Articles Posted in Medical Negligence

When you head to an appointment with a Florida medical provider, you expect to be treated with respect and to get better soon. But what happens when you’re injured or hurt because of the health care service you receive? Can you sue for medical malpractice? Was it medical malpractice to begin with?

Medical malpractice cases in Florida are unique, in that they have their own requirements. When determining whether a medical malpractice theory applies, courts look to whether the injury arose out of the delivery of, or failure to deliver medical care or services by a health care provider. Healthcare providers in Florida include licensed physicians, osteopaths, podiatrists, optometrists, dentists, chiropractors, pharmacists, hospitals or ambulatory surgical centers. If the defendant is a health care provider under Florida law, then the case falls under medical malpractice and requires stricter procedural rules. Additionally, health care providers or facilities that are not expressly included within the definition of the statute can also be vicariously liable for acts of health care providers.

However, not all situations involving health care related services are necessarily considered medical malpractice in Florida. For example, in a recent state Supreme Court opinion, a plaintiff brought suit against her massage therapist after he allegedly sexually assaulted her during a massage. Before the assault, two separate customers had complained to the facility about the therapist’s conduct and how he had been inappropriate with them during their massages. The plaintiff sued the massage therapy company and claimed that it was negligent in its training, supervision, and retention of the massage therapist who assaulted her.

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Under Florida law, a person who suffers injuries because of a negligent healthcare professional may be able to recover for their damages. However, the plaintiff must meet specific requirements to succeed on their claim. Specifically, a plaintiff must establish that the healthcare provider had a legal duty to provide the appropriate care, that they breached that duty, and they suffered damages as a result of the defendant’s breach. To establish the “breach” element of a claim, plaintiffs must show that the healthcare provider’s conduct fell below the prevailing professional standard of care for a similarly situated provider.

Some healthcare providers try avoiding liability by evoking the Florida Good Samaritan Act (the Act). The Act protects some healthcare practitioners from liability when they are providing necessary emergency care. The Act covers physician assistants, nurses, and other professionals who provide emergency care. In these cases, the emergency provider may not be liable for civil damages if the claim stems from their emergency care or treatment, if another reasonably prudent person would have acted similarly. The law extends coverage, even if the patient did not receive treatment through an emergency room. However, plaintiffs can recover if they prove that the provider exhibited reckless disregard in their care, such that they knew or should have known that their behavior would create an unreasonable risk of injury or harm. Additionally, the Act may not apply when there are questions regarding whether the patient was receiving emergency medical treatment.

Recently, a state appellate court issued an opinion addressing issues that often arise in Florida accident claims. In that case, the plaintiff suffered severe bodily injuries when an ambulance driver ran a red light and slammed into the plaintiff’s car. The ambulance was transporting a patient after he had undergone dialysis. The plaintiff argued that the ambulance driver was not carrying a patient during an emergency situation, and he was not using his lights or siren when he ran the red light. The defendant argued that they were immune under the state’s medical provider immunity act, and they did not engage in willful or wanton conduct. The plaintiff argued that merely operating an ambulance for non-emergency transport is not covered by the state’s act. Ultimately, the court found that the ambulance driver’s actions in driving and running a red light during a non-emergency event were not integral to providing care. Therefore, the court affirmed that the ambulance driver was liable for the plaintiff’s injuries.

Under Florida law, health care providers owe a duty to their patients. This duty requires doctors, nurses, and other medical professionals to provide a certain level of care to their patients. When a medical professional fails to live up to this duty, and a patient is injured as a result, the patient may be able to pursue compensation through a South Florida medical malpractice lawsuit.

Medical malpractice claims can be complex, and they often raise several unanticipated issues. One of the most critical early decisions that an injured patient must make is which parties to name as defendants. Of course, the medical professional whose negligence resulted in the patient’s injuries is an obvious choice. However, there may be other parties that can be named to improve a plaintiff’s chance of recovering compensation for their injuries.

This stands true for all Florida personal injury cases. And a common source of liability is an at-fault party’s employer. For example, under the doctrine of respondeat superior, an employer can be held liable for the negligent acts of their employee. Thus, employers are routinely named as defendants in cases involving an employee’s negligence. However, most medical professionals are legally classified as contractors rather than employees, making a respondeat superior claim difficult, if not impossible.

When a patient is injured after receiving negligent medical care, they may be able to pursue a Florida medical malpractice lawsuit against the medical professionals they believe to be responsible for their injuries. Florida medical malpractice lawsuits, however, are subject to several additional requirements that can be burdensome for many prospective plaintiffs. For example, before filing a medical malpractice lawsuit, a plaintiff must determine that there are “reasonable grounds” for their claim by conducting a pre-suit investigation.

There are several other differences between medical malpractice cases and traditional negligence cases. For example, due to Florida’s medical malpractice damages cap, the number of damages available to medical malpractice plaintiffs are capped at a lower amount than damages in traditional negligence claims. Finally, the stature of limitations in a Florida medical malpractice lawsuit is just two years, whereas the statute of limitations for traditional personal injury cases is four years.

That being said, most Florida injury victims would prefer that their case be classified as one of traditional negligence. However, when a case arises in a quasi-medical setting, defendants routinely try to categorize a plaintiff’s claim as a medical malpractice claim. Depending on the nature of the claim, the stage of litigation, and the amount of time that has passed, this could completely defeat a plaintiff’s chance at recovering for their injuries. A recent case illustrates the types of arguments defendants make in hopes of successfully categorizing the plaintiff’s claim as one of medical malpractice.

Under Florida Statutes section 766.106, Florida medical malpractice plaintiffs must comply with certain additional procedural requirements. For example, a Florida medical malpractice plaintiff must provide pre-suit notice to the defendants, including a list of all of their medical providers for the two-year period prior to the incident as well as all providers seen subsequent to the incident. In addition, medical malpractice plaintiffs are subject to a shorter statute of limitations and must also present an expert affidavit in support of their claim.These additional requirements, while burdensome, may not seem like an insurmountable hurdle. However, in reality, defendants often attempt to raise a plaintiff’s failure to comply with the additional requirements as a defense after the lawsuit has been filed. Thus, a defendant may be successful in barring a plaintiff’s ability to recover damages by establishing that the plaintiff failed to comply, and by that point, it may be too late because the statute of limitations has expired.

Thus, the determination of whether a case is one of traditional negligence or medical malpractice is an important one. In a recent case, a state appellate court issued an opinion discussing the distinction between the two types of cases and which types of cases are likely to be considered ones involving claims of medical malpractice.

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Earlier this month, an appellate court in Georgia issued an opinion in a personal injury case that discusses principles that often arise in Florida medical malpractice cases and other personal injury cases. The case required the court to determine if the plaintiff’s evidence gave rise to a case of medical malpractice against the defendant pharmacist in the wake of a medication error. Ultimately, the court concluded that the plaintiff’s testimony failed to establish that the pharmacy violated any professional duty of care, and thus the medical malpractice claim was dismissed.The Facts of the Case

The plaintiff suffered from serious medical issues requiring that he take certain medication. One day, the plaintiff’s wife went to pick up her husband’s prescription from the defendant pharmacy. The plaintiff’s wife was provided a single bag with two bottles inside. Neither bottle had the plaintiff’s name on it, and neither contained the proper medication.

The plaintiff’s wife, not noticing the error, gave the medication to her husband. Later that evening, she found the plaintiff on the floor near the front door to their home. The plaintiff’s wife did not notice anything that could have caused her husband to trip, and she concluded that he fell on his own. The pharmacy error was later discovered, and the couple subsequently filed a personal injury case.

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Earlier this month, a state appellate court issued a written opinion in a personal injury case that illustrates the importance of following all procedural and court rules in South Florida medical malpractice cases. In this case, the plaintiff brought a lawsuit against a physician and pharmacy, claiming that they overprescribed medication. The case presented the court with the opportunity to discuss whether the plaintiff’s late-filed notice of expert testimony should be admitted, and if not, whether the plaintiff’s claim must fail as a result.Ultimately, the court resolved both issues against the plaintiff, dismissing her case against both the pharmacy and the physician.

The Facts of the Case

The plaintiff filed a personal injury lawsuit against the defendants, a physician and a pharmacy. The deadline for pre-trial discovery passed, and the plaintiff had not identified any expert witness who would be testifying on her behalf. The defendants filed a motion for summary judgment, and on the day that hearing was scheduled to be held, the plaintiff announced that she would be having an expert testify.

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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.

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Earlier this month, one state’s appellate court issued a written opinion in a medical malpractice case that required the court to determine whether the single doctor named as a defendant should be able to introduce evidence that there had originally been several other doctors named as defendants, but they had all settled with the plaintiff before the case reached trial. Ultimately, the court determined that the contested evidence was relevant to the case and should have been admitted.

The Facts of the Case

The plaintiffs were the surviving loved ones of a man who died while he was being treated by the defendant doctor after he slipped and fell while playing racquetball. The defendant was one of several doctors who treated the plaintiffs’ loved one, and each of the other treating physicians had originally been named in the lawsuit. However, the plaintiffs agreed to settle the cases against the other physicians out of court and proceed to trial against only the defendant.

In a pre-trial motion, the plaintiffs asked the court to prevent the defendant from explaining to the jury that there were originally several other doctors named in the lawsuit, but they had reached settlements with the plaintiffs. Additionally, the plaintiffs asked the court to prevent the defendant from arguing that the subsequent acts of these other non-present doctors acted as an intervening cause of their loved one’s death. The trial court denied both of the plaintiffs’ motions, and the case proceeded to trial. The jury found in favor of the defendant, and the plaintiffs appealed.

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A United States District Court recently issued a decision that denied a plaintiff’s request to impose sanctions against a defendant for destroying evidence before trial on the plaintiff’s pharmacy error claim. The plaintiff had alleged that the defendant, who had already admitted to accidentally dispensing the wrong medication to the plaintiff, destroyed the evidence in order to gain an advantage in litigation against the plaintiff. The court ultimately rejected the plaintiff’s request for additional sanctions and damages against the defendant, ruling that the defendant’s admission of the pharmacy error made the evidence sought by the plaintiff irrelevant to the issues presented in the case. The court ruled that since the plaintiff’s case was not prejudiced by the defendant’s actions, the requested sanctions would not be appropriate.

Plaintiff’s Claim Arises After Pharmacy Accidentally Dispenses the Wrong Medication

According to an article discussing the court’s recent ruling in the case, the plaintiff in the case of Burton v. Walgreen Co. was a customer of the defendant who filled a prescription for valsartan tablets but was instead given a bottle containing both his prescribed medication as well as lithium tablets. The plaintiff consumed five of the pills before noticing the error and returning the medication. The plaintiff subsequently filed a pharmacy error lawsuit against the defendant, alleging that he suffered injuries as a result of the wrong medication being dispensed by the defendant.

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