Articles Posted in Medical Malpractice

When a person suffers injuries because of the negligence of a medical provider, the victim or their representative may file a Florida medical malpractice lawsuit to recover compensation for the damages that they sustained. Incidents of medical malpractice occur more frequently than people may realize. In addition to death, the most common reasons for medical malpractice claims include severe and pervasive brain damage resulting in lifelong care. In most cases, medical malpractice relates to diagnosis errors, surgical errors, and general treatment.

Florida law provides that medical malpractice victims may seek three main types of damages from the negligent health care provider:  compensatory, non-economic, and punitive damages. Victims may be entitled to compensatory damages to cover tangible losses, such as medical expenses and lost wages. By contrast, non-economic damages are designed to address losses related to pain and suffering. Courts rarely permit punitive damages, and these damages only apply in situations in which the provider engaged in gross negligence.

These damages are only available if the lawsuit is timely filed. Under Florida law, medical malpractice victims must file their lawsuit within two years of discovering their injuries and no later than four years after the incident. However, there are certain crucial exceptions in specific incidents of medical malpractice.

Recently, a Florida appellate court addressed the statute of limitations in Florida medical malpractice lawsuits. The appeal stemmed from a complicated medical malpractice case involving the birth of a baby born with brain injuries, allegedly because of negligent care by a hospital and physician. Following delivery, doctors told the parents of the baby that their child needed to remain in the hospital for an additional 10 days because of an infection. Before releasing the baby, the hospital performed a head ultrasound and reported that the findings were unremarkable. In the months following discharge, the plaintiff suspected that something was wrong with her child because he was not meeting developmental milestones.

For approximately the next year, the mother took the child to various specialists, all of whom diagnosed the baby with other mild and common conditions. However, in 2011, the family retained an attorney, who filed a petition with NICA, Florida’s Birth-Related Neurological Injury Compensation Association, on behalf of the child. It was not until the baby was three years old that a doctor diagnosed him with spastic cerebral palsy, which is typically caused by a lack of oxygen during delivery. With this information, the family filed a medical malpractice lawsuit against the hospital and physician. The hospital filed a motion for summary judgment, arguing that the statute of limitations barred the case.

Generally, under Florida law, medical malpractice lawsuits must abide by the state’s two-year statute of limitations. The two years begin to run from when the patient knew or should have known that an injury occurred because of medical malpractice. Additionally, the state’s statute of repose provides that, barring exceptional circumstances, health care professionals cannot be liable for medical malpractice more than four years after the incident occurs. There are specific exceptions to this statute, which are relevant when there are incidents of fraud, misrepresentation, or concealment.

Under Florida law, health care providers owe a duty to their patients. This duty requires doctors, nurses, and other medical professionals to provide a certain level of care to their patients. When a medical professional fails to live up to this duty, and a patient is injured as a result, the patient may be able to pursue compensation through a South Florida medical malpractice lawsuit.

Medical malpractice claims can be complex, and they often raise several unanticipated issues. One of the most critical early decisions that an injured patient must make is which parties to name as defendants. Of course, the medical professional whose negligence resulted in the patient’s injuries is an obvious choice. However, there may be other parties that can be named to improve a plaintiff’s chance of recovering compensation for their injuries.

This stands true for all Florida personal injury cases. And a common source of liability is an at-fault party’s employer. For example, under the doctrine of respondeat superior, an employer can be held liable for the negligent acts of their employee. Thus, employers are routinely named as defendants in cases involving an employee’s negligence. However, most medical professionals are legally classified as contractors rather than employees, making a respondeat superior claim difficult, if not impossible.

Infants, children, and young teenagers are susceptible to a wide array of medical and health issues that can have lifelong and potentially fatal outcomes. Although safe and swift medical treatment is important for all individuals, it is crucial for populations that are unable to articulate their symptoms or effectively advocate on their behalf. When medical professionals fail to appropriately treat young children, they may be liable under Florida’s medical malpractice statutes.

Florida law requires that medical professionals adhere to a reasonable standard of care when treating their patients. When a physician or other health care provider diverges from this standard of care, either by their action or by their failure to act, they may be liable to compensate their patients for the damages that they suffered. Under Florida’s medical malpractice statute, medical professionals owe children a “substantial duty of care.” This heightened standard means that these professionals must act reasonably in all aspects of their handling of the child’s medical care.

The American Academy of Pediatrics (AAP) lists pediatric medical malpractice lawsuits as one of the most common types of medical malpractice lawsuits brought against medical professionals. Some common incidents that result in medical malpractice are birth injuries, failures to diagnose, misdiagnoses, prescription errors, defective laboratory equipment, and surgical complications.

Most Florida medical malpractice claims involve a medical professional and their patient. Yet some cases have raised the issue of whether other people can bring a claim against a medical professional where the plaintiff suffered an injury because of the professional’s negligent professional conduct.

In May 2016, a man was driving his truck on a highway when he crashed with a horse-drawn hay trailer, killing one passenger and injuring the other four passengers. In April 2015, the man had been declared blind and instructed not to drive. However, about six weeks before the crash, a doctor told the man that his vision had improved, and that could drive, with some restrictions. After the collision, the plaintiffs argued that the doctor was liable for their injuries because the man’s vision was still below the minimum vision standards required to drive according to state law. The plaintiffs argued that the doctor owed a duty to the injured parties to warn the man that his vision did not meet the standards to drive under state law.

In that case, the court considered whether the doctor could be held liable in such cases. The court found that it was somewhat foreseeable that a person who drivers with impaired vision might cause a car accident. However, the eye doctor did not treat or provide medication to the patient that led to his vision impairment. In addition, the court found the public policy concerns persuasive, such as how the imposition of a duty might affect the doctor-patient relationship, and such a duty would lead to higher health care costs. Therefore, the court found a doctor does not have a duty to third parties based on a doctor’s failure to warn a patient about driving risks resulting from the patient’s medical condition. However, the court found that the injured passengers could still sue the doctor because the driver had agreed to assign his medical malpractice claim and any recovery to the injured passengers.

Florida medical malpractice claims require extensive work and resources. In a recent medical malpractice case before a federal appeals court, the court had to consider whether a $7 million dollar verdict could stand against a doctor after a baby suffered permanent brain damage after her birth.

Evidently, the baby was born with severe respiratory issues and developed permanent brain damage. The baby was born at a hospital that did not have a neonatal intensive care unit (NICU), and did not have all of the equipment found in a NICU. Babies that needed specialized care were often transported to a nearby hospital with a NICU. This baby showed signs of respiratory distress immediately after she was born. She was provided with supplemental oxygen, and the doctor left for a few hours. The baby was not improving, and the doctor first decided to transfer the baby to the nearby NICU. However, a new neonatologist specialist at the hospital said that a transfer was not necessary, and agreed to take the baby on as a patient.

The baby’s condition continued to deteriorate, and she was eventually transferred the next day to the NICU, and stayed for almost a month. The baby’s mother filed a lawsuit alleging that the first doctor and others were at fault for the baby’s permanent brain damage. The mother claimed that the doctor should have transferred the baby from the hospital where she was born to a hospital with a neonatal intensive care unit that could have provided the baby with the care she needed. The other defendants settled the suit with the mother, but the case against the doctor went to trial, and the court awarded the mother over $7 million in damages.

While filing any personal injury case can be complicated, Florida medical malpractice cases have an exceptionally complex set of procedural requirements. If a plaintiff fails to follow these exacting requirements, the court will likely dismiss their case, potentially leaving the plaintiff without any remedy for their injuries.

When discussing the requirements of a medical malpractice lawsuit, perhaps the best place to start is with the Florida medical malpractice pre-suit requirements. Before an injury victim can file a medical malpractice case, they must provide notice to each of the defendants named in the lawsuit. The plaintiff must attach an affidavit from a medical professional stating that the plaintiff has a valid medical malpractice claim.

Once the defendant receives the plaintiff’s pre-suit notice, there is a 90-day period in which the defendant must investigate the claim and determine whether they will contest the allegations or agree to settle the claim. During these 90 days, the statute of limitations is tolled. If the defendant denies liability, the plaintiff will have 60 days from that date, or until the end of the statute of limitations, to file a formal case against all defendants.

When a patient is injured after receiving negligent medical care, they may be able to pursue a Florida medical malpractice lawsuit against the medical professionals they believe to be responsible for their injuries. Florida medical malpractice lawsuits, however, are subject to several additional requirements that can be burdensome for many prospective plaintiffs. For example, before filing a medical malpractice lawsuit, a plaintiff must determine that there are “reasonable grounds” for their claim by conducting a pre-suit investigation.

There are several other differences between medical malpractice cases and traditional negligence cases. For example, due to Florida’s medical malpractice damages cap, the number of damages available to medical malpractice plaintiffs are capped at a lower amount than damages in traditional negligence claims. Finally, the stature of limitations in a Florida medical malpractice lawsuit is just two years, whereas the statute of limitations for traditional personal injury cases is four years.

That being said, most Florida injury victims would prefer that their case be classified as one of traditional negligence. However, when a case arises in a quasi-medical setting, defendants routinely try to categorize a plaintiff’s claim as a medical malpractice claim. Depending on the nature of the claim, the stage of litigation, and the amount of time that has passed, this could completely defeat a plaintiff’s chance at recovering for their injuries. A recent case illustrates the types of arguments defendants make in hopes of successfully categorizing the plaintiff’s claim as one of medical malpractice.

Earlier this year, a state appellate court issued a written opinion in a Florida medical malpractice case requiring the court to determine whether the plaintiff’s three expert affidavits were sufficient to comply with the requirements of Florida Statutes 766.102 outlining the expert affidavit requirement.

Florida’s Expert Affidavit Requirement

Under Florida law, a plaintiff bringing a Florida medical malpractice claim must conduct a pre-suit investigation to “ascertain whether there are reasonable grounds to believe that the defendant medical provider was negligent, and that the negligence resulted in injury to the claimant.” In addition, a plaintiff must obtain an expert affidavit from a qualified expert stating that the expert has reviewed the plaintiff’s case, and that it has merit.

The Facts of the Case

According to the court’s opinion, the defendant orthopedic surgeon performed a hip-replacement surgery on the defendant. During the operation, the defendant fractured the plaintiff’s hip. The plaintiff filed a Florida medical malpractice claim against the orthopedic surgeon. In support of her claim, the plaintiff presented three expert witness affidavits from an emergency room physician, a radiologist, and a nurse.

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Recently, a state appellate court issued a written opinion in a case discussing one of the most complex and contested elements in Florida medical malpractice cases. The case required the court to explain the causation requirement as it applies to Florida medical malpractice claims. Ultimately, the court remanded the case to the lower court based on the lower court’s application of an incorrect legal principle.

The Facts of the Case

According to the court’s recitation of the facts, the plaintiff noticed a large mass on the back of her head and went to her primary care doctor for an evaluation. That doctor determined that the mass was a tumor and referred the plaintiff to a surgeon. The surgeon diagnosed the mass as an osteosarcoma, and determined that it was close to pressing upon her brain. Thus, the surgeon recommended the plaintiff undergo surgery to de-bulk the tumor. However, before he ordered the surgery, the surgeon ordered several tests to make sure the plaintiff’s body could handle the surgery.

Evidently, the test results came back abnormal. However, the plaintiff’s primary care physician cleared her for surgery nonetheless. On the morning of the surgery, the plaintiff’s anesthesiologist was running late, so she was seen by another anesthesiologist (the defendant) who quickly reviewed the plaintiff’s test results. However, the defendant only saw some of the abnormal results. The defendant determined that, from what he saw, everything seemed fine. In the middle of the pre-anesthesia interview, the plaintiff’s anesthesiologist showed up, and began the evaluation from the beginning.

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