South Florida Personal Injury Lawyers Blog

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.

When Must a Plaintiff’s Attorney Recuse Him or Herself in a Florida Trip and Fall Case?

Published on: September 3, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Trip and fall cases can be difficult to prove in Florida. A critical aspect of preparing a case is interviewing witnesses, including the property owner or manager. Usually an investigator does this investigation alone. Sometimes, an attorney accompanies the investigator, but this can raise certain risks, such as the risk that the attorney will become a witness. This is particularly likely in multi-party personal injury cases.

In a recent trip and fall case, a Florida appellate court considered whether an attorney had to be disqualified after becoming a witness. Subsequent to the initial appellate ruling, the appellate court granted a motion for rehearing and substituted a different opinion.

In the case, a plaintiff sued a store for personal injuries after tripping and falling near the store entrance in a shopping center. A guardrail had been taken away from a handicap access ramp, leaving a hole that the plaintiff tripped on. Her tibia and shoulder were broken, requiring surgery.

What is Considered a Fraud Upon the Court in Florida Personal Injury Lawsuits?

Published on: August 28, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Claiming your opponent has committed a fraud on the court is a serious accusation in Florida lawsuits. In a recent car accident case, the plaintiff sued the defendants alleging permanent injuries that included aggravation of a previously existing condition. During his deposition, he testified that he had previously been injured when two glass plates landed on his face at work. He testified that the resulting injuries did not affect his back. He also claimed that he hadn’t complained about back pain to a physician who had treated him for that accident.

In responses to written interrogatories, he claimed there that as a result of a 2004 car accident, he had hurt various body parts including his lower back. However, when asked in written interrogatories whether any part of his body that he claimed was injured in the latest car accident had been injured before, he only listed his neck and head injuries from the work accident. He claimed the same treating physician had treated him for both car accidents.

The defense subpoenaed the physician’s records. The records showed that the plaintiff may have complained about back injury before the second car accident. The doctor had noted that the plaintiff’s lumbosacral spine showed a reduced range of motion and made other notations on just a couple of occasions indicating that the plaintiff had complaints about his back. The final report made no mention of spine pain.

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.

Duty to Preserve Evidence in Florida Premises Liability Cases

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

After you’re hurt in an accident, you might assume that the people who caused your injury will behave ethically, keeping any evidence that you may need at trial. Unfortunately, this is not always the case. The insurance carrier for a store, hospital or other entity is not on your side. Its duty is to its insured, not to you. That’s why it is critical to consult with a personal injury attorney immediately after an accident if you believe someone else might have been at fault.

The Florida Second District Court of Appeal considered the duty to preserve evidence in Florida premises liability cases. The ruling reached by the court was very unfavorable to plaintiffs and illustrates the importance of proactively retaining an attorney as soon as you are aware of injuries.

In the case, a woman slipped and fell in a store, shattering her wrist. She had two surgeries, but experts believed more surgeries would be needed later. Within a week of the incident, the woman and the store’s insurance carrier talked several times and she gave an insurance agent a statement. She told the agent she slipped two steps beyond the front door mat, which was wet from rain. She also told the agent how much time she missed from work and notified the agent of her need for surgery.

Is There A Duty to Help Someone In Danger in Florida?

Published on: August 15, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Duty is a question of law in Florida. An affirmative duty to help a person in need cannot be imposed on just anyone. An appellate case illustrates just how strict the prohibition against imposing such an affirmative duty is.

In the case, the plaintiff was drinking with a man and his friend at a bar. The men were drunk. The man got belligerent with people at the bar. The plaintiff told him he was acting like an a******. The man and his friend followed him, asking why the plaintiff called him that.

The plaintiff ignored the pair, but had to go between the man’s truck and another car. As he went between them, the man hurried to the other side, trapping the plaintiff. The man’s friend followed him into the space between the cars.

The Defense Goes Too Far While Arguing a Florida Premises Liability Case

Published on: August 12, 2013 | by Friedman Rodman Frank & Estrada, P.A.

As we have explained in earlier posts, Florida has become a comparative negligence state. This means that a plaintiff whose own conduct contributes to his injuries will have his or her award reduced by the percentage of fault that can be attributed to him.

In a case decided last year, a plaintiff challenged the trial court’s judgment, which found her 80% comparatively negligent for her slip and fall at Wal-Mart, and also appealed the denial of her motion for new trial. The store cross-appealed on the grounds that the trial court had improperly dubbed its proposal for settlement invalid.

The case arose when the plaintiff slipped and fell in the store. She claimed there was something slippery on the floor and that she was injured such that she required neck and shoulder surgery.

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.

What is Florida’s “Obvious Danger” Doctrine?

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

In Florida premise liability cases, the obvious danger doctrine allows a landowner to avoid liability where the condition that caused the injury was known or obvious to the person who was injured.

In a recent case, a woman sued a market after tripping on a mat outside the public entrance to the store. The woman and her husband went to the market to buy groceries. The couple couldn’t remember if the mat was present at the entrance when they entered the store. However, the woman did remember that she’d seen the mat in front of the door on prior trips to the store.

After they were done shopping the man took the shopping cart of purchases to the car while the woman stayed inside to buy some additional items. The man noticed that an employee was laying the mat at the door as he left. The mat was not perfectly flat.

When the woman left the store, she tripped on the mat and fell, injuring her neck, elbows and knees. Later the husband would testify that a representative of the store claimed they were at fault at the time. The woman filed a premises liability complaint against the store, alleging that it failed to warn of a dangerous condition.

Can a Defendant Use Your Financial Condition as Evidence in a Florida Personal Injury Case?

Published on: August 2, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently addressed this issue in the context of a personal injury plaintiff who claimed her financial situation did not permit her to seek or receive consistent treatment for claimed injuries. The case arose out of a car crash in which the defendant claimed his car was bumped by another vehicle where it rear-ended the plaintiff’s car during stop and go traffic. The plaintiff claimed to be okay after the accident and drove home by herself.

Later she claimed she had a strain or sprain injury in her neck and back and suffered herniated discs due to the accident. She saw a chiropractor who recommended physical therapy for her symptoms: neck pain, arm pain, headaches, numbness, and impaired vision. She quit therapy because it made her feel worse.