South Florida Personal Injury Lawyers Blog

Medical Malpractice, Birth Injuries, and the Recent Increase in the Rate of Home Births

Published on: October 4, 2016 | by Friedman Rodman Frank & Estrada, P.A.

A national news outlet recently published an article that is the second in a multi-part series on pregnancy and birth. The article discusses both the causes and the effects of the recent increase in the rate of families who decide to plan a birth at home or in a non-hospital birth center. Data from a study cited by the article shows that the rate of planned out-of-hospital births has increased by 56% in less than a decade. The steep increase in the home-birth rate raises several questions concerning the effect on medical malpractice and birth injury claims.

The Main Reasons for the Recent Increase in Home Births

According to the author of the recent article, one of the primary reasons for the recent increase in home-birth rates is the general decline in the level of trust afforded to institutionalized medicine and corporate care, especially as it applies to the act of delivering a child.

Complaints have proliferated from patients who were subjected to unnecessary or unwanted interventions in the name of “medical necessity” while giving birth at a hospital. Many professional medical providers are quick to recommend or order complicated and sometimes dangerous procedures during a hospital birth, and mothers and families may not be afforded the opportunity to give informed consent for these procedures in the heat of the moment. It is often not until after a hospital birth is completed that the mother is able to understand the procedures that were performed, and they may not have been necessary.

State Supreme Court Affirms Verdict for Defendant in Medical Malpractice Lawsuit, While Possibly Expanding the Statute of Limitations for Future Plaintiffs

Published on: September 30, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Massachusetts Supreme Court recently released an opinion affirming a jury’s decision that a plaintiff’s claim was time-barred because she should have known malpractice was being committed and filed the lawsuit within the state’s statute of limitations. Although the high court ruling affirmed a final judgment in favor of the defendants, the court’s analysis and application of what is known as the “continuing treatment doctrine” left the door open for future medical malpractice plaintiffs to legally pursue claims over three years after the date of the alleged act of medical malpractice if the requirements for the doctrine are met. The Massachusetts Supreme Court found that the plaintiff’s claim in the case of Parr v. Rosenthal did not meet the requirements to extend the statute of limitations, and therefore it affirmed the jury’s verdict in favor of the defendant.

Complications Treating a Tumor on the Plaintiff’s Son’s Leg Results in Amputation

The plaintiff in the case of Parr v. Rosenthal is the mother of a child who lost his leg after receiving treatment from the defendant for a benign tumor on his leg. After the plaintiff’s son was diagnosed with the rare and quickly growing tumor, she sought out the defendant, who specialized in a treatment known as radio frequency ablation, or RFA, to have the tumor removed.

The plaintiff’s son was seriously burned during the procedure and eventually required two amputation surgeries on his leg because of the damage allegedly caused by the defendant. On March 9, 2009, over three years after the RFA procedure was performed, the plaintiff filed a medical malpractice and negligence lawsuit against the defendant. After a trial, the jury found that the plaintiff’s claim should have been filed within the three-year statute of limitations for medical malpractice claims, and the plaintiff should have discovered the doctor’s negligence within the limitations period.

The Rate of Low-Risk Cesarean Sections Continues to Decline

Published on: September 27, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The first of several articles that are being released as part of a new series on pregnancy and birth-related issues by a popular national news network has a startling title. The piece, entitled “Why I Regret my Scheduled C-Section,” was written by journalist Lisa Ling as part of a larger segment that is being published by CNN called “This Is Birth,” which will address many issues that American families face when seeking professional medical care during a pregnancy.

Why the Author Regretted Her Elective C-Section

Part one of the newly published series explains how and why the author came to regret her decision to have a scheduled cesarean delivery of her second child. According to the facts discussed in the article, a late ultrasound of her first pregnancy revealed that the child’s umbilical cord was wrapped around her neck and would need to be delivered by C-section. Her first C-section went as planned and without complications. When she became pregnant again, the author scheduled her second child to be delivered by C-section, a popular decision for mothers who have previously given birth by C-section. Unlike her first delivery, the author’s second C-section had complications and resulted in the author acquiring a dangerous and painful infection in the hospital. Although her baby and she ultimately recovered, the author clearly states that she did not thoughtfully consider the risks of a C-section compared to those of a natural birth, and shr regrets her decision to have the surgery.

Court Upholds Verdict in Icy Road Car Accident Case

Published on: September 23, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of Alaska recently decided to uphold a jury’s verdict in favor of the defendant in a personal injury claim. The plaintiff had sought damages from the defendant as compensation for injuries that she allegedly suffered in an auto accident caused by the defendant’s failure to stop on an icy road. As a result of the court’s ruling, the plaintiff is unlikely to receive compensation for her personal injury claim.

The Plaintiff’s Vehicle Was Struck From Behind by the Defendant

The plaintiff in the case of Marshall v. Peter is a woman who was allegedly injured when her vehicle was hit by the defendant’s while she waited to perform a left turn. The defendant responded to the complaint and denied that he acted negligently, testifying that he had left adequate space between his vehicle and the plaintiff’s vehicle and that the accident was caused by the icy road conditions. The jury considered the plaintiff’s claims and testimony at trial and decided the defendant was not negligent or responsible for the plaintiff’s injuries.

The Plaintiff Appeals to the Alaska Supreme Court

The plaintiff appealed the trial court’s rulings to the state supreme court, arguing that the claim should not have been rejected by the jury as a matter of law. The appellate court favored the defendant’s arguments, noting that the jury reasonably could have found that the defendant was exercising due care when operating his vehicle and was not negligent in failing to prevent the accident. The Court additionally entered a judgment against the plaintiff for part of the defendant’s attorneys fees after the plaintiff failed to reasonably consider a settlement offer made by the defendant during pre-trial negotiations.

State Supreme Court Affirms Wrongful Death Verdict in Favor of Smoke Detector Manufacturer

Published on: September 20, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of the State of Alabama recently published an opinion that affirmed a lower court’s ruling in favor of the defendants regarding a wrongful death claim filed against the manufacturer of a smoke detector that failed to prevent the death of the plaintiffs’ daughter in a 2011 mobile home fire. The high court affirmed both the district court’s judgment to prevent some of the plaintiffs’ claims from being considered by the jury at trial, as well as the jury’s verdict, which rejected the plaintiffs’ remaining claims made at trial. Based on the most recent appellate rulings, the plaintiffs will not be compensated for the expenses and loss related to the tragic death of their daughter.

The Plaintiffs’ Child Dies in a Tragic 2011 Fire

The plaintiffs in the case of Hosford v. BRK Brands, Inc. were the parents of a young girl who died in a fire that occurred in their mobile home on the night of May 20, 2011. The defendant manufactured two smoke alarms that were installed in the plaintiffs’ home prior to the fire. According to the facts discussed in the recent appellate opinion, the plaintiffs filed several claims against the defendant after their child’s death, alleging that the smoke alarms were defectively designed and failed to give the family adequate warning to safely escape and save their daughter’s life. Although the plaintiffs agreed that at least one of the smoke alarms sounded an alarm after the fire broke out, they claimed that the defendant’s product did not sound the alarm as soon as it should have, preventing them from rescuing their daughter before she perished in the fire.

Court Rejects Property Owner’s Injury Claim Against Land Survey Company

Published on: September 16, 2016 | by Friedman Rodman Frank & Estrada, P.A.

One state’s supreme court recently published an opinion affirming a lower court’s dismissal of a plaintiff’s personal injury claim that was filed after the plaintiff tripped on a stake that was placed on his property by the defendant while performing a survey. The state high court ultimately determined that the plaintiff could not collect damages from the defendant because the survey was paid for by prospective buyers of the property rather than by the plaintiff himself. Finding that the duty that is required to give rise to a negligence claim requires a contractual relationship between the plaintiff and the defendant, the court ruled that the defendant could not be held accountable for the plaintiff’s injuries.The Plaintiff Sues After Suffering an Injury From a Stake Placed in the Ground by the Defendant

The plaintiff in the case of Bixenmann v. Dickinson Land Surveyors is a man who was injured on his own property after he tripped on a stake that was placed in the ground by the defendant as part of a survey he was hired to perform. The survey in question was performed in anticipation of the plaintiff’s sale of the property to another party, who paid for the survey pursuant to the real estate purchase contract.

After he was injured, the plaintiff filed a negligence claim against the land survey company, alleging that the stake created a dangerous condition and should have been more visible or accompanied by a warning to prevent the plaintiff’s injury. The plaintiff’s claim was dismissed by the district court, who ruled that he was required to provide expert testimony as to the standard of care owed to property owners and the general public by a professional land surveyor placing survey stakes in the ground.

Court Ruling Favors Accident Plaintiff Who Initially Sued the Wrong Defendant

Published on: September 13, 2016 | by Friedman Rodman Frank & Estrada, P.A.

One state’s supreme court recently published a decision reversing two lower court rulings that had thrown out a car accident case initially filed against the wrong defendant and later amended by the plaintiff to include the actual driver of the other vehicle, but only after the statute of limitations for a personal injury claim had expired. The most recent appellate opinion interpreted the state procedural rules to allow the plaintiff’s claim to proceed against the actual driver of the other vehicle involved in the accident because the plaintiff was reasonably mistaken as to who was in control of the vehicle at the time of the crash. Since the dismissal of the plaintiff’s case has been reversed, the plaintiff’s negligence claim against the driver of the other vehicle will proceed toward a trial or the settlement of the plaintiff’s claim.

The Plaintiff Suffered Injuries After Being Rear-Ended by a Vehicle with Several Occupants

The plaintiff in the case of Sellers v. Kurdilla is a woman who was injured after her vehicle was rear-ended by a pickup truck in January 2010. According to the facts discussed in the recent appellate opinion, the truck contained at least three occupants when the accident occurred. Based on the identification and insurance information that the vehicle’s driver furnished to the plaintiff after the accident, an attorney filed a personal injury claim on her behalf against the vehicle’s owner shortly before the statute of limitations for such a claim expired.

In response to the plaintiff’s lawsuit, the truck’s owner claimed that he was not driving when the accident occurred, although he was riding in the truck. The plaintiff then amended her claim to add the man who was driving the truck as a defendant to her lawsuit, although the amended claim was not filed until after the statute of limitations had expired.

Federal Court Awards Additional Damages to Plaintiff Based On Insurance Company’s Bad Faith

Published on: September 9, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The United States Tenth Circuit Court of Appeals recently published an opinion affirming a federal district court’s ruling awarding a plaintiff triple damages in a breach of contract case filed against his insurance company. The plaintiff sued his insurer after the defendant refused to honor an underinsured motorist claim made by the plaintiff after another driver caused a car accident, resulting in injuries to the plaintiff. In addition to the damages initially requested by the plaintiff, the trial jury also awarded him $1.5 million in special damages because of the defendant’s unreasonable delay and denial of his initial claim. Based on the Tenth Circuit ruling affirming the jury’s award, the defendant will be required to pay the full amount to the plaintiff.

The Plaintiff Suffered a Back Injury in an Accident with an Underinsured Driver

The plaintiff in the case of Etherton v. Owners Insurance Company is a Colorado man who was injured in an auto accident in 2009. The at-fault driver was insured with $250,000 worth of liability coverage, although the plaintiff claimed to have suffered at least $1 million in damages from the crash. The plaintiff filed a claim with the defendant, his own insurance company, seeking compensation through his underinsured motorist policy for the $750,000 deficiency between the accident expenses and the other driver’s policy limit. The defendant denied the plaintiff’s claim, noting “serious questions of causation” in the plaintiff’s claim and offering only a $150,000 settlement to handle the issue. After subsequent negotiations failed, the plaintiff filed suit against the defendant to enforce the insurance policy.

State Court Affirms $4 Million Wrongful Death Verdict in Medical Malpractice Case

Published on: September 6, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Idaho Supreme Court recently published an opinion affirming a $4 million jury verdict in a wrongful death and medical malpractice case filed by the husband of a woman who died after complications from a liposuction procedure performed by the defendant. The award, which includes over $1,250,000 in non-economic damages, was enhanced by the jury’s finding that the defendants acted recklessly in caring for the deceased woman.

Liposuction Patient Dies After Unknown Bacteria Is Introduced into Her System

The wife of the plaintiff in the case of Ballard v. Silk Touch Laser had a liposuction procedure performed by the defendant in 2010. Less than one week after the procedure, she died of septic shock from an unknown bacteria that was allegedly introduced into her system during the procedure. The plaintiff’s wrongful death lawsuit alleged that the defendant had negligently failed to sterilize equipment before performing the procedure and sought damages from the defendant. After a jury trial, the plaintiff was awarded a verdict totaling over $4 million. The defendant appealed the verdict to the Idaho Supreme Court.

The Defendant Challenges the Plaintiff’s Expert Testimony

On appeal, the defendant challenged the plaintiff’s use of an anesthesiologist as an expert witness to give testimony as to the appropriate standard of care that the plaintiff’s wife was entitled to receive. The appellate court found that the defendant never objected to the plaintiff’s proposed expert during the trial and could not raise the issue for the first time on appeal. Although the court noted that the plaintiff’s proposed expert was legally qualified to give testimony, the defendant’s failure to object to the testimony earlier made his arguments impossible on appeal.

State Court Waives Limitations Period for Plaintiff in Underinsured Motorist Claim

Published on: August 25, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Indiana Supreme Court recently published an opinion affirming a lower court’s ruling to allow a plaintiff’s personal injury claim to proceed against her insurance company. The defendant insurance company had argued that the underinsured motorist claim at issue was filed after the policy’s limitations period for such claims had expired and should not be permitted. The courts reasoned that the language of the underinsured motorist policy appeared to exempt such claims from the limitations period and was too ambiguous to be enforced. As a result of the recent appellate ruling, the plaintiff’s claim for damages against the defendant will proceed toward a trial.

The Plaintiff Is Injured in an Auto Accident With an Underinsured Motorist

The plaintiffs in the case of State Farm Mutual Auto Insurance Company v. Jakubowicz are a woman and her two sons, who were injured in a car accident with another driver in August 2007. According to the facts and procedural case history discussed in the appellate opinion, the woman filed a personal injury case against the other driver less than two years after the accident, seeking compensation for her family’s injuries.

As the claim against the other driver proceeded, the plaintiff learned that the other driver’s insurance coverage would be insufficient to fully compensate her for the expenses and losses suffered in the accident. The plaintiff eventually added a claim against her own insurance company, seeking compensation for damages that would not otherwise be covered through her underinsured motorist coverage, although this claim was not filed until after the three-year limitations period had expired.