Medical Malpractice

How Hospitals and Administrators May be Responsible for Extra Damages in Cases of Egregious Medical Malpractice

Published on: July 30, 2024 | by Friedman, Rodman & Frank, P.A.

In Florida, the legal framework surrounding medical malpractice is designed not only to make victims of medical negligence whole but also to allow for various types of damages based on the severity of the misconduct involved. While the primary goal is to compensate victims for their losses and restore them to their pre-malpractice condition as closely as possible, Florida law also provides avenues for additional damages. This includes non-economic damages for pain and suffering, as well as punitive damages intended to punish egregious behavior and deter future misconduct. A recent appellate court decision illustrates how these statutes are applied, especially in cases involving severe professional misconduct.

The case in question began with a surgical procedure gone terribly wrong. A patient underwent an appendectomy, a routine operation to remove an inflamed appendix, only to suffer a severe and damaging error: the surgeon mistakenly removed the patient’s healthy ureter instead. This mistake necessitated three additional surgeries to correct the error, including the removal of the inflamed appendix, the placement of a nephrostomy tube to ensure proper kidney function, and reconstructive surgery to reconnect the damaged ureter. The severity of these procedures and their impact on the patient’s health and life were considerable.

The surgeon responsible for this botched surgery had a troubling history that should have raised red flags for the hospital administration. This surgeon had been involved in numerous malpractice lawsuits and had faced disciplinary actions from medical boards in both Florida and California due to his unsafe practices and severe alcohol abuse. Despite this history, the hospital continued to renew the surgeon’s credentials, allowing him to perform surgeries unsupervised. The patient’s legal team argued that the hospital’s actions—or lack thereof—were so grossly negligent that punitive damages were justified. They contended that the hospital’s failure to act on the surgeon’s known incompetence demonstrated a conscious disregard for patient safety.

Florida Appeals Court Reverses Lower Court Decision in Medical Negligence Case

Published on: April 17, 2024 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Second District Court of Appeals in Florida issued an opinion in an appeal involving a dispute between a patient, Michael Barber, and a hospital, Manatee Memorial Hospital. Barber challenged the trial court’s final summary judgment entered in favor of Manatee Memorial Hospital in Barber’s medical negligence action against the hospital. Barber sustained bilateral hip fractures while unconscious in the Manatee Memorial intensive care unit (ICU), where he was being treated for a drug overdose. Barber’s appeal involved the application of the doctrine of res ipsa loquitur to his medical negligence action. The appellate court concluded based on the facts of the case that Barber was entitled to assert res ipsa loquitur in his case and that the application of the doctrine created a genuine dispute of material facts as to whether Barber’s unexplained bilateral hip fractures were the result of Manatee Memorial’s negligence.

Facts of the Case

On September 23, 2017, Barber, who was thirty-six years old at the time, attempted to end his life by taking four different prescription medications while at home. Fortunately, he had a change of heart and called 911. When emergency medical technicians (EMTs) responded, they found Barber in his garage pacing back and forth and smoking a cigarette. During the EMTs’ assessment, Barber began to have “seizure like activity,” but according to the Manatee County Emergency Medical Services (EMS) patient record, the seizure activity lasted less than thirty seconds and Barber had “purposeful movement during [the] event.” Barber was taken to the emergency department at Manatee Memorial. While there, Barber submitted to a psychiatric consultation. The notes from that consultation indicate that “[patient] walked from stretcher to ER stretcher.” Dr. Ghobrial’s Hospital History and Physical Report repeats that fact. The emergency department notes do not contain any indication that Barber complained of pain of any kind but do specifically state that the results of a musculoskeletal exam showed a normal range of motion, which a Manatee Memorial nurse testified at deposition referred to both upper and lower extremities.

Florida Appellate Court Affirms ALJ Opinion in Oxygen Deprivation Birth Case, Denying Benefits

Published on: March 31, 2024 | by Friedman, Rodman & Frank, P.A.

Recently, the district court of appeals for the State of Florida Fifth District issued an opinion in an appeal involving a claim by the Appellant, Nekeisha Wilson, who petitioned for benefits from the Appellee, the Florida Birth Related Neurological Injury Compensation Association (“NICA”). Ms. Wilson and NICA agreed that the Appellant’s daughter experienced “some degree of birth-related oxygen deprivation,” but disagreed about whether the oxygen deprivation caused a brain injury that rendered the child permanently and substantially impaired. The parties stipulated that the sole legal issue for the Administrative Law Judge’s (ALJ) adjudication was whether the child “suffered a birth-related neurological injury” as defined by section 766.302(2), Florida Statutes.

Facts of the Case

The Appellant petitioned for benefits from NICA. NICA determined that the Appellant’s claim was not compensable, and the case proceeded to a hearing before ALJ. Each side presented expert deposition testimony concerning the disputed facts before an ALJ. The ALJ’s final order evaluated this testimony and the rest of the evidence, including the child’s medical records, in detail. Based on her evaluation of the evidence, the ALJ found that the child “suffered oxygen deprivation during the course of labor, delivery, and the post-delivery period.” However, the ALJ did not find that this oxygen deprivation caused a brain injury—let alone one that resulted in the child’s permanent and substantial impairment. Because the ALJ did not find the existence of a “birth related neurological injury,” the ALJ dismissed the Appellant’s petition for NICA benefits with prejudice. The Appellant appealed to the Fifth District court of appeals.

Florida Appeals Court Affirms Lower Court Decision in Medical Malpractice Case

Published on: January 20, 2024 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Third District Court of Appeals in Florida issued an opinion in an appeal involving a final summary judgment entered in favor of the defendants, appellees the University of Miami, Xue Zhong Liu, M.D. and Rebecca Rodriguez, L.P.N. After going on vacation in Florida, the patient complained of a severe earache and went to an ENT clinic operated by the University of Miami to seek medical assistance. Nurse Rodriguez took the patient’s blood pressure, which was 233/150, which constitutes severe hypertension. Dr. Liu asserts that he instructed the patient to go to the emergency room for evaluation and treatment while the patient claims that no such instruction was given. The patient did not go to the emergency room and nine days later, suffered a debilitating hemorrhagic stroke that was precipitated by an aneurysm due to the severe hypertension. The patient then filed suit, alleging that appellees caused her to have a stroke by failing to provide expeditious treatment of her severe hypertension, and by failing to inform her of the dangers of high blood pressure coupled with ear pain.

Facts of the Case

After seeking medical assistance from the ENT clinic affiliated with the University of Miami, the patient did not go to an emergency room. She claims that no instruction to go to an emergency room was given while Dr. Liu asserts that he instructed her to go to an emergency room for evaluation and treatment. The medical record reflects the following notation by Nurse Rodriguez: “Patient BP is elevated she stated it always comes up high. She has consulted with her Primary doctor.” The medical record is otherwise silent as to what occurred with respect to treatment for the hypertension. The record further reflects that Dr. Liu removed excess earwax from the patient’s ear and discharged her. Nine days later the patient experienced a debilitating hemorrhagic stroke triggered by an aneurysm due to her severe hypertension.

At trial, the patient filed a medical malpractice action against appellees alleging in her operative complaint that appellees caused her stroke by failing to provide expeditious treatment of her severe hypertension, and by failing to inform her of the dangers of high blood pressure coupled with ear pain. During the discovery process, the patient’s action transformed from a failure to treat case to a failure to refer case, arguing that the appellees should have referred the patient to the emergency room for immediate care, and that their failure to do so caused her eventual stroke. The trial court ultimately entered a final summary judgment in favor of the defendants, ruling against the patient. The patient then filed a timely appeal.

Florida Appeals Court Reverses Lower Court Decision in Medical Malpractice Case

Published on: May 21, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Fourth District Court of Appeals in Florida issued an opinion in an appeal involving a nonfinal order granting the appellee, a patient, an amended motion for leave to amend her complaint to state a claim for punitive damages against the appellant, a doctor. In the lawsuit, the patient alleged that the doctor improperly treated her using a medically unnecessary course of radiation after she was referred to him by another physician to treat a lesion on her hand. After discussing various treatments with the doctor, the patient opted for radiation treatment. The patient now alleges that the doctor’s treatment fell “well outside” the standard of care. The trial court allowed the patient to amend her complaint to add a punitive damages claim following a hearing on the motion.

The patient was referred to the doctor following a diagnosis of a lesion on her hand as squamous cell carcinoma by a different physician following a biopsy. The patient disputes whether the diagnosis was correct. After meeting with the doctor and discussing various treatment options, the patient opted for a radiation treatment plan. In the course of obtaining the patient’s informed consent, the doctor informed her that surgery was an option, but it would likely impact her ability to maintain her current lifestyle as an avid golfer. The patient agreed to the treatment plan offered by the doctor, which called for radiation treatment twice a day, with treatments sometimes occurring as little as forty-five minutes apart. The doctor alleges that he prescribes this protocol to all of his patients undergoing radiation therapy.

At trial, the patient subsequently sought leave to amend her complaint to assert a claim for punitive damages. She asserts that the radiation treatment that she received from the doctor was not recognized as acceptable in the medical community and that the doctor unnecessarily subjected her to an increased risk of cancer in her lifetime from the radiation for his own financial gain. In making this claim, the patient stated that the doctor’s actions amounted to more than mere negligence, and instead constituted behavior reflecting a conscious disregard for her life and safety. The patient included three items of evidence: 1) an attestation by her expert stating that the doctor’s treatment fell “way outside” of the standard of care; 2) the doctor’s deposition; and 3) documents of two federal cases involving the doctor that included allegations of Medicare fraud and obstruction of a criminal health care investigation. At trial, the court allowed the patient to amend her complaint to add the punitive damages claim.

Florida Appeals Court Dismisses Pro Se Medical Negligence Case Due to Statute of Limitation Issue

Published on: March 10, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Fifth District Court of Appeals in Florida issued an opinion in an appeal involving a medical negligence complaint between a pro se appellant, the plaintiff, and the appellee, South Lake Hospital, Inc. (South Lake). The plaintiff later amended her complaint to include two employees of South Lake. The plaintiff filed a pro se complaint for negligence against South Lake following a car accident she experienced in 2016 and a subsequent misdiagnosis of injury by the South Lake emergency room staff. The trial court made a final order dismissing with prejudice the plaintiff’s amended complaint for damages against South Lake

On March 27, 2016, the plaintiff was involved in an automobile accident that resulted in excruciating back pain and visible bruising on the left side of her chest. She was transported from the site of the accident to South Lake’s emergency room. The plaintiff would later allege that in the emergency room, after around two hours, she was discharged after being told that her pain was due to arthritis. The plaintiff then sought medical treatment three days later at a different medical facility, where according to her, it was discovered that she had sustained numerous fractures in her back.

In February 2020, the plaintiff filed a pro se complaint against South Lake. South Lake moved to dismiss the complaint, and following a hearing on the motion, the plaintiff was given leave by the court to file an amended complaint. In December 2021, the plaintiff filed an amended complaint, adding an emergency medicine physician and a diagnostic radiologist as parties to the suit, asserting that both were employed by South Lake “when the negligence occurred.” Following a brief, the trial court dismissed all of the plaintiff’s actions “based upon expiration of the statute of limitations.”

Florida Appeals Court Reverses Lower Court Decision in Wrongful Death Case

Published on: February 8, 2023 | by Friedman, Rodman & Frank, P.A.

In a recent case, the Fourth District Court of Appeals in Florida issued an opinion in an appeal involving a wrongful death complaint between the Appellee, the plaintiff who is a personal representative of the decedent’s estate, and the Appellants, Cleveland Clinic Florida Health System (Cleveland Clinic). The plaintiff sued Cleveland Clinic for wrongful death after the decedent was admitted to the hospital through the emergency room, and healthcare providers performed an intubation action that caused fatal brain injuries. The trial court made a non-final order granting the appellee’s motion to amend a wrongful death medical malpractice complaint to assert a claim for punitive damages.

The decedent was admitted to the hospital through the emergency room. When his condition deteriorated, healthcare providers performed an intubation action that caused fatal brain injuries. To support their claims, the appellee relied on comments purportedly made by the hospital’s chief medical officer following the decedent’s death and arguments related to the appellants’ general failure to follow current policy procedures, make changes to their policies, and use the incident as a teaching opportunity for its interns, residents, and fellows. At trial, the court ruled that proffered evidence showed the doctors and other health care providers were grossly negligent by, contrary to the emergency room physician’s recommendation, placing the decedent on a floor level with fewer observation checks, failing to attend to the decedent during the various emergency calls, and beginning intubation without proper supervision, causing the delayed intubation that led to the decedent’s death. To support the punitive damages claim against the hospital, the trial court found a jury could conclude that the hospital’s response to the incident reflects its “condonement and ratification of the provider’s gross negligence.”

On appeal, the Cleveland Clinic argues that the trial court erred in ruling that the plaintiff made a “reasonable showing” under section 768.72 to recover punitive damages. The appellate court reverses the lower court decision for two reasons. First, the appeals court found that the proffered evidence at the hearing failed to show that the healthcare providers involved were grossly negligent. Second, neither the complaint nor the proffered evidence demonstrated how the appellants’ actions either before or during the decedent’s treatment ratified or approved the healthcare providers’ alleged negligent conduct. The appellate decision stated that “appellee’s proffered evidence provided no reasonable basis for recovery of punitive damages, which are reserved ‘to express society’s collective outrage.’” Further, the opinion states that even assuming the proffered evidence demonstrated gross negligence by the health care providers, the trial court erred in finding that a jury could reasonably conclude that the appellants ratified or condoned that negligence to subject it to punitive damages. The appeals court points out that the trial court relied on conduct that post-dated the treatment of the decedent and that such actions are not admissible on the issue of punitive damages. Subsequently, the appellate court reversed the lower court order.

Properly Investigating a Florida Medical Malpractice Claim Before Filing Suit

Published on: July 18, 2022 | by Friedman, Rodman & Frank, P.A.

Victims of medical malpractice in Florida must comply with strict procedural requirements before being allowed to file a medical malpractice lawsuit. Florida law demands that a plaintiff complaining of medical malpractice perform an investigation into the reasonableness of their claim before pursuing legal action. Florida medical malpractice plaintiffs must submit a statement by a medical expert corroborating the reasonableness of the plaintiff’s malpractice claim. A plaintiff who fails to properly obtain and append such a report to their claim runs the risk of having the claim dismissed before being heard by the court. A Florida Court of Appeals recently ruled against a plaintiff on these grounds.

The plaintiff in the recently decided case is a woman who received care from the defendant in a Florida hospital complaining of abdominal pain. The plaintiff alleges that the defendant inappropriately discharged her before she obtained the needed treatment, causing her condition to worsen and eventually require surgery. The plaintiff pursued a medical malpractice claim against the defendant. As part of the pre-suit investigation process, the plaintiff obtained a statement from a gastroenterologist that corroborated the reasonableness of her claim. In response, the defendant argued that the plaintiff’s expert was not qualified because they did not work in a hospital setting. The trial judge denied the defendant’s arguments without putting any reasoning on the record, and the plaintiff’s case was set to proceed.

The defendant appealed the denial of their motion to the Florida Court of Appeals. On Appeal, the court noted that it is a statutory requirement for a trial court to put their reasoning on the record when accepting a medical expert opinion for purposes of the pre-suit investigation requirements for a Florida malpractice claim. Because the court’s ruling was not explained in the record, the Court of Appeals reversed the ruling and remanded the case to the trial court. Under this ruling, the plaintiff still may obtain relief, however, the ruling does make the process more timely and complicated.

The Presuit Requirements for a Florida Medical Negligence Lawsuit

Published on: May 1, 2022 | by Friedman, Rodman & Frank, P.A.

Florida medical malpractice claims require claimants to demonstrate that their medical provider made an error that fell below the “prevailing professional standard of care.” This standard of care varies depending on the provider’s specific care, skill, surrounding circumstances and incident. Thus, courts view the prevailing standard of care in light of the unique circumstances of the particular situation. Further, medical malpractice claims require claimants to establish causation. Even if a provider’s standard of care fell below the prevailing standard, claimants must still prove that the mistake was not inconsequential.

Medical malpractice can stem from a variety of situations. Under Florida law, misdiagnosis, surgical errors, failure to treat, anesthesia errors, medication errors, and specialist malpractice can precipitate a medical malpractice lawsuit. However, successfully recovering damages requires strict adherence to Florida’s various medical malpractice procedural and evidentiary laws.

The Supreme Court of Florida recently considered the statutory presuit notice requirement under section 766.106. In this case, the plaintiff mailed the notice before the expiration of the limitations period; however, the defendant did not receive the notice until after the period would have expired, absent tolling. At issue is whether the statute of limitations is tolled upon the claimant’s mailing of the presuit notice of intent to begin litigation.

Pre-Suit Requirements for Florida Medical Malpractice Lawsuits

Published on: February 8, 2022 | by Friedman, Rodman & Frank, P.A.

The Third District Court of Appeal in Florida recently issued an opinion in a defendant’s motion to dismiss a complaint. The plaintiff in the matter filed a lawsuit for injuries he suffered when a surgical table collapsed underneath him while he was preparing to undergo eye surgery. The victim argued that the facility breached a duty of care by warning him about the table. In addition, he contended that the facility failed to maintain and use the table properly. The defendants moved to dismiss the complaint contending that the complaint did not meet Florida’s medical malpractice statute. The trial court found that the plaintiff adequately filed the complaint under the state’s ordinary negligence statute.

Under Chapter 766, the pre-suit requirements apply to claims arising out of the medical care or services in Florida. However, Fla. Stat. 766.106(1)(a) further explains that “merely because a wrongful act occurs in a medical setting” does not automatically mean that it falls under the state’s medical malpractice statute. Instead, the wrongful act or omission must directly relate to professional judgment or skills or the improper application of medical services. Under Florida law, there is a two-step inquiry to determine whether a claim stems from medical malpractice first, whether the wrongful act arose out of medical diagnosis, treatment or care, and second whether a healthcare provider rendered the treatment.

In this case, the plaintiff alleges ordinary negligence; however, the court must decide whether the complaint sounds in ordinary negligence or medical negligence. Here, the plaintiff’s allegations relate to the collapsing table and not to anything related to medical judgment or skills. The appeals court found that the mere fact that the table was used for a medical procedure does not amount to a medical malpractice claim. In support of their position, the Court cited similar cases which involved medical settings. For example, a Florida court held that a case involving a nursing caretaker’s restraining hold on an unruly patient did not require medical skill and thus did not fall under medical malpractice. Further, a previous decision explained that a medical provider’s decision to leave a critical care patient unsupervised, causing him to fall out of a bed, did not fall under medical malpractice. As such, the court denied the defendant’s petition to dismiss and affirmed the case in favor of the plaintiff.