medical malpractice lawyer

$100 Million Palm Beach Medical Malpractice Verdict

August 30, 2024 | by David J. Halberg, Esq.

Jurors handed down a $100 million Palm Beach medical malpractice verdict recently to the family of a boy who was mutilated in a botched circumcision that was performed 10 days after the doctor in question had his medical license revoked by the Florida Board of Medicine. The damage award is twice what the family had sued for, illustrating the impact the evidence and the child’s suffering had on those reviewing it. Palm Beach medical malpractice attorney

As longtime Palm Beach medical malpractice attorneys, this case represents an egregious disregard both for patient well-being and professional standards set forth for medical doctors.

According to The Palm Beach Post, the former OB-GYN did not attend the trial, nor did he hire an attorney to represent him in the matter. In previous statements, the ex-doctor stated that the child’s condition was the result of a congenital deformity, rather than a failed circumcision. A midwife testifying on behalf of the family told the court the child, now age 3, had no such deformity at birth.

Whether the family will ever actually receive any of that money remains to be seen. The former doctor has not yet paid a settlement owed to the surviving spouse of another patient who died after giving birth to the couple’s second child. The doctor delivered the child, left the hospital to change his scrubs, and only returned in time to watch his patient die, according to court records.

The doctor was also the subject of a 2017 expose by the local newspaper into the deaths of six patients in procedures gone wrong over his career of three decades. These incidents prompted the state’s medical board to vote to restrict the OB-GYN’s license – a fact he did not tell the aforementioned patient before he was involved in the delivery. Continue reading

CDC: 1 in 5 Women Report Mistreatment During Maternity Care

February 20, 2024 | by David J. Halberg, Esq.

A new report by the U.S. Centers for Disease Control and Prevention reveals that 20% of women report experiencing medical mistreatment from their healthcare providers during maternity care. West Palm Beach medical malpractice lawyer pregnancy

As our West Palm Beach medical malpractice lawyers can explain, it is the job of fetal and obstetrical medical professionals to do their best to ensure the safest and healthiest pregnancy outcomes for their patients. Of course, with any pregnancy, labor, and childbirth, there is a risk of adverse outcomes that can include serious illness, injury and even death. But often, when healthcare professionals are meeting the applicable standard of care, that risk is significantly minimized. If a healthcare worker’s substandard care contributes to the death of the mother or serious injury to a fetus that survives birth, it can be grounds for a personal injury or wrongful death medical malpractice claim.

There is currently no provision in the Florida Wrongful Death Act that allows surviving parents to sue for the death of a stillborn fetus. It may be possible for the mother, and in some cases the father, to sue for mental anguish relating to the loss. These claims are usually as part of a personal injury claim filed by the mother. However, existing law doesn’t allow for such a claim to be made for “wrongful death.”

A bill pending in the Florida legislature would amend the law to add “parents of an unborn child” to the list of people who can file wrongful death lawsuits. It’s not clear whether it will pass, however, as it’s drawn sharp criticism from abortion rights advocates over the implications the law could have for doctors who perform abortions, medically necessary or otherwise. (It does contain a caveat that such a claim couldn’t be filed against the mother.)

Civil lawsuits for maternal deaths resulting from medical malpractice are more straightforward in the right to file a claim, but still potentially complicated. It’s not enough to show that an adverse outcome occurred while a patient was under the care of the healthcare provider in question. One must show strong evidence of medical negligence which directly resulted in an adverse outcome for the pregnant person.

Some examples of situations that may give rise to a birth or pregnancy-related medical malpractice claim include: Continue reading

What is Considered Medical Malpractice in Florida?

December 28, 2023 | by David J. Halberg, Esq.

In Florida, medical malpractice law is complex. Even defining the term requires some explanation. When it comes to the negligence of healthcare providers, the Sunshine State has many unique laws and procedures. Not every poor medical outcome or injury at a hospital qualifies as medical malpractice in Florida. Sometimes there are barriers preventing viable claims even when the evidence strongly supports allegations of medical negligence. This is why it’s so important to work with an experienced attorney. medical malpractice lawyer

To ascertain whether an injury qualifies, our Palm Beach medical malpractice lawyers typically start by carefully considering the following:

Whether the healthcare professional had an established caregiver-patient relationship with the plaintiff.
Whether the healthcare professional’s actions – or inaction – caused harm or injury to the plaintiff.
How likely it is that there is some other cause of the plaintiff’s harm or injury.
Whether those actions fell below the applicable standard of care for someone in their position (considering education, experience, facility, region, etc.).
How long ago the healthcare’s alleged negligence took place, as well as when the harm/injury was discovered.
If the patient died as a result of the alleged medical malpractice, did they have a surviving spouse OR children under the age of 25 at the time of the incident?

Remember: The burden of proof lies with the plaintiff, or the one who is filing the case. And there is a rigorous process with medical malpractice claims just to get past the preliminary stages of a lawsuit. Working with an experienced Palm Beach medical malpractice lawyer is critical.

What Exactly is Medical Malpractice?

Florida medical malpractice laws are outlined in 766.101 to 766.203. Medical malpractice is generally understood as subpar treatment provided by a doctor, surgeon, nurse, or other healthcare provider that results in significant harm or injury to the patient. Continue reading

“Can I Sue If Florida Doctors Misdiagnose Me With Cancer?”

June 30, 2023 | by David J. Halberg, Esq.

As Palm Beach medical malpractice lawyers, we know that some of the most common claims stem from diagnostic errors. These include situations like failure to identify a serious disease or diagnosing you with one condition when really you have something else. In these situations, a doctor’s deviation from the standard of care can cause a patient to lose critical time in treating the actual condition. Sometimes, these mistakes cost patients their lives. medical malpractice diagnosis error

But what if you’re diagnosed with something you never actually had? On one hand, you might be relieved to find out you’re disease-free. But on the other hand, you may have undergone numerous painful treatments – not to mention the emotional and mental anguish of such a diagnosis – only to find out it was all wholly unnecessary.

The trauma in that situation is valid. However, it might not be legally actionable. That’s because of the lack of permanent harm.

The reality is that medical malpractice lawsuits are very expensive. They require expensive expert witnesses, a lot of attorney time and energy, etc. And attorneys accept these cases on a contingency basis, meaning they aren’t paid unless and until the plaintiff wins. Even then, most are accepting a percentage of the overall damage award. If there’s no permanent harm suffered, that means the potential damage award dwindles substantially – and fewer attorneys are going to be willing to take the risk.

But we do recognize this is incredibly frustrating for patients who have had to endure these ordeals. The Tampa Bay Times recently delved into this issue, highlighting several cases of diagnostic errors that that led to patients believing they had a serious illness when they actually didn’t.

In one case, a woman was told two days before Christmas that laboratory tests confirmed a type of cancer in her lymphatic system that usually spreads fast to other organs. Her husband was devastated. They canceled holiday celebrations. They cried together a lot. They talked about the wife’s final wishes, and how the husband would manage – financially and otherwise – without her. They canceled an expensive, non-refundable, two-month vacation they had planned so they could focus on her treatment. She upgraded her medical insurance policy to one that was double what she’d previously had. She paid more than $4,000 in tests and consultations. Out of pocket, the couple estimates they were out about $20,000.

But then two months later, a new test result shocked them both: She was completely cancer-free. She’d been misdiagnosed, and as it turned out, she didn’t need any treatment at all.

When she contacted several injury lawyers to see about filing a medical malpractice claim, each turned her down. All cited the fact that she’s currently healthy and whatever damages she did collect probably wouldn’t cover the amount it would take to bring the case to court.

As medical malpractice attorneys, we do understand the deep anger and frustration and desire to hold medical providers accountable when they make major errors. But the reality of such a low damage award means the statutorily-required expert witness would get paid, the lawyer would get paid, but the client probably wouldn’t. Most medical malpractice lawyers would find taking such a case to be unethical. But neither can we agree to take less than our regular fee for our work – or ask the expert witness to do so. Continue reading

Are Injuries Received in Physical Therapy Medical Malpractice?

March 30, 2023 | by David J. Halberg, Esq.

Physical therapy is a form of medical treatment that helps injured or ill people of all ages and ability to improve movement and manage pain. These treatments are beneficial in preventing future injuries, rehabilitating someone who has already been injured, or treating patients with chronic conditions or illnesses. But what if the treatment itself results in injury? As our West Palm Beach medical malpractice lawyers can explain, most physical therapy negligence cases will be filed as medical malpractice lawsuits. That’s because most claims arise out of a deviation from the standard of care expected of any physical therapist. However, there are some situations wherein a plaintiff will advocate for their claim to be treated as a general negligence case. Florida physical therapy negligence

Why does it matter? Because medical malpractice cases are a lot tougher to win. They take longer (but have a shorter statute of limitations than ordinary negligence cases), require more expert witnesses, have a higher proof burden, and must clear more hurdles before they even get a foot in the door. If you try to allege a physical therapy injury was general negligence, be prepared for push back.

What’s more, if you file the case as one of general negligence and the court later rules it was, in fact, medical malpractice, your case could be tossed and you have to start all over. If you’re past the statute of limitations, you may lose your opportunity to seek damages altogether.

Your personal injury lawyer can help you determine if your case is one of general negligence or medical malpractice, though sometimes the answer isn’t always clear-cut. Example: Corbo et al., v. Garcia, decided in 2007 by Florida’s 2nd District Court of Appeals. Continue reading

Top 6 Challenges in South Florida Medical Malpractice Lawsuits

December 22, 2022 | by David J. Halberg, Esq.

A CT scan showed you had cancer, but the doctor failed to diagnose it. An OBGYN error during labor and delivery deprived a fetus of adequate oxygen during birth, leading to permanent brain damage and disabilities. Hospital staffers gave your mother the wrong dose of a powerful medication, resulting in her death. These are just a few examples of scenarios that can spur South Florida medical malpractice lawsuits.

Actually winning, though, is another matter.

In a recent analysis by NiceRx, Florida ranked No. 3 in the country over the last decade for the most reported incidents of medical malpractice. Yet it ranked 43 out of 50 for medical malpractice payout totals. The actual number of Florida medical malpractice incidents is almost certainly much higher than what’s reflected on court dockets – a direct result of Florida lawmakers’ efforts to make it inherently tougher to pursue these cases compared to other kinds of personal injury and wrongful death claims. The proof burden is higher, the filing deadlines are shorter, and there are tighter restrictions on who has standing to file and how much money can be awarded. It’s an awful shock for some families when they learn that neither a tragic outcome nor even proof of a medical mistake necessarily guarantees a successful medical malpractice claim. In fact, those truths may not even get your foot in the door of the courtroom.

Who is a Qualified Expert in a Florida Medical Malpractice Lawsuit? Florida Supreme Court to Decide.

July 16, 2022 | by David J. Halberg, Esq.

The parameters of qualified medical experts in Florida medical malpractice lawsuits will be weighed by the Florida Supreme Court. Justices recently allowed the Florida Medical Association, American Medical Association, and Hospital Medical Association to file briefs in the case supporting the hospital defendant. medical malpractice lawyer Palm Beach

As our Palm Beach medical malpractice lawyers can explain, the court’s ruling on this issue could have far-reaching implications because it will determine the criteria for doctors who provide expert opinions, which are required at the very outset of every Florida medical malpractice lawsuit.

The case, University of Florida and Shands Hospital v. Carmondy, involves a plaintiff who filed a medical malpractice lawsuit due to an infection she suffered after undergoing cervical disc fusion surgery in 2016. Her negligence claims were against a neurosurgeon and an advanced registered nurse practitioner. Her petition included affidavits from a physician who practiced internal medicine and cardiology, and who previously had worked as a hospital specialist.

These cases cannot move past the initial phase unless the plaintiff submits affidavits from a doctor or doctors who are experts on par with the defendant who are of the opinion that the defendant breached the accepted standard of care for their profession. An accepted standard of care is not a simple question to answer. Much depends not only on the education, training, and specialty of that medical professional, but also what type of facility they practiced in and in what region. A highly specialized neurosurgeon working in a top hospital in an urban city with ample resources will be held to a different standard than someone of the same educational and training background, but with fewer resources. Continue reading

How Hard is it to Get Punitive Damages in Florida Medical Malpractice Lawsuits?

January 23, 2022 | by David J. Halberg, Esq.

Punitive damage awards – which can potentially triple the monetary damages to which you are entitled in an injury lawsuit – are notoriously tough to obtain in Florida medical malpractice cases. Even getting judicial approval to request them requires proof of gross negligence and/or intentional misconduct – rare in any medical negligence case. The West Palm Beach medical malpractice attorney you hire should be able to tell you whether it’s at all a possibility after a careful assessment of the facts of your case.

There are two basic types of damages you can seek in a Florida injury case: Compensatory and punitive.

Compensatory damages are paid to compensate someone for specific losses, injuries or detriments. There are actual (aka “special”) compensatory damages (medical bills, lost wages, transportation, rehabilitation, property replacement, etc.) as well as general compensatory damages (pain and suffering, emotional distress, loss of consortium, loss of life enjoyment, etc.).

Punitive damages, meanwhile, are intended to punish the defendant for egregious negligence or intentional wrongdoing and/or to serve as a deterrent. It is paid to you, but the driving factor is the outrageousness of the defendant’s wrongful conduct. Punitive damages are capped in Florida to be either three times the amount of the compensatory damages OR $500,000, whichever is greater.

Medical malpractice claims in Florida are tougher than the average tort case as it is because it’s not enough to show the health care provider simply failed to use reasonable care (the standard for typical negligence claims). What must be established – by expert witness testimony of a similarly-situated medical professional – is that the health care provider failed to follow the applicable standard of care for their specialty, region, and circumstances. Doing so would entitle the claimant to collect compensatory damages for their injuries.

But punitive damages would only be allowed, per F.S. 768.72, if there was proof the health care provider in question engaged in intentional misconduct or gross negligence. Continue reading

“Never Events” – Florida Medical Errors in Surgery Can Lead to Litigation

July 18, 2021 | by David J. Halberg, Esq.

Recently in another state, a hospital admitted a patient received a kidney meant for someone else. The hospital released a statement apologizing for the medical error and said two employees were placed on leave. The only good news is that while the kidney was given to the wrong patient, it is compatible with that person, who is expected to recover. Meanwhile, the surgery for the intended patient has been delayed. NPR reports the hospital is reviewing what went wrong and how to prevent similar mistakes. Palm Beach medical malpractice lawyer

Such incidents are what are referred to by healthcare professionals and medical malpractice lawyers as “never events.” These are errors in medical care that are:

Clearly identifiable.
Preventable.
Serious in their consequences for patients.
Indicate a real problem in the safety and credibility of a health care facility.

These can include wrong side, wrong site, wrong procedure, wrong patient. Simply put, they are things that should never happen. When they do, patients adversely affected are rightly entitled to some form of compensation for medical expenses, lost wages, pain and suffering, loss of life enjoyment, loss of consortium (spouse) and wrongful death. 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