Fort Myers medical malpractice lawyer

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

Florida Appeals Court Reverses $4M Medical Malpractice Damage Award

May 28, 2018 | by David J. Halberg, Esq.

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

Florida Supreme Court Sides With Plaintiff in Med-Mal Lawsuit

April 29, 2018 | by David J. Halberg, Esq.

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.

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