West Palm Beach medical malpractice attorney

Florida Supreme Court Draws a Line on Medical Malpractice v. Negligence

May 7, 2018 | by David J. Halberg, Esq.

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

$26M Medical Malpractice Verdict Results in $25M Settlement and Drop of All Future Appeals

January 4, 2018 | by David J. Halberg, Esq.

Most people assume the end of the road for a Florida medical malpractice lawsuit is the verdict. However, that is not the case as there is always the potential for appeal. The National Center for State Courts reports medical malpractice cases have an appeal rate of 18 percent. Those cases that tend to have the highest rate of appeal are those that involve serious injuries, complex medical and/ or scientific evidence and expert testimony. That’s why medical malpractice cases in Florida tend to have a higher rate of appeal than, say, a car accident injury verdict. What’s more, the center reported, defendants who lose medical malpractice cases are more likely to appeal than plaintiffs. medical malpractice lawyer

Most medical malpractice cases that are appealed involve:

Loss of mental function;
Facial scarring;
Loss of sight/ hearing;
Death;
Paralysis.

Because appeals can be so costly, it’s not unheard of for medical malpractice plaintiffs to end up back in negotiations with defendants – even after they have obtained a favorable verdict. The reason is if there is a good chance defendant will appeal (and may have a strong argument on appeal), plaintiff may agree to a settlement – ending the case then and there, albeit for a lesser amount – than go through the time, expense and ordeal of an appeal. It’s also possible that if a trial is bifurcated (split into separate issues, usually liability and damages) that a defendant will settle after liability has been determined, but prior to a finding of damages. Continue reading

Florida Medical Malpractice Records at Center of Ongoing Legislative Battle

December 13, 2017 | by David J. Halberg, Esq.

More than 10 years ago, Florida voters soundly agreed that “adverse medical incident reports” should be public knowledge to patients. That measure was known as “Amendment 7.” However, there is now an effort underway to limit access to this information once again, driving concern that physicians and other health care providers will be able to more easily conceal wrongdoing. medical malpractice

A former general counsel to the governor, now a member of the state’s Constitution Revision Commission, has formally proposed an amendment to the Florida Constitution that would place limitations on the kinds of records that could be used in medical malpractice litigation against physicians, hospitals and other health care providers.

The reason these records are so important is because they allow the public – and medical malpractice claimants in particular – to slash through the red tape. Prior to the passage of Amendment 7 (which was done with an overwhelming majority), it was incredibly common for hospitals to make it difficult to obtain prior records of wrongs by a given physician or hospital, characterizing the data as privileged by risk management or peer review. Continue reading