Articles Posted in Medical Negligence

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.

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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.

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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.”

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.

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.

As the weather warms up, many are looking to make summer vacation plans in preparation for enjoying the sunshine. A cruise, for many families, seems like the perfect opportunity to get away from it all. Cruises, however, are not immune to accidents or medical issues taking place while onboard—and sometimes, recovering following an incident on a Florida cruise ship where the cruise line may have been partially or fully responsible for your injury can become a murky ordeal.

In a recent Eleventh Circuit opinion, a plaintiff sued a cruise line after suffering a heart attack on board that left him with lingering medical issues. While on the cruise, the plaintiff had extensive symptoms consistent with a heart attack, and physicians on the ship treated him until he was able to be admitted to a hospital a day and a half later. Following his treatment, he eventually got a pacemaker and has continued medical issues because of the damage to his heart. The plaintiff sued the cruise line for negligence and claimed that its medical staff failed to diagnose and properly manage his status. After trial, the jury awarded approximately $1.7 million in damages to the plaintiff. The cruise line moved for a new trial based on faulty instructions to the jury.

On appeal, the Court of Appeals held that the cruise line was not entitled to a new trial. The cruise line claimed that the lower court gave faulty instructions to the jury and refused to give maritime-specific instructions about medical negligence and the differences between cruise line medicine and land-based medicine. The Court of Appeals disagreed and held that the lower court properly administered instructions to the jury. Because district courts have broad discretion to formulate jury instructions on the basis of correct statements of law, the jury instructions may have been generally worded, the Court of Appeals reasoned, but they were correct.

A Florida appeals court recently addressed several issues in an appeal stemming from an injury victim’s medical malpractice lawsuit against a cruise liner. The plaintiff, a Trinidad and Tobago citizen, departed from a Miami port for a five-day cruise. During the trip, the plaintiff became sick and visited the ship’s infirmary. The physicians determined the plaintiff was suffering from a heart attack and admitted him to the ship’s intensive care unit. They decided to refrain from administering certain medications, citing risk concerns.

Instead, they monitored him, and he was transferred to a hospital after porting in Miami. Subsequently, the plaintiff got a pacemaker. He filed a medical malpractice lawsuit against the cruise liner, alleging its medical staff failed to properly diagnose him, treat his illness, and evacuate him from the cruise ship. A jury awarded him $2,000,000 in damages, and the court reduced the damages by $300,000. Both parties appealed several issues, including the defendant’s contention that they were entitled to a new trial.

The defendant argued that they were entitled to a new trial claiming that the lower court erred in their jury instruction. The law provides that cruise lines must treat their patrons with “ordinary reasonable care under the circumstances.” In the context of maritime medical negligence, the law explains that cruise lines medical professionals will not always be held to the same standards as those onshore. In this case, the court instructed jurors that reasonable care is defined by “all relevant surrounding circumstances,” and medical negligence occurs when a physician does something “that a reasonably careful” doctor would not do “under like circumstances” or failing to do something a careful physician would do “under like circumstances.”

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.

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