still justifies limiting damages in certain medical malpractice wrongful death lawsuits. The request, posed as a question of great public importance, stems from the Fla. 2nd DCA’s reluctant dismissal of a medical malpractice wrongful death lawsuit filed by the adult children of a woman who died after a missed diagnosis of lung cancer. Naples medical malpractice lawyer

The case raises constitutional equal protection concerns because the practical effect is that negligent doctors and healthcare providers cannot be held to account if their patient dies with no minor children or surviving spouse. Adult children (over age 25) of medical malpractice victims who die are not entitled to collect non-economic damages. (Non-economic damages are monetary compensation for intangible losses like as pain and suffering, loss of life enjoyment, loss of consortium, etc.)

This all started some 30 years ago, when Florida lawmakers, heavily courted by insurance industry lobbyists, enacted Florida State Statute 768.21 as a means of remedying “skyrocketing insurance costs” that were reportedly causing doctors to decline performing high-risk procedures and flee the state and the profession, forcing the closure of emergency rooms and other healthcare facilities. In 2000, the Florida Supreme Court cited this law – and the purported “crisis” legislators had used to rationalize it – to prevent the surviving adult children plaintiffs in Mizrahi v. North Miami Medical Center from recovering non-economic damages for their parent’s medical malpractice death. Continue reading

Nurse Drops Patient: Medical Malpractice or Ordinary Negligence?

August 21, 2019 | by David J. Halberg, Esq.

Lifting patients is a common – and extremely dangerous – duty of nurses in all different settings. Those in hospitals, nursing homes, urgent care and surgery centers are typically required to follow certain protocol when they do lift to reduce the chances of. Unfortunately sometimes due to short-staffing and lack of training, those safe-lifting protocols aren’t followed.

The question recently before Florida’s Fourth District Court of Appeal was whether a lawsuit centering on injury resulting when a nurse dropped a patient she was lifting could be categorized as ordinary negligence or if it fell under the umbrella of medical malpractice. medical malpractice lawyer

Why would this matter? Because Florida medical malpractice lawsuits are a whole lot tougher. Per Florida statute section 766.106., plaintiffs must meet a higher proof burden (deviation from the applicable standard of care – proven only with expert witness testimony – versus the mere absence of reasonable care where one had a duty, as is the case for ordinary negligence).

Because of the additional requirements for medical malpractice cases, it’s generally in the plaintiff’s best interest to file a claim as one of ordinary negligence if that is a possibility. And the truth is, not all injuries that occur in a hospital are medical malpractice, but the lines aren’t always obvious. Continue reading

Failure to Treat Preeclampsia Results in $230M Medical Malpractice Verdict

July 15, 2019 | by David J. Halberg, Esq.

A renowned hospital in Baltimore has been ordered to pay $230 million for allegedly causing a severe birth injury, according to plaintiffs. Medical malpractice attorneys understand this case involved failure to abide the standard of care for that profession, allegedly causing severe birth injury. birth injury attorney

The verdict includes:

$3.6 million in prior medical expenses;
$1 million in lost earnings
$25 million in non-economic damages (pain and suffering, loss of consortium, etc.)
$200 million in future damages

In Byrom v. Johns Hopkins Bayview stemmed from allegations that doctors and nurses at the hospital gave the child’s 16-year-old mother inaccurate information about the seriousness of the outcome after she was diagnosed with preeclampsia. This, plaintiff attorneys alleged, resulted in the teen mother’s decision to undergo a vaginal delivery – unmonitored – rather than a C-section she should have undergone. Continue reading

Florida Medical Malpractice Appeals Lawyer: The Ongoing Fight for Fair Damages

June 30, 2019 | by David J. Halberg, Esq.

Florida medical malpractice appeals attorneys recognize that cases aren’t necessarily over just because the trial is. Even with cases that end in pre-trial settlement, that may not always be the last word. West Palm Beach medical malpractice lawyer

Although no one on our end is eager to drag matters on longer than necessary (we are paid on a contingency basis, not by the hour), we recognize the importance of appellate courts in ensuring accuracy in the trial courts. Very few cases ever make it to the Florida Supreme Court or the U.S. Supreme Court. Appeals courts do not hear your medical malpractice case all over again, but rather review the issues raised by one or both parties to be sure all laws and legal procedures were fairly applied by the trial court.

Important to note: If your attorney failed to raise important points of contention first to the trial court, the opportunity to present it on appeal may be lost. That’s why carefully choosing an experienced medical malpractice legal team is important. Continue reading

Florida Supreme Court Switches Sides – Again – in Evidence Standards Saga

June 7, 2019 | by David J. Halberg, Esq.

After years of ping-ponging on the issue of evidence admissibility standards in Florida courts – weighing the long-standing, more relaxed Frye test versus the more rigorous Daubert analysis – it seems the Florida Supreme Court has made a final decision. At least for now… West Palm Beach medical malpractice lawyer

For decades, it was Frye. Then in 2013, Daubert. Except not everyone agreed, and for a while, lower courts and lawyers weren’t exactly sure which applied until 2018 when it was definitely Frye. But now, we’re back to Daubert.

As our South Florida injury lawyers can explain, this is going to have a big impact on both criminal and civil cases. Perhaps most significantly in torts, plaintiffs with highly-technical claims requiring expert witness testimony (medical malpractice, product liability, etc.) are likely going to have a much tougher time overcoming the “trial within a trial” hurdle that Daubert presents.

While criminal and civil defense lawyers will be pleased with this change, prosecutors and personal injury lawyers most likely are not. Continue reading

Report: Hundreds of Florida Doctors Still Practice Despite Numerous Medical Malpractice Payouts

May 22, 2019 | by David J. Halberg, Esq.

Doctors who have paid out numerous Florida medical malpractice claims continue to practice, despite a state statute approved by voters more than a decade ago intended to strip such physicians of their medical licenses. That’s according to a recent investigation into state insurance records by a South Florida television news team, NBC-5 in West Palm Beach. medical malpractice attorney West Palm Beach

Our own medical malpractice attorneys in West Palm Beach have encountered physicians in medical negligence claims who had previously lost or settled a number of prior lawsuits asserting they failed to abide the applicable standard of care in the course of medicinal practice, resulting in serious harm to patients.

The reporters discovered hundreds of still-practicing physicians who had paid out in excess of $460 million for Florida medical malpractice lawsuits stemming from the deaths of nearly 1,400 patients over the last 10 years.

This in itself is pretty stunning. However, it’s particularly striking in light of a 2004 Florida constitutional amendment approved by voters called the “three strikes rule.” Continue reading

Florida Medical Malpractice Wrongful Death Law Challenged by Family

April 27, 2019 | by David J. Halberg, Esq.

Florida medical malpractice law needs to change. That’s the stance of the surviving family of a U.S. Marine veteran who died after allegedly receiving negligent medical care following a South Florida motorcycle accident. Despite this, the man’s survivors haven’t been able to file a medical malpractice wrongful death lawsuit because of a provision of Florida statute that prevents such claims from being brought by anyone accept for a spouse, minor children or parents of an adult under the age of 25. West Palm Beach medical malpractice lawyer

The specific law in question (which our West Palm Beach wrongful death lawyers can explain has been in place for nearly three decades) is F.S. 768.21. Its effect is that if a person dies as a result of suspected medical malpractice, there will be no recourse if the patient was unmarried, over the age of 25 or had no minor children. It is a law ripe for challenge considering the very same acts of negligence that would underlie a medical malpractice injury lawsuit would be grounds for litigation – if the person lives. There are no available avenues for accountability, however, if that same individual dies as a result of medical negligence.

NBC-5 in West Palm Beach reports the patient in question was a 32-year-old man from Port St. Lucie, a veteran with a fiancee who was helping to raise her 3-year-old daughter, whom he planned to adopt. He was involved in a Florida motorcycle accident. He reportedly hit a deep pothole, swerved to avoid striking a friend’s motorcycle and in so doing put his leg down when he crashed, resulting in a broken leg. Continue reading

Missed Cancer Diagnosis in Florida? It Could be Grounds for Medical Malpractice Claim

March 15, 2019 | by David J. Halberg, Esq.

A missed cancer diagnosis can have serious and irreparable consequences for patients and their families. As South Florida medical malpractice attorneys know, most cancer is identified based on the totality of one’s symptoms combined with results of radiology imaging tests, such as MRIs, CTs and PETs.

Failure to make a correct and timely diagnosis in circumstances wherein one might expect a reasonable, prudent healthcare professional in the same situation to do so may be deemed medical malpractice, particularly when it results in worsened prognosis or necessitates more intensive treatments than would have otherwise been needed.

In pursuing a medical malpractice claim for a missed cancer diagnosis, it’s often the case that more than one defendant can be held liable. Sometimes, that’s because more than one health care professional made a mistake; other times, it is by virtue of the defendant’s relationship with the negligent party that they can be found liable. For instance, plaintiffs can assert vicarious liability against the employer of an individual health care provider who was negligent – even if the employer did nothing wrong. This is based on a liability theory known as respondeat superior, Latin for “let the master answer.” Continue reading

Florida Medical Malpractice Attorney Ryan Fogg Wins $3.6M for Plaintiff in Wrongful Death Lawsuit

February 27, 2019 | by David J. Halberg, Esq.

Halberg & Fogg PLLC South Florida injury law firm partner Ryan Fogg recently won a $3.6 million medical malpractice arbitration award on behalf of a Cocoa Beach man for the wrongful death of his wife, the result of medical malpractice at Cape Canaveral Hospital in Brevard County. The court-approved arbitration award followed four years of litigation, for which our team has been tirelessly committed to obtaining accountability and compensation for our client. West Palm Beach Medical Malpractice Attorney Ryan Fogg

It began with a common ailment: Back pain. Decedent, a 60-year-old woman, sought relief from a doctor, receiving four spinal injections at the facility over the course of three months in spring 2012.

As West Palm Beach medical malpractice attorney Ryan Fogg later explained to Florida Today, decedent was back in the hospital less than two weeks after that last injection – this time in the emergency room, suffering agonizing pain. Continue reading