Medical Malpractice

What is Proximate Cause in a Florida Medical Malpractice Case?

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

Medical malpractice cases in Florida require a plaintiff to prove (1) the standard of care owed by the health care professional, (2) the health care professional’s breach of that standard, and (3) that the breach “proximately caused” the damages claimed. “Proximate cause” in Florida means that the negligence more likely than not caused the injury. It isn’t sufficient to show that what was done or not done by a health care professional probably affected the outcome. Usually an expert doctor must testify on this point.

In a recent case, a seventeen-year-old boy diagnosed with aortic stenosis collapsed during a preseason baseball workout. Aortic stenosis is a heart condition in which the aortic valve ‘narrows’ and the heart has a reduced ability to pump blood, which puts the person suffering from the condition at an increased risk for a heart attack.

Prior to his death, the boy was cared for by a pediatric cardiologist who saw him every year to administer stress tests and echocardiograms. The doctor agreed that the boy could play baseball but not contact sports. In 2001, the doctor told the boy he would need a stress test before starting the 2002 baseball season. The stress test was not performed before the new season.

Important Florida Supreme Court Ruling on Arbitration Agreements for Medical Malpractice

Published on: June 25, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Many Florida health care providers ask patients to sign arbitration agreements before they are treated. These agreements keep medical malpractice cases from going before a jury.

A medical malpractice cause of action in Florida is controlled by Chapter 766 of the Florida Statutes, the Medical Malpractice Act (MMA). The MMA specifically states that after the pre-suit and investigation requirements are fulfilled, either party may ask the others to submit to voluntary binding arbitration.

Assuming the claimant offers and the defendant agrees, the statute caps damages that may be awarded at arbitration to $250,000 for non-economic damages, calculated in terms of percentage of ability to enjoy life. (Non-economic damages include pain and suffering, but do not include actual medical expenses). The defendant is required to concede liability in this scenario.

However, if a defendant does not agree to voluntary binding arbitration in a case where the claimant has died, the cap on non-economic damages is $1 million at trial. And if a claimant does not agree to voluntary binding arbitration requested by the defendant and elects to go to trial, non-economic damages are capped at $350,000.

Recently, an important Florida Supreme Court case interpreted the law in a way that should help many medical malpractice plaintiffs. The case arose when a 67-year-old man suffered a hematoma during hernia surgery when one of his veins was lacerated and later died. His wife filed an action against the surgeon and the surgical group who operated on him, suing for medical malpractice leading to wrongful death.

The surgeon and his group made a motion to compel arbitration in accord with an agreement signed by the deceased before his surgery. This agreement not only bound him and his estate to arbitration, but it also capped his non-economic damages in case of medical malpractice to $250,000 per incident. The agreement also stated that a patient who wished to complain had to follow the standard procedure of serving a pre-suit notice.

The trial court ordered arbitration. The decedent’s wife appealed, argued that the arbitration agreement violated public policy as articulated in the MMA. Nonetheless, the First District Court of Appeal affirmed the trial court’s decision. The decedent’s wife appealed to the Florida Supreme Court.

Florida Appellate Court Reverses Jury Verdict in Medical Malpractice Case

Published on: June 6, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Medical malpractice cases in Florida must meet high standards of proof. They usually require testimony from expert doctors and nurses who are willing to testify against the doctor or nurse in the case. A Florida appellate court recently reiterated the standards by which a plaintiff can win a medical malpractice case.

In the case, an eighty-seven year old woman fell and broke her hip. Before she fell, she had been reasonably healthy. After she fell, she was admitted for hip surgery and began to deteriorate. She started to suffer from anemia, a urinary tract infection and acute renal failure, among other things.

The woman became mostly immobile and needed help to move around. An anti-coagulant was prescribed to avoid a pulmonary embolism. She also developed a Stage IV bedsore on her spine. Nonetheless she was discharged from the hospital and moved to another facility.

A visiting doctor noticed that the bedsore was discharging material. He and a nurse used a scalpel to cut out the dead tissue, applying a topical anesthetic. Because of the anti-coagulant the woman was taking, there was a threat of excessive bleeding. Therefore, they could not remove all the dead tissue and treated it with enzymatic debridement. They made several recommendations for her treatment until they could visit again the following week to finish up their care of the bedsore.

Florida Appellate Court Rules Medical Malpractice Pre-Lawsuit Requirements Not Necessary in a Wrongful Death Action

Published on: May 17, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The Fifth District Court of Appeal of Florida recently reviewed a trial court’s dismissal of a wrongful death action for plaintiff’s failure to comply with the pre-lawsuit requirements for medical malpractice cases. In medical malpractice cases, a plaintiff must meet certain requirements, such as investigating before filing suit and giving notice to prospective defendants before filing suit. This case ended well for the plaintiff. However, it is a good example of why it’s so important to hire a personal injury attorney with multiple areas of experience if a loved one is killed in connection with a health care provider or in a context that might give rise to a medical malpractice claim. The rules that must be followed in contexts that overlap multiple practice areas can be tricky to navigate on your own.

The facts giving rise to a lawsuit arose when a 25-year-old pregnant woman visited the hospital complaining of pain. The hospital moved her to the defendant, a behavioral health facility, that evening, but when she arrived she was still complaining of abdominal pain. She was in distress, but over the next two days, the facility acted (and failed to act) in ways that led to her death.

Florida Appellate Court Rules on Issue of Jury Selection

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

The Florida District Court of Appeal recently considered a case in which the plaintiff experienced brain damage and permanent disability as a result of medical negligence. The case illustrates the importance of having a good attorney on your side. The plaintiff was incapacitated after a doctor punctured his carotid artery while performing a catheterization procedure. The plaintiff’s guardian filed a lawsuit against the doctor on his behalf.

Before the trial, the court asked the parties’ attorneys to conduct a pre-qualification of the prospective jurors by directing them to answer written questions. The ninth question asked jurors whether they or their family members had ever been a party to a lawsuit. Two jurors answered no.

After a verdict for the plaintiffs, the doctor’s attorney investigated the jurors’ backgrounds. He moved to interview the two jurors who had answered no to the question about prior lawsuit involvement. When he learned that the two jurors had concealed their prior litigation experience when being questioned during the jury selection process, he moved for a new trial.

Florida Appellate Court Overturns Summary Judgment on Minor’s Medical Malpractice Claim

Published on: April 22, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Moody v. Lawnwood Medical Center, Inc., a Florida appellate court considered a lawsuit for medical malpractice brought on behalf of their minor child, after the trial court granted summary judgment against them. The appellate court looked at two issues. The first was whether the releases of two doctors who treated the minor also released the medical center. The second was whether the medical center had a non-delegable duty to provide competent emergency care to a minor.

The case arose when a minor was hurt in a playground accident. Her mother brought her to a pediatric health clinic where x-rays were ordered. A right hip fracture was diagnosed and the pediatrician recommended that the mother bring her child to the medical center that was a defendant in the lawsuit because he had staff privileges there.

The mother brought her daughter to the emergency department at the medical center and signed a form that claimed to limit the medical center’s liability for acts of independent contractor physicians. The mother later denied ever seeing these terms or agreeing to them.

An orthopedist concluded the minor did not have a hip fracture and therefore, she was discharged. However, her symptoms got worse and she had to be brought to another hospital, which found she had a fractured right hip, septic arthritis, septic shock, right heart failure, MRSA and infections. She was hospitalized for 10 weeks and experienced long-term complications.

Florida Hospital Ordered to Re-calculate Patient’s Life-Expectancy Damages

Published on: April 10, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida woman was diagnosed with stage 3c breast cancer after her physician failed to report evidence of microcalcifications during a routine breast screening two and a half years before the diagnosis. The injured patient filed suit against the hospital, treating physician, and medical imaging company. She agreed to let an arbitration panel determine the amount of damages she was entitled to, but disagreed with their calculation of the damages for loss of earning capacity. She argued that it should be based on her life expectancy before the injury occurred and appealed the arbitration panel’s decision to the Florida Third District Court of Appeals.

All parties agreed there was a chance of the breast cancer recurring, and that the recurrence would be fatal. To determine damages, her loss of earning capacity calculation began at an anticipated date of recurrence, but the parties disputed which life expectancy length should be used. The hospital argued that Florida law required the woman’s life expectancy to be calculated based on her current, post-injury life expectancy. The doctor and imaging company argued awarding damages that calculated her loss of earning capacity based on her pre-injury life expectancy would allow a personal injury claim to survive her death. The hospital, doctor, and imaging company’s argument is based on the idea that she would benefit from an award that belonged to her survivors and estate in a wrongful death action, thus she should be limited to a post-injury life expectancy calculation.

The Court of Appeals agreed with the injured patient and ruled that she should be allowed to calculate her life expectancy based on her pre-injury estimate and not post-injury. They Court agreed that survivors and beneficiaries have a right to sue in Florida for future loss of support and services in a wrongful death action, but noted that a wrongful death action is actually precluded under Florida law when the injured party is successful in obtaining a personal injury judgment. In this case, the injured patient’s family would not be able to recover in a wrongful death action, so she is entitled to damages that calculate her pre-injury life expectancy. The Court of Appeals recognized that several courts around the United States have the same position and that a calculation considering pre-injury life expectancy is fair and necessary to make someone “whole”, or as they would have been but for the injury.