South Florida Injury Law Blog

There are a number of procedural hoops that a plaintiff in a Florida medical malpractice lawsuit must jump through before bringing suit. As the state's Fourth District Court of Appeal explains in Berry v. Padden, the failure to abide by these pre-suit rules can be fatal to a case.

Plaintiffs Elsie and Carl Berry filed suit against Defendant Dr. David Patten, asserting that he committed medical malpractice during Ms. Berry's knee replacement surgery by improperly installing a tibial component that was too large. In support of their complaint, Plaintiffs attached a letter from an orthopedic surgeon - Dr. Christopher J. Cassels - which was not verified as sworn, notarized or otherwise at the time the complaint was filed. Plaintiffs filed a verified opinion from the orthopedic surgeon roughly six months later.

Florida law requires a person seeking to sue for medical negligence to corroborate the basis for the suit by submitting "a verified written medical expert opinion from a medical expert ... at the time the notice of intent to initiate litigation is mailed." Where a plaintiff fails to meet this requirement, a court is required to dismiss the claim.

The trial court granted Dr. Patten's motion to dismiss the claim finding that the Berrys failed to provide a verified written medical expert opinion within the applicable statute of limitations, which expires two years from the date of the alleged negligence (with an additional 90 days of required pre-suit notice to the defendant and a possible 60-day extension).

The Fourth District affirmed the ruling on appeal. "The law is well-established that a properly verified, corroborating medical expert opinion must be provided by the plaintiff to the defendant prior to expiration of the statute of limitations," the court noted, citing the Second District's 1998 decision in Maguire v. Nichols. Although the defect can be cured by filing a verified opinion before the statute of limitations expires, according to the court, a medical negligence case must be dismissed where the opinion is filed after the expiration date.

Continue reading "In Order to Sue for Medical Malpractice in Florida, You Must First Get a Medical Expert Opinion - Berry v. Padden " »

Sunshine State lawmakers are set to consider a proposed law intended to limit Florida medical malpractice lawsuits by raising the standard of proof in certain cases and allowing defendants to have unfettered access to a plaintiff's treating doctors.

The Associated Press' Gary Fineout reports that "[t]his effort is being criticized as an attack on the privacy rights of patients and comes at a time when fewer medical malpractice claims are being filed, according to state regulators."

Sponsored by Rep. Matt Gaetz (R-Fort Walton Beach), House Bill 385 provides that a doctor is not liable for malpractice for failing to order or perform a diagnostic exam, unless the doctor also failed to act "in good faith," as proved by the plaintiff based on "clear and convincing evidence." It also allow a potential medical malpractice defendant - a person seeking to sue for medical malpractice must notify the defendant before filing suit - to interview the plaintiff's treating doctors without the plaintiff or his or her attorney present.

Undeterred by the difficult standard of proof that the proposed law would enact for certain medical malpractice plaintiffs, Gaetz told the AP flatly that sometimes there are simply "bad outcomes" in medicine. He also overlooked the significant privacy implications of allowing a doctor to talk to a third person about a patient's condition and treatment without the patient or a representative present.

Section 456.057(7)(a)(3), Florida Statutes (2010) requires that a health care practitioner obtain a patient's written authorization before discussing the person's medical records with a third party. The law provides an exception, however, "[i]n any civil or criminal action . . . upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient's legal representative by the party seeking such records." § 456.057(7)(a)(3).

Continue reading "Florida Considers Medical Malpractice Revamp, Raising Privacy Concerns" »

A person seeking to sue a doctor or hospital for medical malpractice in Florida is generally required notify the defendants before filing suit. But what about suits against other health professionals like pharmacists? Florida's Second District Court of Appeals recently took on this issue in Galencare, Inc. v. Mosely.

The plaintiff in this case is the estate of Mable Moseley, which filed an action alleging that Ms. Mosely died due to an overdose of narcotics administered while she was in the care of Brandon Regional Hospital near Tampa. The estate brought a negligence claim against seven pharmacists (the Pharmacists) working at the hospital and a third-party spoliation claim against the Hospital, alleging that it failed to maintain the proper records that could support a claim by the Estate against the other defendants who are not health care providers.

The Pharmacists filed a motion to dismiss the claims against them, arguing that the Estate failed to provide the notice required before filing a medical malpractice suit in Florida. Specifically, section 766.106 Florida Statutes (2008) states that "[a]fter completion of pre-suit investigation pursuant to s. 766.203(2) and prior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant . . . of intent to initiate litigation for medical negligence." A trial court denied the motion, finding that the claims against the Pharmacists are not medical malpractice claims and, therefore, not subject to the notice requirement.

On further review, the Second District agreed with the trial court, finding that the Estate was not required to notify claims the Pharmacists before bringing its claims against them. These claims, according to the court, are not medical malpractice claims. Under Florida law, a medical malpractice claim is one in which the plaintiff seeks damages for the death or personal injury of a person resulting from the negligence of a health care provider. Section 766.202(4) defines "healthcare provider " as:

any hospital, ambulatory surgical center, or mobile surgical facility ...; a birth center...; a clinical lab...; a health maintenance organization...; a blood bank; a plasma center; an industrial clinic; a renal dialysis facility; or a professional association partnership, corporation, joint venture, or other association for professional activity by health care providers.

This list doesn't include pharmacists. "We must conclude that the legislature specifically intended to exclude pharmacists...from the definition of health care provider," the court ruled. As a result, the Pharmacists were not subject to the pre-suit notice requirements.

Continue reading "Florida Court Explains Medical Malpractice Notification Requirement - Galencare, Inc. v. Mosely" »

While the statute mandated Florida Birth-Related Neurological Injury Compensation Plan (NICA Plan) provides no-fault benefits for certain childbirth injury claims, the Florida Supreme Court recently made clear that coverage under the plan is limited and in many cases the parents of injured children can seek a full range of legal remedies.

In Bennett v. St. Vincent's Medical Center, Inc., et al, the Court ruled that the parents of a child born with certain brain injuries could sue the hospital and physicians allegedly responsible for damages and were not required to pursue limited compensation in an administrative forum provided under the NICA plan.

Plaintiff Tammy Bennett was pregnant when she was involved in a car accident in MacClenny, Florida. Following fetal testing, she was transferred to St. Vincent's Hospital in Jacksonville. At St. Vincent's, Ms. Bennett declined into kidney failure and underwent a caesarean section for the delivery of her daughter, Tristan. In the following week, the child suffered from numerous conditions, many of which were linked to kidney and liver damage. She suffered a pulmonary hemorrhage, oxygen deprivation and seizures a week later and it was determined that Tristan had sustained permanent and substantial neurological damage. The Bennetts filed a medical malpractice suit against the hospital and treating physicians.

According to the Court, the NICA Plan was created in 1988 "as a means to alleviate the high costs of medical malpractice insurance for physicians practicing obstetrics." The plan provides compensation, on a no-fault basis, for a limited class of birth-related neurological injuries. Coverage is specifically limited to "birthrelated neurological injury":

injury to the brain or spinal cord of a live infant. . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired.

Continue reading "Medical Malpractice in Childbirth and the Limits of Florida's NICA Coverage - Bennett v. St. Vincent's Medical Center, Inc., et al" »

The statutory cap on punitive damages in Florida medical malpractice cases remains intact - at least for the time being - thanks to a recent ruling by the Eleventh Circuit Court of Appeals.

In Estate of Michelle Evette McCall v. United States, the Eleventh Circuit upheld Florida's cap on non-economic medical malpractice damages, ruling that the statute under which it was enacted does not violate the U.S Constitution. However, the court opted to certify the question of whether the cap violates the Florida Constitution to the state supreme court.

Michelle McCall died in February 2006, shortly after giving birth via cesarean section at the Eglin Air Force Base hospital in southwest Florida. McCall's estate, parents and husband sued the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80.

After a two-day bench trial, the District Court found the United States liable under the FTCA because the negligence of its employees proximately caused Ms. McCall's death. The District Court found that the plaintiffs' compensatory damages, or financial losses, amounted to $980,462.40 and punitive, or noneconomic damages, totaled $2 million. Because Florida Statute § 766.118(2) limits the recovery of noneconomic damages in a medical malpractice case to $1 million, the court capped these damages accordingly.

On appeal, the plaintiffs argued that the statutory cap violates the Equal Protection Clause of Fourteenth Amendment and constitutes a taking in violation of the Constitution's Fifth Amendment. They additionally asserted that the cap violates various provisions of the Florida Constitution: (1) the guarantee of separation of powers in Article II, § 3 and Article V, § 1; (2) the right to trial by jury under Article I, § 22; (3) the right of access to the courts under Article I, § 21; (4) the right to equal protection under Article I, § 2; and (5) the prohibition against a taking of property without just compensation under Article X, § 6.

Continue reading "Capping Punitive Damages in Florida Medical Malpractice Cases - Estate of Michelle Evette McCall v. United States" »

In hospital lingo, medical errors and preventable infections are called "adverse events." In legal lingo, the term "medical malpractice" is used to describe an act of professional negligence by a health care provider in which the provider deviates from commonly accepted standards of practice, and that deviation results in injury or death to a patient. From a legal perspective, adverse events are not always equivalent to actionable medical malpractice because adverse events sometimes occur even when the hospital staff exercised the utmost diligence.

A new study published in the medical journal Health Affairs shows that about one out of every three people admitted into a hospital encounter some type of adverse event during their stay. The findings of this study suggest that incidents of medical malpractice are actually much higher than previously estimated.

Previous studies that addressed adverse events in hospitals relied heavily on voluntary methods of data collection. In other words, hospitals were trusted to accurately report on their own medical errors. The Health Affairs study used a new method to collect data, and according to the study, the actual frequency of medical errors in hospitals is ten times higher than what the federal government and hospitals had previously reported.

The editor-in-chief of Health Affairs commented on the recently published study and said, "Without a doubt, we've seen improvements in health care over the past decade, but overall progress has been agonizingly slow." The American Hospital Association (AHA) responded to the study by saying that hospitals "are dedicated to improving patient quality and safety." According to the AHA, the Health Affairs study "offers new insights that hospitals can use for quality improvements."

In related news, the US Department of Health and Human Services recently launched a new on-line tool to help patients choose and compare different health care facilities. At hospitalcompare.hhs.gov, consumers can review patient satisfaction data for local hospitals. For example, a patient contemplating a surgical procedure can compare local hospitals and hopefully make an informed decision about where to seek medical care based on data collected from previous patients. Data is currently available for dozens of Broward County health care facilities.

Continue reading "New Study Finds that Medical Errors are Grossly Underreported; On-line Tool Makes it Easy for Floridians to Compare Healthcare Facilities " »

Our Fort Lauderdale injury law firm has been following recent news of drug shortages that may affect Florida consumers. The Food and Drug Administration (FDA) and health care advocacy groups are reporting unprecedented shortages of injectable drugs, according to a recent news article. The American Society of Health-System Pharmacists (ASHP) states that the number of drugs in short supply has tripled since 2005. There are over 150 drugs currently listed on the ASHP's drug shortage bulletin, including morphine (a common painkiller), amikacin (an antibiotic for serious infections), and carmustine (a chemotherapy drug).

Drug shortages have devastating results on patients in need. The Institute for Safe Medicine Practices alleges that the current drug shortage has caused some patients to die because the right drugs were not available. Even when a substitute is available, dosing errors are more common when doctors and pharmacists are less familiar with the replacement drug.

Under current law, drug manufacturers are not required to alert the FDA to potential drug shortages. Right now, the FDA relies on drug industry tipsters and hospitals in order to identify potential drug shortages. However, the Senate is currently working on a bill that would require drug manufacturers to notify the FDA of potential shortages.

A new law on the books requiring drug companies to notify the FDA of known drug shortages would probably be a step in the right direction. The sooner the FDA knows about a shortage, the more quickly it can identify potential replacement drugs or alternate sources of the drug in short supply.

From a lawyer's standpoint, one has to wonder what effect drug shortages have on incidents of medical malpractice. While it's more understandable that doctors make mistakes with unknown or new drugs, the courts still hold doctors and pharmacists to a high professional standard. For the purposes of apportioning liability, courts require doctors to live up to accepted standards of practice within the medical community. A deviation from those standards that leads to a preventable injury may result in medical malpractice.

Continue reading "Florida Consumers Affected By U.S. Drug Shortages" »