Medical Malpractice

Doctors’ Duty to Prevent Suicide in Florida

Published on: February 28, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a Florida appellate court considered whether a medical malpractice case was appropriate in the case of a suicide where the woman was being treated for depression. The woman’s husband brought the lawsuit.

The woman had a history of depression and was taking Prozac before she was switched to Effexor. The doctor was not aware that the woman had stopped taking the Effexor because of its side effects. She had called her doctor and spoken to his assistant in 2008. She told the assistant she didn’t feel right, wasn’t sleeping well, and was experiencing gastrointestinal distress. She thought it was the Effexor. The assistant wrote this information down in a note to the doctor.

When the doctor saw the note soon after, he decided to change the medication to Lexapro and referred her to a gastroenterologist. The office didn’t ask her to schedule an appointment. The woman picked up samples and a prescription on the same day. The next day she hung herself, leaving no suicide note.

Wrongful Birth Lawsuits in Florida

Published on: January 21, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Wrongful birth is a type of medical malpractice in which parents argue that negligent advice took away their chance to stop conception or terminate the pregnancy. In a recent wrongful birth case, an obstetrics and gynecology group and doctor appealed a final judgment in a medical malpractice action in which the plaintiffs were awarded $2.5 million in damages.

The case arose after a child was born with significant birth defects. During the mother’s pregnancy she had experienced bleeding and had to be examined using ultrasound technology. Her first report indicated the anatomy was mostly normal, but the view was limited based on the fetal position and there were other abnormalities.

The mother was referred to genetic counseling and had to undergo a more detailed ultrasound. She was also given the option for amniocentesis, but declined that option. The second ultrasound also had a limited view, but noted that the anatomy that could be seen looked normal and growth was appropriate.

Notice to Multiple Defendants in Florida Medical Malpractice Cases

Published on: January 10, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Medical malpractice cases in Florida can be complicated and it’s important to retain an attorney with experience to help make sure you meet all the requirements, including the notice requirement. In a recent case, a married couple challenged the trial court’s order granting summary judgment to a doctor and radiologist in their medical malpractice case. The case arose when the wife was taken to the hospital because of pain and vomiting.

In the ER, multiple tests were performed, including a CT scan. A doctor in Switzerland read the scan and prepared a report for the hospital indicating the scan was unremarkable. Nonetheless, the wife was admitted to the hospital and a magnetic resonance angiogram (MRA) was performed.

The MRA results showed a filing defect in an artery. Emboli were suspected. Different personnel found problems on the CT scan not found by the Swiss doctor. An hour later, surgeons operated on the wife to remove a blood clot.

Medical Malpractice Statute of Limitations in Florida

Published on: January 3, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Under section 95.11(4)(b) of the Florida Statutes, a plaintiff must bring his or her action for medical malpractice within 2 years from the time of the incident that gave rise to the lawsuit or within 2 years from the time the incident was discovered if due diligence were exercised. In a recent case, a plaintiff appealed a final judgment in favor of a doctor and hospital. The court had granted summary judgment in their favor on the basis of a statute of limitations defense.

The doctor performed hip replacement surgery on the plaintiff in 2004. The next day the plaintiff told the doctor that his leg was numb and he had a foot drop. The doctor and staff told him these symptoms would go away after physical therapy. The plaintiff continued treatment with the doctor, but his symptoms didn’t improve.

In 2005, the plaintiff went to see a neurologist who advised him he had a permanent neurological deficit. In 2007, the plaintiff filed a notice of intent as required by statute and then the malpractice action.

Amending a Medical Negligence Complaint in Florida

Published on: December 20, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a mother sued several medical professionals both on behalf of herself and her deceased 21-year-old daughter’s estate. She alleged that the medical professionals were negligent after her daughter died of MRSA lobular necrotizing pneumonia.

The defendants filed a motion asking the lower court to take judicial notice of a circuit court’s shelter orders in which there was found probable cause to remove the deceased’s children’s from her care. The shelter orders also found abuse of alcohol and drugs, failure to submit to drug testing and domestic violence. The mother objected on the grounds that the orders included inadmissible hearsay and character evidence.

The medical professionals argued that the daughter’s system had been affected by alcohol and hydrocodone that combined with the pneumonia to impair her breathing ability and resulted in death. At trial, its expert witness testified that she died of pneumonia complicated by aspiration and intoxication.

Medical Negligence on Cruise Ships That Depart From Florida

Published on: December 13, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s large tourism industry gives rise to interesting legal questions regarding personal jurisdiction over cruise line defendants who have been negligent. Personal jurisdiction refers to whether the court has power over the parties in a particular lawsuit. If a court does not have personal jurisdiction, its rulings and orders can’t be enforced upon that person or entity.

Can a defendant be held responsible in Florida courts if he or she simply works on a boat that departs from Florida? The answer to this question can impact ship doctors, as well as other ship personnel. A recent case illustrates the answer.

In the case, a couple took a seven-night cruise on a Royal Caribbean Cruise Line. She went to the ship’s doctor as the boat neared Haiti for treatment of serious abdominal pain. The ship’s nurse and doctor saw her. She was treated for gastritis, but she worsened. She got off the ship in Mexico and went to the hospital where she got an abdominal surgery. She was treated for sepsis and multiple organ failure. She also experienced a cerebral hemorrhage.

Can a Defendant’s Educational Failures Be Used in Florida Medical Negligence Cases

Published on: November 20, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Medical malpractice cases can turn on expert testimony. What other kinds of evidence may be used to show a doctor is negligent? A doctor’s history of educational difficulties and failures are typically inadmissible to prove negligence. In a recent case, the plaintiff was referred to a doctor after she told her primary care physician about cramping, pain and bleeding. The doctor found she needed a hysterectomy and performed one. She came back to the hospital five days later complaining of pain and discomfort. Her ureter was blocked, but there was too much inflammation to perform an immediate surgery.

The plaintiff was required to wear a nephrostomy tube for three months, during which she had diarrhea, nausea and vomiting. Her ureter was repaired, but she still suffered pain at the time of trial and wet herself every night.

She sued the doctor and his employer for medical malpractice. During the trial, nobody disputed that the ureter injury was caused by the hysterectomy. The issue was whether the doctor was negligent not to check the integrity of the ureter after the operation.

Who Qualifies as a Medical Expert in Florida Medical Malpractice?

Published on: September 5, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida medical malpractice cases, a plaintiff must conduct an investigation among experts to see if there are reasonable grounds to believe a particular medical professional was negligent and that the negligence led to his or her injury. If so, the plaintiff must notify each defendant of the intent to file suit against them for medical negligence, and include a written “medical expert opinion” from a medical expert.

If the defendant is a specialist, the medical expert chosen by the plaintiff must be one who is in the same specialty as the provider and has experience treating similar types of patients. The concept of “similar specialty” has been contentious in Florida medical malpractice law. For example, is an ER physician qualified to testify against an orthopedic surgeon? May a pulmonologist testify against an ER doctor?

In a recent case, a plaintiff filed a lawsuit against her ophthalmologist and surgical center after getting a lower eyelid surgery. She claimed that she’d gotten a bacterial infection during the surgery, which led to her needing more surgery, in spite of which her eye was disfigured.

Can a Florida Hospital Be Liable for Negligent Acts by Its Employees?

Published on: August 23, 2013 | by Friedman Rodman Frank & Estrada, P.A.

“Respondeat superior” is a theory that may be asserted in personal injury cases in many jurisdictions, including Florida. It makes employers liable when their employees commit wrongful acts within the course and scope of their employment. A recent case illustrates how this type of theory can be pursued in a medical malpractice context. Respondeat superior cases differ from direct liability cases that are brought against employees of hospitals like doctors, nursing staff, or administrative staff.

In the case, parents took their young daughter to an ER twice in one day when she had an acute asthma attack. On both visits, the staff wouldn’t treat her. They would only treat her when the ambulance brought her a third time. The parents filed a lawsuit against the hospital, claiming it was liable for its staff’s failure to treat their daughter.

The hospital asserted that the claim was a medical malpractice claim. In Florida, medical malpractice claims are subject to a presuit requirement, which was not met in this case. The hospital’s argument was rejected.

Birth Injuries and Medical Negligence in Florida

Published on: August 8, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The birth of a child is often a joyous event for a couple. Unfortunately, there are cases when obstetricians make errors that lead to permanent problems for the child.

Last year, a Florida Court of Appeals considered the birth of a boy who, at his birth, seemed to have limited use of an arm, possibly “shoulder dystocia,” which can be the result of an injury to a particular nerve during a baby’s birth.

Within a few months of the baby’s birth, his mother contacted a plaintiff’s personal injury law firm that focused on medical malpractice cases. The law firm initiated the presuit investigation process that is required. After reviewing the obstetrical records, the law firm told the mother that they didn’t think the doctor had failed to meet the obstetrical standard of care during the delivery. Accordingly, the mother dropped the issue.

The boy experienced years of physical therapy, but after a few years it became likely that therapy was not ever going to totally resolve the issue. His mother consulted a specialist who suggested surgery and who told her that the boy’s injury might have been caused by medical negligence. A couple of years later, she filed suit against the obstetrician and her practice.

The doctor defended on the grounds that the lawsuit was barred by the statute of limitations. She filed two motions to dismiss the action. In the first motion she argued that the complaint was an improper pleading that failed to state a cause of action by claiming the plaintiff did not become aware of a cause of action for malpractice until a few years after the baby’s birth.

The second motion claimed the complaint was a sham since the mother had consulted a medical malpractice firm in 2005, just after the baby was born. The doctor claimed that since she suspected medical practice in 2005, it was false to try to claim she didn’t become aware of the medical negligence until 2009 when a doctor told her the boy’s shoulder dystocia could have been caused by the obstetrician.