Articles Posted in Medical Malpractice

Earlier this month, the state’s Supreme Court issued a Florida medical malpractice opinion that will likely have a great impact moving forward. The case required the court to consider a patient’s right to privacy following an alleged medical malpractice event. Specifically, it addressed whether the patient loses their right to privacy in certain medical records once the patient dies. The court ultimately held that a patient’s right to privacy survives after death and may be asserted by a family member bringing a Florida wrongful death lawsuit.

Magnifying GlassThe Facts of the Case

The plaintiff was the surviving spouse of a man who died while in the care of the defendant physician. The plaintiff filed a medical malpractice lawsuit against the defendant doctor, and in response, the doctor requested certain medical records pursuant to the rules of discovery.

The particular rules of discovery invoked by the defendant required the plaintiff to disclose all of the health care providers that her husband saw in the years leading up to his death. Furthermore, the rules actually allowed for the defendant to have secret meetings with the medical care providers in the absence of the plaintiff or her attorney.

Continue reading →

Back in 2004, Florida citizens amended the Florida Constitution to include a “right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” This amendment became known as Amendment 7. In a recent Florida medical malpractice case, the state’s Supreme Court issued an opinion discussing the breadth of the amendment and whether common-law privileges held by medical providers can override the reach of Amendment 7.

Medical RecordsThe Facts of the Case

The plaintiff underwent a laparoscopic cholecystectomy procedure that was conducted by the defendant doctor. During the procedure, the plaintiff’s bile duct was severed. The plaintiff filed a medical malpractice lawsuit against the defendant, claiming that the doctor was negligent in performing the surgery. The plaintiff also named the medical center where the procedure was performed as a defendant.

During pre-trial discovery, the plaintiff requested certain documents from the defendant, including records of other adverse medical events that occurred at the defendant medical center. The defendants objected to the plaintiff’s request for discovery, claiming that several privileges attached to the documents and that therefore they were not subject to the rules of discovery.

Continue reading →

Claims of medical negligence in Florida are subject to strict rules that, if ignored, may result in a case getting prematurely dismissed before it is ever even heard by a jury. For example, Florida medical malpractice cases must be filed within a certain period of time, as outlined in the relevant statute of limitations. In addition, Florida medical malpractice claims must be accompanied by a pre-suit affidavit filled out by a medical professional, stating that the plaintiff’s case has merit in the professional’s opinion. Also, medical malpractice plaintiffs must take care to adequately allege the specific acts on which they are basing their case. A recent medical malpractice case out of Rhode Island illustrates how a plaintiff’s failure to comply with these procedural rules may result in unfavorable results.

SurgeryThe Facts of the Case

The plaintiff – a breast cancer survivor – decided to undergo reconstructive breast surgery. She discussed the idea with the defendant doctor, who explained the risks involved with the procedure. Specifically, due to the radiation that the plaintiff received in her left breast to treat the cancer, she was at an elevated risk of having complications on that breast.

The plaintiff initially agreed to have surgery on both breasts, despite the risks. However, in her complaint, she claims to have changed her mind and have decided to only proceed with the surgery on her right breast. She claims to have let the defendant know of her decision. The defendant’s version of the events is different. He claimed that the plaintiff never changed her mind, or if she did, he was not made aware of her decision to do so.

Continue reading →

Before a doctor is able to perform any kind of non-emergency medical treatment, she must first obtain the patient’s consent. However, since the medical field can be so complex and the stakes so high, courts have held that physicians must do more than simply have a patient check a box indicating consent. Generally speaking, a doctor must fully inform the patient of the risks involved with the procedure in order to obtain informed consent. In Florida medical malpractice cases, if a doctor fails to obtain informed consent, and the patient suffers an injury as a result, the doctor may be liable under a theory of medical battery.

Surgical ErrorFlorida law imposes several requirements that a plaintiff must overcome before establishing liability. For example, even if the doctor failed to obtain informed consent, if the medical procedure was one that a reasonable patient would have consented to undergo, the doctor may not be liable. A recent case from nearby Oklahoma presented an interesting issue for the court to consider:  whether the patient must be informed of who will be assisting during the surgery.

The Facts of the Case

The plaintiff was a patient of the defendant doctor. During the course of the plaintiff’s treatment, the defendant recommended that the plaintiff undergo a total laparoscopic hysterectomy. The plaintiff agreed and scheduled the surgery.

Continue reading →

Earlier this year, an appellate court in Iowa issued a written opinion in a medical malpractice case discussing the interesting topic of whether a plaintiff should be permitted to bring a medical malpractice case seeking compensation for the wrongful birth of a child. Ultimately, after surveying the laws of other states and taking into account the evolution of medical care, the court concluded that the plaintiff couple should be permitted to bring the lawsuit.

Pregnant WomanThe Facts of the Case

The plaintiffs were expecting a baby boy. The defendants were several doctors who had provided the plaintiffs with pre-natal medical care throughout the pregnancy. A few months into the plaintiff-wife’s pregnancy, an ultrasound was performed with one of the defendant doctors reviewing the results.

The ultrasound indicated that the couple’s unborn son had a small head. Specifically, the circumference of the baby’s head was within the third-to-sixth percentile. However, that was never made known to the plaintiffs, and no further tests were performed.

Continue reading →

Earlier this month, the District Court of Appeal for Florida’s Fourth Circuit issued an interesting written opinion in a medical malpractice case requiring the court to determine if a medical release waiver signed by the plaintiff should prevent the plaintiff’s medical malpractice case from proceeding to trial. Ultimately, the court concluded that the waiver’s language was vague and would not necessarily inform the signer which rights they were giving up by signing the document. As a result, the waiver was deemed invalid, and the plaintiff’s case was permitted to proceed.

Tight ContractThe Facts of the Case

In 2013, the defendant performed spinal surgery on the plaintiff. Prior to the surgery, however, the defendant doctor requested that the plaintiff sign a medical release waiver. The waiver stated that the doctor does not carry malpractice insurance and that by signing the waiver, the plaintiff agreed not to file a lawsuit against the doctor because the plaintiff understands that the defendant “will do the very best to take care of me according to community medical standards.” The plaintiff signed the agreement, and the surgery was performed.

During the surgery, the plaintiff’s ureter was cut, causing significant injuries. Notwithstanding the medical release waiver, the plaintiff filed a medical malpractice claim against the doctor. Not surprisingly, the doctor responded by asking the court to dismiss the case based on the plaintiff’s agreement not to sue in the event anything went wrong.

Continue reading →

Medical malpractice cases comprise a large portion of the cases that are filed in Florida courts each year. To help courts sort through the claims, and to ensure that only meritorious claims are presented to the court, the Florida legislature has implemented a requirement that all medical malpractice lawsuits must be filed with an accompanying certificate of counsel. The certificate must state that counsel has conducted a reasonable investigation into the case and that the plaintiff’s theory of liability is supported by at least one medical expert’s opinion. A failure to file this certificate may result in the dismissal of an otherwise meritorious case.

Pills in HandA recent decision issued by a Vermont appellate court illustrates what can happen if a plaintiff fails to file the required certificate.

The Facts of the Case

The plaintiff was the surviving loved one of a woman who had died after ingesting a lethal combination of prescription and non-prescription medication. After the plaintiff discovered how her loved one had died, she filed a wrongful death lawsuit against the doctor who had prescribed the deceased woman the prescription medication. According to the court’s opinion, the doctor had prescribed several different types and doses of opioid medication.

Continue reading →

The Florida Supreme Court recently determined that a plaintiff who undergoes a procedure and has a foreign object left in their body is always entitled to a presumption of negligence. Before this decision, a federal appeals court had decided that a plaintiff was not entitled to the presumption where direct evidence of negligence exists. The Florida Supreme Court’s decision changed in this most recent opinion, making it easier for Florida plaintiffs to recover.

Surgeon's ToolsFacts of the Case

In 2011, a man was admitted to a hospital for a surgical procedure. During the procedure, the surgeon inserted a drainage tube into his abdomen. These tubes are normally removed after surgery. The tube was removed a few days later, but a section of the tube was accidentally left inside his abdomen.

After the man began experiencing pain in his abdomen, a CT scan showed that the section of the tube was still in his body. The man then had a second surgery to have the tube removed.

Continue reading →

Earlier this month, a West Virginia appellate court issued a written opinion in a slip-and-fall case illustrating one of the difficulties plaintiffs may encounter when their injury occurs at a hospital or doctor’s office. The issue in the case was whether the plaintiff’s slip-and-fall case should have been characterized as a premises liability case or a medical malpractice case. Ultimately, the court held that since the injury occurred while the plaintiff was seeking “health care related” services, the case was properly considered a medical malpractice case.

Exam RoomThe case involved an elderly woman who accompanied her husband to an urgent care facility. After the couple arrived and checked in, they were shown to the examination room by a medical assistant. The medical assistant instructed the patient to get onto the examination table and wait for the doctor to arrive. As the man attempted to climb onto the table, he fell, landing on his wife. Shortly after the incident, the man died from complications related to the injuries he sustained in the fall.

The man’s wife filed a personal injury case against the urgent care facility under a premises liability theory. However, the urgent care facility claimed that the case should have been brought under the state’s medical malpractice statute, arguing that it was “related” to the provision of health care services. The court agreed.

Continue reading →

“Better late than never” is not always true in the legal world. Sometimes, failing to object to an issue in a case may mean being barred from raising the issue at a later date. In a recent case, one state’s supreme court found a defendant’s claim that the plaintiff’s affidavits were filed late could not be raised on appeal and had been waived.

HospitalIn that case, a man had filed a medical malpractice claim against a hospital, alleging he was mishandled by an occupational therapist during a post-operative stay at the hospital and that he became quadriplegic as a result. The case went to trial, and the jury found the hospital was negligent in caring for the man but that it did not cause his quadriplegia. The man later died, and his wife took his place in the lawsuit.

The wife requested a new trial because her husband’s autopsy purportedly contradicted the jury’s decision on causation. The wife filed required affidavits from experts explaining the significance of the autopsy report, but she failed to pay the required filing fee. Two days later, the court canceled the time stamp and did not process the submissions, at which time the filing date had passed. The next day, the wife’s submissions were stamped as received with the required filing fees, and the affidavits were filed four days later. Importantly, the hospital did not object to the memorandum or affidavits as being untimely at the time. The court then granted the motion for a new trial based on the new evidence.

Continue reading →

Contact Information