Articles Posted in Medical Malpractice

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When someone dies as the result of medical malpractice in Florida, state law unfortunately limits the types of damages that can be recovered – and by whom. Florida injury lawyers have long railed the restrictions on who may proceed with a medical malpractice claim in the event the patient dies – restrictions for which powerful medical industry lobbyists pushed hard.medical malpractice lawyer

The result is provisions of the Florida Wrongful Death Act that restrict plaintiffs in medical malpractice wrongful death cases to:

  • A child under the age of 25;
  • An adult child who is dependent on decedent for financial support;
  • A spouse;
  • A parent of a child under age 25.

Unless decedent has a surviving loved one who falls under these narrow parameters, there is legally no claim allowed under law. Further, if a decedent dies while a case is pending and doesn’t have a survivor in this category to step in as a plaintiff, the case will die with them and the negligent health care provider is never held to account. That is something that should bother everyone who potentially needs medical care in Florida because it means facilities and providers providing care that falls below baseline accepted medical standards may never have to answer for it, leaving them free to practice and profit without consequence. Unfortunately, the Florida Supreme Court has upheld this as a legitimate means of reducing medical insurance costs.  Continue reading

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When a patient goes to see their primary care physician, a specialist, or goes into the emergency room for immediate care, they are relying upon the expertise of their respective medical providers to diagnose what is wrong with them, if the cause of the illness or other medical condition is not obvious, and to advise them of the proper course of treatment.

medical malpractice attorneyIn some cases, a doctor will say they will not know the full extent of the medical condition until they perform some type of exploratory surgery or diagnostic test, and then at that point will know the best course of treatment.  There is nothing wrong with this type of approach and it is often necessary to successfully treat a patient, or even save a patient’s life.  Continue reading

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A hospital system in Alabama was granted a new trial following a jury verdict for $10 million in favor of a man who sued for medical malpractice over his infant son’s treatment. The primary cause for reversal, the Alabama Supreme Court ruled, was the trial court’s decision to allow prior acts and omissions by the hospital system defendant. These facts were not relevant to the case at hand, justices ruled, and were ultimately highly prejudicial to the defense. medical malpractice attorney

Although this is surely not the news plaintiff wanted to hear, it does not mean the case is lost. It means medical malpractice attorneys will need to be fully prepared to thoroughly establish a failure to meet the applicable standard of medical care this scenario necessitated.

According to court records, the child ultimately suffered from seizure disorder, blindness and deafness as a result of misdiagnosed bacterial meningitis. Research published by the Mayo Clinic in Minnesota revealed approximately 20 percent of patients who sought a second opinion at one of the country’s top medical providers learned they had been initially misdiagnosed by their primary care provider. Study authors noted that correct diagnosis can be difficult because there are some 10,000 diseases and only about 300 symptoms. Our medical malpractice attorneys in West Palm Beach recognize that a misdiagnosis in and of itself is not enough to bring a case. One must show with expert witness testimony and other evidence that the physician’s diagnosis failed to meet the accepted standard of care for his or her specialty, region and facility. Expert witnesses must be vetted and hold the same general credentials as the defendant doctor or healthcare provider. Continue reading

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A U.S. veteran died from blood poisoning, due to what his family alleges was medical negligence in the form of a misplaced catheter.medical malpractice attorney

According to MensHealth.com, the medical malpractice lawsuit filed by his survivors indicates the patient suffered from both a traumatic brain injury and multiple sclerosis when he sought treatment at a Veteran’s Affairs clinic in Missouri for a condition called neurogenic bladder, common with MS patients. The condition makes it tough for patients to control their bladder function. After his catheter was changed at the facility, the 52-year-old was returned to the facility where he resided, where caregivers noted he had a fever – and large amounts of clotting and blood at the end of his penis. He was rushed to the hospital, diagnosed with a urinary tract infection and also sepsis, a life-threatening complication of bacterial infection.

Plaintiffs allege a CT scan conducted soon thereafter showed the balloon in the Foley catheter inflated not in the bladder, as is the intent, but in the urethra. He died of septic shock last month. Continue reading

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Walk into almost any hospital emergency room or intensive care unit – and what do you hear? There is the almost constant whoosh-and-honk of the ventilator. There might be an infusion pump, beeping in a high-pitch tone every six seconds or so. Blood pressure monitors will let out one single long tone after another. All these medical devices contribute to something we as medical malpractice attorneys recognize as “alarm fatigue.” medical malpractice

Although all of these monitors have their purpose, most of the time they don’t require any action. When medical professionals (nurses, in particular) grow accustomed to this constant din of noise – sometimes several hundred alarms daily – they can grow desensitized to it. Others, to avoid becoming overwhelmed, may turn the volume down. Some might simply ignore them. This could have serious and possibly deadly consequences to patients.

Patient safety advocates and medical malpractice attorneys have been raising concern about this issue for many years. However, it’s become an increasingly more pressing problem as technology evolves and the medical device community emerges with an increasing number of complex, loud machines – all intended to save lives, but contributing to this alarm fatigue issue.  Continue reading

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Finding that an arbitration panel handling a medical malpractice lawsuit erred in the way it awarded loss of companionship and guidance damages to a husband and child in the death of a brand new mother, a Florida appeals court reversed a $4 million award of compensation.birth injury lawyer

The ruling is disappointing, but the family will still receive compensation and it’s important for medical malpractice lawyers and plaintiffs to understand exactly what went wrong. The primary issue was the fact that damage awards of this nature are considered non-economic damages. Although the Florida Supreme Court has ruled caps on non-economic damages are unconstitutional in medical malpractice cases (both personal injury and wrongful death), F.S. 766.207 holds that non-economic damages recoverable in arbitration proceedings can be limited to $250,000 per incident (serving as yet another example of one of the many ways arbitration agreements can harm injured or wronged plaintiffs). Here, the loss of companionship award was initially categorized as economic damages, and thus not subjected to the arbitration clause limit. It’s also worth noting that the court did not take issue with a finding that a loss of consortium award, finding it warranted.

According to court records from Florida’s Fourth District Court of Appeal, this claim involves the death of a wife and mother due to events that took place during an emergency C-section in August 2014. The mother had lost so much oxygen to her brain while in the hospital that she slipped into a vegetative state, from which she died three months later.  Continue reading

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Not every injury that occurs at the hands of a medical professional or inside a medical institution is considered medical malpractice. The Florida Supreme Court once again made this distinction in a recent case when asked to consider whether the trial court made the right decision in tossing a negligence lawsuit for failure to meet stringent medical malpractice lawsuit requirements, or whether the appeals court was right for reversing the lower court to allow the matter to proceed.medical malpractice attorney

Negligence versus medical malpractice is an important distinction because if a hospital or health care professional is successful in having the case designated as sounding in medical malpractice, plaintiffs must then abide by the state’s complex medical malpractice statutory schema, as outlined in F.S. 766.106. This includes specifications for pre-suit notice (including sending a copy of the complaint to the Department of Health and the Agency for Health Care Administration), to determine if conduct alleged subjects a licensee to disciplinary action. It also involves giving defendant 90 days in which to conduct a review of the allegations and either reject the claim, make a settlement offer or make an offer to arbitrate. (Settlement at this phase is rare.) Then plaintiff has 30 days from receipt of that response to give their own response. Then there is an informal discovery process, response to written questionnaires, collection of un-sworn statements by treating providers and more. Additionally, medical malpractice claimants must have an expert witness who is equally if not more qualified than the defendant to testify to a breach in the applicable standard of care. Finally, (save for some exceptions) medical malpractice claims have a two-year statute of limitations, whereas personal injury litigation has a four-year statute of limitations.

Negligence cases are much more simple. That’s why if a defendant can argue it’s medical malpractice, they will, because, as our South Florida medical malpractice attorneys know, it means more hurdles for you. Continue reading

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The Florida Supreme Court recently sided plaintiffs in a dispute regarding witness testimony in a medical malpractice lawsuit involving a young child forced to undergo a kidney transplant due to alleged failure to diagnose a chronic illness by her primary care doctor.medical malpractice

In the case of Gutierrez v. Vargas, plaintiff reportedly suffered from a chronic kidney disease that went undiagnosed for six years, ultimately resulting in so much damage she had no choice but to undergo a kidney transplant. Defendant argues plaintiff suffered a different disease that could not have been diagnosed sooner. The case went to trial and plaintiff was awarded $4.1 million in damages.

Defendant appealed on the grounds the decision conflicts directly with those of other district courts on a question of law. Specifically, defense argued the lower court should not have allowed several of the girl’s treating physician to testify at trial about their diagnostic opinions or allowed rebuttal testimony from a second pathology expert. After the judgment was reversed and remanded for trial by Florida’s Third District Court of Appeal, the state high court ruled there was no abuse of discretion and affirmed the trial court’s conclusion. Continue reading

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The ongoing scourge of medical malpractice in Florida is reason the state legislature and health care professionals established the Peer Review process, as outlined in F.S. 395.0193. It’s a means of identifying potential problem areas for individual physicians by having colleagues review their work, with the stated goal being improvement of patient care and reduction in medical and legal expenses. medical malpractice

However, one of the aspects of the peer review process, per section 8 of that statute, is that the investigations, proceedings and records of the peer review panel, a committee of a hospital board, disciplinary board, government board or agent of one of these “shall not be subject to discovery or introduction into evidence in any civil or administrative action against a provider of professional health services arising out of the matters which are the subject of evaluation and review…” In other words, if you file a medical malpractice lawsuit against a Florida doctor, the records contained in these peer review files – even if relevant – can’t be compelled. However, records pertaining to these cases from independent sources aren’t immune from discovery just because they were presented in peer review proceedings.

It can be frustrating as a patient who suffered a missed diagnosis, misdiagnosis or other medical error to know there are records that could help your case that you can’t use. However, as a recent case before the Pennsylvania Supreme Court revealed, this immunity may not extend to each and all circumstances. Pennsylvania has a similar peer review process and statutory immunity to protect information gleaned in these proceedings. However, in Reginelli v. Boggs, the court held that the performance file developed by an independent contractor (one that provided staffing and administrative services for a hospital emergency room) were not protected under the state’s peer review statute. Continue reading

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“Never events,” according to the National Quality Forum, are those mistakes that occur during medical care that are:

  • Clearly identifiable;
  • Easily preventable;
  • Serious in their consequences for patients;
  • Indicate major problems in the safety and credibility of a health care center. medical malpractice

They include things likes mismatched blood transfusions, major medication errors, surgery on the wrong body part and pressure ulcers/ bedsores. They also include items, like surgical sponges, left inside a patient after surgery. Yet the Institute of Medicine estimates more than 100,000 such incidents occur annually, resulting in more deaths than car accidents and more than $9 billion in excess charges.

A recent analysis published in the New England Journal of Medicine details a case wherein a 42-year-old woman reported to a primary care center with bloating – only to discover in a CT scan that two gauze sponges had been left inside her abdomen from one of two (or both) prior C-section surgeries – one six years earlier and one nine years earlier. CNN reports she’d had no prior abdominal or pelvic surgeries.  Continue reading

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