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Articles Posted in Medical Malpractice

The procedural requirements for successfully pursuing a Florida medical malpractice claim may be complicated and confusing to victims of medical malpractice. Plaintiffs must be sure they are pursuing a case in the proper venue against any appropriate defendants. Additionally, plaintiffs must initiate their claim within the statute of limitations period and also meet several pre-suit notice requirements that can appear frivolous. These procedural requirements are far from frivolous, however, because a plaintiff’s failure to fulfill any of the requirements could be permanently fatal to their claim, irrespective of whether the defendant committed malpractice or not. A recent opinion published by the Florida District Court of Appeal discusses the issue of pre-suit notice requirements of a Florida medical malpractice claim.

The plaintiff in the recently decided suit received treatment from the defendant after suffering injuries while incarcerated. According to the facts discussed in the appellate opinion, the plaintiff alleged that the defendant committed medical malpractice by making mistakes during a surgery performed on the plaintiff, which caused permanent damage. The plaintiff pursued a medical malpractice claim against the defendant based on the alleged negligence.

Florida law requires medical malpractice plaintiffs to meet certain pre-suit notice requirements in order to have their claims heard by the court. In addition to other notice requirements, plaintiffs must notify each defendant by certified mail that they are being sued for medical malpractice and include an authorization form to release the plaintiff’s medical records for the upcoming suit. If these notices are not properly sent to each defendant within the two-year statute of limitations for a Florida medical malpractice claim, a plaintiff’s suit can be dismissed without any analysis of their actual claims.

Florida medical malpractice and product liability laws allow injury victims to hold negligent parties liable for their injuries. Many cases involve the interplay of both of these areas of the area, which enhances the complexity of these lawsuits. Florida’s strict medical malpractice and product liability laws impose significant burdens on injury victims. For example, claimants must prove that a medical professional breached a standard of care and the breach was the “proximate” or “actual” cause of the victim’s damages. However, in some cases involving defective products, there is no requirement to show the manufacturer breached a duty. Plaintiffs must meet all procedural and evidentiary requirements to avoid the dismissal of an otherwise legitimate claim.

In most cases, Florida medical malpractice and defective product claims hinge on an expert witness’s testimony. After several years of constant flux regarding the appropriate expert witness standard, in 2019, the Florida Supreme Court stated that the state follows the Daubert standard for the admission of expert testimony. Under Daubert, the trial judge maintains the discretionary gatekeeping function to determine whether an expert’s testimony is reliable and relevant. Specifically, the rule explains that an expert is qualified by knowledge, skill, or technical training and education to form an opinion. A court may qualify an expert if:

  • Their credentials will help the fact finder understand relevant evidence;

Recently, a medical malpractice plaintiff appealed a trial court’s order granting summary judgment in favor of a hospital system. The case arose when the plaintiff visited a Florida hospital for appendicitis and an abscess. An on-call surgeon met with the plaintiff; however, the plaintiff felt uneasy with the surgeon and requested another doctor. The next doctor was not available until the next morning, so the plaintiff proceeded with the surgeon. The plaintiff requested antibiotics after the surgery, but the surgeon explained that they were unnecessary. However, the plaintiff suffered a serious postoperative infection. He filed a lawsuit against the doctor and the hospital. The hospital argued that the doctor was an independent contractor, and not an employee or agent of the hospital.

Under Florida’s vicarious liability laws, an employer may be liable for the negligence of the employees committed within their employment scope. In cases involving hospitals and independent contractor physicians, a hospital may still be liable if the hospital “cloaked her with apparent authority to act on its behalf.” Apparent agency exists if the plaintiff can establish three elements.

The three elements of an apparent agency inquiry are:

A Florida appellate court recently issued an opinion addressing whether a plaintiff could hold a university teaching hospital liable for medical malpractice. The main issue turned on whether sovereign immunity protects the university teaching hospital involved in the case.

In 2004, the university and healthcare system agreed to an affiliation contract that provided that the woman’s treating doctor was a university faculty member and employee. The agreement included an agreement between the doctor and the healthcare system, where the doctor would treat the system’s indigent patients. In 2011, the Florida lawmakers amended 768.28, Florida Statutes, thereby replacing the 2004 affiliation agreement. The amendment covered all patients’ care and provided that all university employees and faculty were acting as an agent of the healthcare system.

The record indicates that the woman received treatment for an illness with several doctors employed by a teaching hospital where the university provides healthcare services. She alleged that her doctors’ failure to prescribed appropriate medication resulted in her disabilities. The plaintiff filed a medical malpractice lawsuit against several parties, including the healthcare system, the university, and her treating physician. In response to the medical malpractice lawsuit, the university contended that they were entitled to immunity under Florida’s sovereign immunity statutes.

Under Florida law, dentists and dental surgeons may be liable for medical malpractice if their negligence causes disfigurement, damage, or harm to their patients. Individuals who suffer injuries because of their dentist’s negligence must meet specific requirements to recover compensation. Generally, there are four elements to a Florida dental malpractice lawsuit, the duty of care the dentist owed the patient, whether they breached that duty, the injury the victim suffered, and the damages the victim incurred. These lawsuits require a thorough and comprehensive understanding of various substantive and procedural rules, and it is essential to contact an attorney to discuss how to pursue your claim successfully.

The first element of a dental malpractice claim requires the patient or their loved one to prove that the dentist owed them a duty of care. In these cases, the standard duty of care is that of which any other ordinary, prudent, similarly situated dentist would be under. A breach of the standard of care occurs when the dentist fails to meet this standard. However, in some situations, a patient may suffer an unwanted result that was not necessarily due to the dentist’s negligence.

Next, plaintiffs in these cases must be able to establish that there was a causal relationship between their injuries and the dentist’s breach. Essentially, the plaintiff must be able to provide evidence that their injuries would not have occurred but for the dentist’s negligent conduct. Many dental medical malpractice claims stem from failed procedures, erroneous extractions, nerve damage, tooth damage, disfigurement, and exposure to harmful chemicals.

Recently, a Florida appellate court issued an opinion in a consolidated case against a hospital and behavioral health company. The defendants petitioned the court to review a trial court’s orders denying their motions to dismiss a plaintiff’s claim against them. The defendants argued that the court should dismiss the claims because the plaintiff did not comply with Florida’s medical malpractice presuit requirements.

According to the court’s opinion, the case arose after a personal representative of the deceased filed a negligence lawsuit against the defendant. The family claimed that the plaintiff was transferred from a hospital to a residential treatment facility (RTF) operated by the behavioral health company. During her hospital stay, the woman received several medications; however, at transfer, the hospital provided the RTF with prescriptions but not the actual medications. The RTF did not administer the medicines, and the plaintiff died as a result of medical withdrawal.

The plaintiff’s lawsuit claimed that both entities were negligent because they knew or should have known that the failure to administer medication would likely result in life-threatening injuries. The defendants argued that the case was not sound in ordinary negligence, but rather medical malpractice. As such, because the plaintiff’s claim did not comply with Florida’s requirements, the trial judge should dismiss the complaint. The trial judge denied the motions; however, they noted that the case was a “close call.”

Recently, the Board of Trustees of the University of South Florida (USF), appealed a final judgment in favor of a plaintiff in a medical malpractice lawsuit. According to the court’s opinion, the plaintiff underwent abdominal surgery at Tampa General Hospital. USF employed the surgeon that performed the plaintiff’s surgery. Post-surgery, the woman’s condition quickly deteriorated, and she was transferred to the intensive care unit (ICU). The plaintiff alleged that during this time, her surgeon and a critical care team oversaw her care. After some time, the critical care team determined that her condition was likely an infection. The critical care team administered antibiotics, and the woman underwent a second surgery. The surgeon who performed the surgery discovered that there was a perforation in the woman’s bowel. The woman suffered severe life-altering injuries, which required several surgeries and long-term hospitalization and rehab.

The plaintiff filed a medical malpractice claim against her original surgeon, the hospital, and USF. The critical care team settled with the woman before trial. At trial against USF and the hospital, the plaintiff claimed that the surgeon perforated her bowel, and her injuries were the result of the failure of everyone involved in her treatment. The woman presented an expert who testified that she would not have suffered long-term injuries if the woman received timely antibiotic treatment.

USF countered that their surgeon was not negligent, and even if he was, the woman’s injuries were not the result of his negligence. Instead, they claimed that the plaintiff’s injuries were the result of the critical care team’s failure to administer antibiotics at the appropriate time. Further, the surgeon denied perforating the woman’s bowel and argued that the injury occurred after surgery. Moreover, both parties’ experts opined that even if the bowel injury occurred during an operation, that was not a departure from a standard of care. At the close of the evidence, the trial court dismissed the hospital from the case. USF argued that if the jury found them liable, the jury should consider apportioning liability to the critical care team.

A Florida appellate court recently issued an opinion in a consolidated petition addressing whether a claim stemming from an emergency room physician’s failure to transfer a patient for financial gain is sound in medical malpractice. According to the record, the decedent visited an emergency room for treatment for several medical conditions. While she was there, the emergency room physicians determined that she needed to be admitted to the intensive care unit (ICU). However, the hospital’s ICU was at capacity, so instead of transferring the woman, they left her in the hallway for several hours, where she eventually died.

The family filed a lawsuit against the hospital, alleging that the only reason they admitted the decedent was to generate hospital revenue. Further, they contended that this decision led to her treatment by the physician who caused her death. The plaintiffs filed the lawsuit before engaging in the pre-suit investigation process, required by Florida law.

Under Florida law, medical malpractice plaintiffs must abide by specific filing deadlines and procedural requirements. Florida statute of limitations imposes a deadline by which a plaintiff must file a lawsuit against a negligent health care provider. Typically, plaintiffs must file their lawsuits within two years of discovering the injury or when they should have reasonably discovered the injury. Still, the lawsuit cannot be filed more than four years from when the negligent conduct occurred. There are some exceptions when the health care provider engages in fraud to conceal their malpractice. Additionally, there are certain exceptions for minors or those who lack capacity.

Late last month, a Florida appellate court issued an opinion in a consolidated medical malpractice case against a behavioral health agency and hospital. The case involved the question of whether the plaintiff’s claim was based in medical malpractice. If so, the plaintiffs did not comply with the procedural requirements, so the case would be dismissed. However, if the court determined that the claim was one of ordinary negligence, the additional requirements of a Florida medical malpractice case would not apply.

According to the court’s opinion, a woman was transferred from a hospital to a residential treatment facility (RTF), operated by a behavioral health agency. The plaintiffs allege that, before the transfer, the hospital was providing the woman with seven medications. Upon transfer, the hospital provided the facility with prescriptions for the medicines, but failed to provide the medication. The RTF did not provide the woman with her medications, resulting in her death from “severe withdrawal syndrome.” The plaintiff, the estate of the deceased woman, alleged that the agencies were negligent because they knew or should have known that sudden withdrawal from these medications would likely cause a life-threatening danger to the woman.

In response, the defendants moved to dismiss the complaint because the plaintiff failed to comply with Florida’s medical malpractice pre-suit requirements. The plaintiffs argued that their claims arose from ordinary negligence and not medical malpractice, and therefore they did not need to abide by the medical malpractice notice requirements. The trial judge agreed, and dismissed the defendants’ argument, leading them to petition the court for certiorari review.

Under Florida medical malpractice laws, individuals who suffer injuries because of a negligent physician, nurse, or another healthcare provider may file a lawsuit against the offending party to recoup their damages. These legal proceedings are often adversarial and onerous and require a thorough understanding of complex statutes and regulations. Even though many Florida medical malpractice cases will end in a negotiated settlement, the preparation leading up this result is the same as if the case is going to trial.

In many situations, a party may ask the court to grant them summary judgment and rule in their favor before the trial even begins. This is an integral part of pre-trial proceedings, and these motions often rely on expert witness testimony. The parties will typically present the testimony of expert physicians that will testify to applicable standards and whether there was a breach of the standard of care that the defendant owed. The party opposing the motion for summary judgment must be able to establish that there is a genuine issue of material fact that must be resolved. The sufficiency of a motion for summary judgment often hinges on the expert’s opinion.

For example, recently, a Florida medical malpractice victim appealed a lower court’s ruling granting a hospital’s summary judgment motion. In that case, a man filed a lawsuit against a medical facility, alleging that they were negligent during his cardiac bypass surgery. The man argued that he suffered severe injuries, including a double amputation of his legs, because the facility failed to remove recalled heparin from their medical supplies. The hospital moved for summary judgment, reasoning that the victim did not prove that the facility administered contaminated heparin to the plaintiff.

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