medical malpractice

Florida Medical Malpractice Laws Fail Adult Children, Their Parents

April 14, 2022 | by David J. Halberg, Esq.

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

Explaining Florida’s Three Strikes Rule for Medical Malpractice

February 10, 2022 | by David J. Halberg, Esq.

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

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

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

Palm Beach EMS Paramedic Negligence Lawsuit Settled

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

Emergency medical services (EMS) professionals, which include both emergency medical technicians (EMTs) and paramedics are often the first responders on scene in the midst of a medical crisis, such as a Florida car accident, heart attack or serious personal injury. When they do their job right, countless lives are saved. However, if EMS negligence occurs, people affected may have grounds to sue the EMS worker and/ or that person’s employer (either a private company, government contractor or the government itself) for liability to pay damages. EMS injury attorney

The principles of EMS are essentially:

Early detection;
Early reporting;
Early response;
Good on-scene care;
Care in transit;
Transfer to definitive care (i.e., a hospital).

The purpose of EMS is to provide immediate medical care in the hopes of prolonging life, as well as providing individuals the means to promptly get definitive care when they need it. But as in so many other professions, events don’t always go as planned. Continue reading

Misplaced Catheter Blamed in Medical Malpractice Lawsuit

June 23, 2018 | by David J. Halberg, Esq.

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

Surgical Sponges Left Inside a Patient is “Never Event” That Happens Too Often

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

“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.

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

Surgery Centers Boom, But Not Always Equipped to Handle Life-Threatening Emergencies

March 20, 2018 | by David J. Halberg, Esq.

Every year, hundreds of thousands of patients undergo surgery at one of the nation’s rapidly proliferating surgical centers (estimated to be somewhere between 5,600 to 7,000). In fact, these centers now surpass the number of hospitals, as U.S. regulators trying to lower health costs are green-lighting an expanding number of outpatient procedures. However, according to a new in-depth report from Kaiser Health News and USA Today, these centers are too often are ill-equipped to handle emergency complications. As a result, hundreds of patients have died as a result of “routine” surgeries, such as tonsillectomies and colonscopies. medical malpractice

No knows exactly how many deaths, illnesses and injuries happen at these centers because no one is required to keep track.

Although any surgery carries a risk and some centers boast top-of-the-line medical equipment and well-trained staffers, journalists uncovered dozens of cases where a lack of training or basic equipment found at most hospitals made a difference in patient outcomes. Continue reading

Florida Jury Orders Eye Doctor to Pay $13M for Botched Surgery

October 29, 2017 | by David J. Halberg, Esq.

An 80-year-old South Florida man was awarded $13 million after a botched cataract surgery that a jury concluded was the result of medical malpractice.

NBC-6 Miami reports jurors concluded the medical center where the surgery was conducted was liable in a case involving the negligence of an opthalmologist with whom the center contracted for routine eye surgeries. The surgery resulted in patient suffering total blindness in one eye.

As our medical malpractice attorneys in Miami can explain, normally medical centers (hospitals, clinics, nursing homes, etc.) aren’t vicariously liable for the negligence of independent contractors. Instead, they are only vicariously liable for the work of employees. While it must seem to many patients that doctors who work at these facilities work for them, more often than not, this isn’t the case. However, in this case, the jury determined the physician was an actual employee of the center, even though he was practicing on contract.

Vicarious liability stems from a legal doctrine of respondeat superior, which is Latin for “let the master answer.” It means an employer can be liable for the negligent acts of employees who were acting in the course and scope of employment. It does not require proof that the facility itself did anything directly wrong, only that it employed the person who was negligent and that person was acting as an employee at the time the injury occurred. Continue reading

Was Your Hospital Injury Medical Malpractice or General Negligence?

October 6, 2017 | by David J. Halberg, Esq.

Injuries that occur in hospitals are mostly matters of medical malpractice, meaning they stem from substandard care provided by medical professionals. However, some hospital injuries are the result of general negligence (often due to unsafe conditions on the premises). Although hospitals are providers of care, they are also owners of property, with a duty of reasonable care under premises liability law to the general public who enter. medical malpractice

This distinction is clear in some cases. For example, a visitor slips-and-falls in a just-mopped hospital lobby that isn’t marked with a sign. Clearly, that incident isn’t a matter of medical malpractice; the visitor wasn’t even being treated. However, when it comes to patients – current, prospective or leaving – the waters can get muddied.

It’s an important distinction to make because the proof burden for these two types of cases is very different. For general negligence cases, one must simply prove defendant owed a duty of care, that duty was breached and the breach resulted in an accident that caused injuries. However, Florida medical malpractice cases, per F.S. 766.102, require claimants to prove by the greater weight of evidence that alleged actions of health care provider(s) breached the prevailing professional standard of care for that health provider. This considers whether the level of care, skill and treatment in light of all surrounding circumstances is deemed acceptable and appropriate by reasonably prudent similar health care providers. In order to do this, one must present a qualified expert medical witness testimony – and that’s long before one ever gets to the trial phase. There is also the matter of the statute of limitations (the time in which one has to file a case). In Florida, general negligence claims can be filed within four years. Medical malpractice claims have to be filed within two years. Continue reading