Articles Posted in Medical Malpractice

Recently, an appellate court issued a written opinion in a case overturning a verdict that initially favored a surgical patient’s medical malpractice case. The reversal of this verdict highlights a primary element that is necessary for Florida medical malpractice plaintiffs. Here, the Supreme Court held that without sufficient evidence to show that a plaintiff’s injury was directly due to a preventable error, there is no way to ascertain causation.

SurgeryPreventable Injuries in Florida Medical Malpractice Lawsuits

Medical errors are now one of the leading causes of death in the United States and contribute significantly to non-fatal medical injuries as well. Although some differences exist among state-specific medical malpractice laws, the overriding definition is similar among all states.

In Florida, for a plaintiff to have a favorable outcome in a medical malpractice case, the first requirement is evidence that a medical professional was providing services to the patient. Following this, there must be testimony from a medical expert that the medical negligence was a result of a divergence from the standard of care. Most importantly, in Florida, it is necessary to illustrate that this medical negligence was the direct cause of the injury to the patient. If the plaintiff cannot illustrate that the prevention of this medical negligence would have also prevented their injury, the claim remains speculative at best.

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Earlier this month, a state appellate court issued a written opinion in a personal injury case discussing when summary judgment is appropriate in a car accident case involving the payment of future medical expenses. The case illustrates an important concept that is applicable in all Florida car accident cases when the at-fault driver’s insurance company disputes some aspect of the claim.

Doctor's CoatIn this case, the court determined that the expert witness testimony presented by the insurance company gave rise to a material issue as to whether the plaintiff’s continued medical care was a result of the accident. As a result, the court reversed a lower court’s decision granting summary judgment in the plaintiff’s favor.

The Facts of the Case

The plaintiff was involved in a car accident with a driver who was insured by the defendant insurance company. The insurance company acknowledged that the other driver was at fault and agreed to pay the plaintiff’s medical expenses in advance. In total, the insurance company covered approximately $53,000 of the plaintiff’s medical expenses.

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When a someone is injured due to the negligence of a medical professional, they may be entitled to recover compensation for their injuries through a Florida medical malpractice lawsuit. All Florida personal injury lawsuits, especially medical malpractice lawsuits, are subject to strict procedural requirements that must be followed. One of the most commonly encountered hurdles that Florida medical malpractice plaintiffs face is the timeliness requirement embodied in the statute of limitations.

Knee X-RayIn Florida, medical malpractice cases must be brought within two years of the date of the injury. In some cases, that timeframe can be extended if the plaintiff is young at the time of the injury or does not discover the injury until a later date. However, even under these circumstances, time is still of the essence because Florida’s statute of repose prevents a lawsuit from being filed more than four years after the injury unless there has been fraud or concealment.

A recent case illustrates how courts determine when a victim’s claim accrues – or when the clock starts ticking.

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Medical malpractice cases generally present complex scientific or medical concepts that are beyond the understanding of must jurors. For this reason, nearly all Florida medical malpractice cases require the testimony of experts to explain some of the issues in the case to the jurors. Experts can also offer their opinions about whether the care provided by a defendant doctor fell below the generally accepted standard of care.

Examination TableDue to the complex nature of Florida medical malpractice cases, Florida law places certain requirements on plaintiffs filing this type of case. One of the most important differences between medical malpractice cases and other personal injury cases is that medical malpractice cases are subject to a shorter statute of limitations. In Florida, a medical malpractice plaintiff must file their claim within two years of the incident (or, if the injury is not discovered until a later date, within two years of the plaintiff’s discovery of the injury).

A recent case presented a Florida appellate court with the chance to decide whether a plaintiff’s slip-and-fall accident should be considered a medical malpractice case.

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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.

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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.

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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.

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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.

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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.

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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.

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