Medical Malpractice

Medical Malpractice Case Dismissed Due to Plaintiff’s Failure to Present Sworn Expert Testimony

Published on: December 6, 2018 | by Friedman, Rodman & Frank, P.A.

Before a court hears any Florida medical malpractice case, specific procedural requirements must be met. If a court determines that a plaintiff failed to follow each of the necessary steps, the court will very likely dismiss a plaintiff’s claim. While some plaintiffs may be able to re-file their complaint after a dismissal, many plaintiffs will find that their claims are barred by the statute of limitations, leaving them without any means of recovery. Thus, in a Florida medical malpractice case, it is critically important to ensure that all procedural requirements are strictly followed.

A recent case illustrates the consequences of failing to comply with the pre-suit requirement to provide expert testimony in support of a claim.

The Facts of the Case

According to the court’s opinion, the plaintiff had a knee surgery performed at the defendant medical center. After the surgery, the plaintiff experienced shortness of breath. A doctor placed the plaintiff on oxygen, ordered an x-ray, and then sent her home two days later. Two days after her discharge, the plaintiff’s shortness of breath worsened, and she was admitted to a different medical center where she was diagnosed with pneumonia. It was also determined that the plaintiff likely had a stroke after her discharge from the defendant medical center.

Court Permits Florida Medical Malpractice Plaintiff’s Case to Proceed Despite Non-Compliant Expert Affidavit

Published on: September 24, 2018 | by Friedman, Rodman & Frank, P.A.

Earlier this month, the state’s supreme court issued a very important opinion in a Florida medical malpractice case discussing under what circumstances a plaintiff’s case must be dismissed when she fails to comply with the expert opinion requirement contained in Florida Statutes section 766.102. Importantly, the court held that a plaintiff’s case should not be dismissed for lack of a qualifying expert opinion unless the defense can show that the plaintiff’s failure to comply caused prejudice to the defense.

The Facts of the Case

The plaintiff was the personal representative of a woman who died after having a complicated pregnancy that resulted in the stillbirth of her child. Pursuant to section 766.203(2), the plaintiff designated an expert witness, who was a board-certified OB/GYN.

The plaintiff’s selected expert had over 30 years of experience in the field, and had delivered over 14,000 babies. She had also served as chief of the OB-GYN department at a large medical center, and Chief of Staff at a small women’s specialty hospital. In 2005, the expert began law school, and obtained her Juris Doctorate in 2007. However, when asked, the expert stated that she “was engaged in full-time patient care until March 2008.”

Plaintiff’s Medical Malpractice Lawsuit Dismissed for Failing to Meet Pre-Suit Requirements

Published on: June 1, 2018 | by Friedman, Rodman & Frank, P.A.

Earlier this month, a state appellate court issued a written opinion in a Florida medical malpractice lawsuit discussing the potential consequences that may arise when a plaintiff fails to properly follow all of the procedural requirements. Ultimately, the court affirmed the dismissal of the plaintiff’s lawsuit against the defendant because the pre-suit notice provided by the plaintiff contained the affidavit of an infectious disease doctor, rather than that of an ophthalmologist, which was the specialty of the defendant doctors.

The Facts of the Case

The plaintiff underwent a surgery to repair droopy skin around her eye. The surgery was performed by one of the defendant doctors. The surgery went as planned, and another defendant doctor conducted the post-surgical examinations. Both defendant doctors were ophthalmologists.

After the surgery, the plaintiff developed an infection in her eye. The infection left her with serious visual impairments, dizziness, and a heightened risk of future infections. She filed a personal injury lawsuit, first naming the doctor who performed the surgery as the only defendant. Attached to this claim, the plaintiff included an affidavit from an ophthalmologist stating that the plaintiff’s case had merit.

Federal Appellate Court Finds that the Feres Doctrine Bars Medical Malpractice Liability

Published on: May 29, 2018 | by Friedman, Rodman & Frank, P.A.

Recently, a federal appellate court issued an opinion stemming from a lawsuit filed by the husband of a Navy lieutenant who died following complications from childbirth. The husband filed a lawsuit alleging that his wife’s death was caused by the negligence of the medical staff at a naval hospital. Ultimately, the court reluctantly affirmed the dismissal of the lawsuit, based on the oft-criticized Feres doctrine.

The Facts of the Case

In 2013, a Navy lieutenant resigned from her position after she and her husband learned that they were expecting a child. Sadly, even though the woman’s pregnancy was normal, she died from severe hemorrhaging about four hours after her daughter’s delivery.

The Procedural Posture

Following the woman’s tragic death, her husband filed a lawsuit alleging that the hospital was negligent in their treatment of his wife and that their negligence resulted in her wrongful death. The district court dismissed the lawsuit based on the Feres doctrine.

Court Orders New Trial in Medical Malpractice Case After Jury Returns Zero-Dollar Damages Award for Plaintiff’s Pain and Suffering

Published on: May 22, 2018 | by Friedman, Rodman & Frank, P.A.

Earlier this year, a state appellate court issued a written opinion that raised an interesting issue that comes up in Florida personal injury cases from time to time. The case presented the court with the opportunity to discuss under which circumstances a jury’s zero-dollar damages award is insufficient as a matter of law and must be rejected.

The Facts of the Case

The plaintiff woke up one evening with an excruciating headache, the worst she had ever experienced. She began to vomit and was also nauseous. Her symptoms did not subside after two days, and at that point, she went to the defendant hospital, thinking she had a bad case of food poisoning.

Despite telling the nurses that she had a terrible headache, that fact was not documented in the plaintiff’s chart. Instead, the plaintiff’s chart contained notes of gastrointestinal symptoms. The plaintiff was eventually released from the hospital without a diagnosis and was instructed to follow up with a primary care doctor in the near future.

Verdict in Favor of Patient Reversed by Court Due to Patient’s Failure to Prove Causation

Published on: April 19, 2018 | by Friedman, Rodman & Frank, P.A.

Recently, an appellate court issued a written opinion in a case overturning a verdict that initially favored a surgical patient’s medical malpractice case. The reversal of this verdict highlights a primary element that is necessary for Florida medical malpractice plaintiffs. Here, the Supreme Court held that without sufficient evidence to show that a plaintiff’s injury was directly due to a preventable error, there is no way to ascertain causation.

Preventable Injuries in Florida Medical Malpractice Lawsuits

Medical errors are now one of the leading causes of death in the United States and contribute significantly to non-fatal medical injuries as well. Although some differences exist among state-specific medical malpractice laws, the overriding definition is similar among all states.

In Florida, for a plaintiff to have a favorable outcome in a medical malpractice case, the first requirement is evidence that a medical professional was providing services to the patient. Following this, there must be testimony from a medical expert that the medical negligence was a result of a divergence from the standard of care. Most importantly, in Florida, it is necessary to illustrate that this medical negligence was the direct cause of the injury to the patient. If the plaintiff cannot illustrate that the prevention of this medical negligence would have also prevented their injury, the claim remains speculative at best.

Court Holds Jury Should Decide Issue Whether Insurance Company Is on the Hook for Plaintiff’s Future Medical Expenses

Published on: December 15, 2017 | by Friedman, Rodman & Frank, P.A.

Earlier this month, a state appellate court issued a written opinion in a personal injury case discussing when summary judgment is appropriate in a car accident case involving the payment of future medical expenses. The case illustrates an important concept that is applicable in all Florida car accident cases when the at-fault driver’s insurance company disputes some aspect of the claim.In this case, the court determined that the expert witness testimony presented by the insurance company gave rise to a material issue as to whether the plaintiff’s continued medical care was a result of the accident. As a result, the court reversed a lower court’s decision granting summary judgment in the plaintiff’s favor.

The Facts of the Case

The plaintiff was involved in a car accident with a driver who was insured by the defendant insurance company. The insurance company acknowledged that the other driver was at fault and agreed to pay the plaintiff’s medical expenses in advance. In total, the insurance company covered approximately $53,000 of the plaintiff’s medical expenses.

Florida Statute of Limitations for Medical Malpractice Cases

Published on: December 12, 2017 | by Friedman, Rodman & Frank, P.A.

When a someone is injured due to the negligence of a medical professional, they may be entitled to recover compensation for their injuries through a Florida medical malpractice lawsuit. All Florida personal injury lawsuits, especially medical malpractice lawsuits, are subject to strict procedural requirements that must be followed. One of the most commonly encountered hurdles that Florida medical malpractice plaintiffs face is the timeliness requirement embodied in the statute of limitations.In Florida, medical malpractice cases must be brought within two years of the date of the injury. In some cases, that timeframe can be extended if the plaintiff is young at the time of the injury or does not discover the injury until a later date. However, even under these circumstances, time is still of the essence because Florida’s statute of repose prevents a lawsuit from being filed more than four years after the injury unless there has been fraud or concealment.

A recent case illustrates how courts determine when a victim’s claim accrues – or when the clock starts ticking.

Florida Court Explains Not All Injury Cases Arising in the Medical Context Should Be Considered “Medical Malpractice” Cases

Published on: November 24, 2017 | by Friedman, Rodman & Frank, P.A.

Medical malpractice cases generally present complex scientific or medical concepts that are beyond the understanding of must jurors. For this reason, nearly all Florida medical malpractice cases require the testimony of experts to explain some of the issues in the case to the jurors. Experts can also offer their opinions about whether the care provided by a defendant doctor fell below the generally accepted standard of care.Due to the complex nature of Florida medical malpractice cases, Florida law places certain requirements on plaintiffs filing this type of case. One of the most important differences between medical malpractice cases and other personal injury cases is that medical malpractice cases are subject to a shorter statute of limitations. In Florida, a medical malpractice plaintiff must file their claim within two years of the incident (or, if the injury is not discovered until a later date, within two years of the plaintiff’s discovery of the injury).

A recent case presented a Florida appellate court with the chance to decide whether a plaintiff’s slip-and-fall accident should be considered a medical malpractice case.

Florida Supreme Court Issues Landmark Medical Malpractice Opinion

Published on: November 20, 2017 | by Friedman, Rodman & Frank, P.A.

Earlier this month, the state’s Supreme Court issued a Florida medical malpractice opinion that will likely have a great impact moving forward. The case required the court to consider a patient’s right to privacy following an alleged medical malpractice event. Specifically, it addressed whether the patient loses their right to privacy in certain medical records once the patient dies. The court ultimately held that a patient’s right to privacy survives after death and may be asserted by a family member bringing a Florida wrongful death lawsuit.

The Facts of the Case

The plaintiff was the surviving spouse of a man who died while in the care of the defendant physician. The plaintiff filed a medical malpractice lawsuit against the defendant doctor, and in response, the doctor requested certain medical records pursuant to the rules of discovery.

The particular rules of discovery invoked by the defendant required the plaintiff to disclose all of the health care providers that her husband saw in the years leading up to his death. Furthermore, the rules actually allowed for the defendant to have secret meetings with the medical care providers in the absence of the plaintiff or her attorney.