South Florida Personal Injury Lawyers Blog

State Supreme Court Rules that Post-Mortem Misconduct by Doctor Is Medical Malpractice, Reverses Damages Award

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

The Supreme Court of the State of Texas recently released an opinion holding that a defendant’s actions in improperly obtaining a woman’s consent for a private autopsy of her husband, who died while under their care, was a medical malpractice claim. Although the ruling in the case of Christus Health v. Carswell may arguably expand the definition of medical malpractice within the state to include actions taken after a patient’s death, the ultimate result of the court’s ruling was to reverse a judgment entered in favor of the plaintiff. The judgment was reversed because the court found that the claims alleging the post-mortem malpractice were not made within the two-year statute of limitations for health care liability claims in the state of Texas.

Plaintiff’s Husband Found Unresponsive in Hospital Bed after Receiving Narcotic Pain Medication from Doctors

According to the facts discussed in the court’s opinion, the case was initially filed after the plaintiff’s husband was found dead in his hospital bed after being admitted to the hospital with complaints of severe pain. He was initially prescribed narcotics to treat his pain, but they were discontinued after he suffered an adverse reaction. Subsequently, he was given additional pain medication by a different medical provider after the severe pain returned, and he was found dead shortly thereafter.

After her husband’s death, the plaintiff requested that an autopsy be performed at the county medical examiner’s office, although she was told that the medical examiner’s office declined to perform the autopsy. A subsequent autopsy performed at another facility operated by the defendant failed to include a toxicology screening. The plaintiff alleged that the failure to include a toxicology screening in the autopsy prevented the autopsy from determining if a drug overdose or adverse reaction contributed to his death.

Court Rules That Nursing Home Defendant Waived Right to Compel Arbitration

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

The Supreme Court of South Carolina recently released a decision reversing a lower appellate decision that determined the defendant nursing home maintained their right to compel arbitration of the plaintiff’s wrongful death claim against them, filed on behalf of the plaintiff’s deceased mother. The state supreme court determined that by litigating several issues both before and after the decedent’s passing, the defendant had given up their right to enforce an arbitration agreement signed by the plaintiff when her mother moved into the nursing home.The Plaintiff’s Mother’s Health Declined Quickly after Moving into the Nursing Home

The case of Johnson v. Heritage Healthcare was filed based on the plaintiff’s mother’s quickly deteriorating health and eventual death while living in a nursing home operated by the defendant. According to the facts recited in the supreme court opinion, the plaintiff’s mother was in good health when she moved into the home, but her condition dramatically worsened within six months of moving in. The plaintiff alleged that the defendant’s negligence resulted in her mother’s poor health and eventual death, and she filed a wrongful death lawsuit against them after her mother’s passing.

Prior to the Wrongful Death Lawsuit, the Plaintiff Sought Her Mother’s Medical Records from the Defendant

After her mother’s condition worsened but before her death, the plaintiff filed an action against the defendant, seeking her mother’s medical records to determine why her health had deteriorated so quickly while under the defendant’s care. Although the plaintiff had signed an agreement to pursue claims through arbitration rather than in a state court proceeding, the defendant responded to the plaintiff’s claims in state court. The defendant vehemently resisted the plaintiff’s attempt to access her mother’s medical records, refusing to turn them over after the court ordered that they do so. Until her mother died, the plaintiff was unable to access her medical records in spite of the court’s order compelling the defendant to release them.

Appellate Court Orders District Court to Allow Defendant’s Medical Expert to Examine Plaintiff in Personal Injury Case

Published on: June 2, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of the State of Texas recently released an opinion and issued a rarely utilized type of order allowing an expert retained by the defense in a personal injury lawsuit to perform a medical examination on the plaintiff during an ongoing premises liability lawsuit. The defense’s request, which was previously denied by the trial court, was made to allow the defense to present the most credible responses to the plaintiff’s claims at trial. Since the high court’s order was issued in a proceeding that is ongoing, the plaintiff’s claim for damages may still prevail, although he will be unable to prevent the defendant’s proposed expert from performing a medical examination on him before the case proceeds to trial.

The Plaintiff Was Injured Outside a Grocery Store Operated by the Defendant

The plaintiff in the case of Rodriguez v. H.E.B. Grocery Company filed a personal injury lawsuit after he alleged that he was injured when he tripped on an unsecured plate in the parking lot of a property that was operated by the defendant. In response to the plaintiff’s lawsuit, the defendant retained a medical expert to ascertain the source of the plaintiff’s alleged injuries and offer a medical opinion as to whether the injuries were caused by the plaintiff’s fall on the defendant’s property. After reviewing the medical records of the plaintiff but without performing a physical examination on him, the defendant’s expert offered a report that concluded the plaintiff’s injuries were likely the result of a pre-existing condition, rather than the injuries sustained on the defendant’s property, as the plaintiff alleges.

The Plaintiff Also Retains an Expert Who Performs a Physical Examination

In addition to the medical expert retained by the defense, the plaintiff also hired a doctor to serve as an expert witness and offer an opinion on the source of the plaintiff’s injuries. The plaintiff’s expert performed a medical examination and would presumably testify that the plaintiff’s injuries were caused by the slip and fall on the defendant’s property. After the plaintiff’s expert was proposed to the court, the defendant requested that their expert be permitted to perform a physical examination on the plaintiff, arguing that a jury would give more weight to the plaintiff’s expert testimony merely because he was able to perform a full physical examination. The district court denied the defendant’s request, leading them to file an emergency appeal to the state supreme court.

Plaintiff’s Underinsured Motorist Claim Denied by Appellate Court

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

The U.S. Court of Appeals for the Seventh Circuit recently released an opinion affirming a lower court’s ruling against the driver and two passengers involved in a car accident. The plaintiffs alleged that the settlement they received from the at-fault driver was not sufficient to cover their damages, and they sought additional relief from the insurance company covering the driver of the car they occupied. The plaintiffs attempted to use the underinsured motorist coverage included in the driver’s insurance policy to contribute to their relief, but the district court and Seventh Circuit agreed with the defendant, holding that the uninsured motorist coverage under which the claim was filed did not apply.

Plaintiffs Are Injured after Another Driver Runs Through Stop Sign, Causing a Four-Car Accident

The plaintiffs in the case of Trotter v. Harleysville Insurance Company were injured when the car they were occupying was struck at an intersection by another vehicle that drove through a stop sign. After the accident, the plaintiffs filed a personal injury lawsuit and reached a settlement with the insurance company representing the driver of the vehicle that caused the accident.

The settlement that was reached awarded a total of $500,000 to the three plaintiffs, which was shared based on the injuries each had sustained in the crash. The $500,000 settlement was for the single-accident policy limit of the liability insurance coverage, although the plaintiffs maintained after accepting the settlement that they were not made whole by the settlement and suffered more harm that should be compensated.

Settlement Reached in Joan Rivers Medical Malpractice Case

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

Earlier this month, a settlement was announced in the wrongful death and medical malpractice case filed by the family of deceased comedienne Joan Rivers. The lawsuit was based upon her 2014 death at an outpatient surgery center in New York City. Although the exact terms and financial amount of the settlement have not been announced, the Rivers family’s attorney has said it was “substantial.” Since the case was settled, and the doctors and clinic accepted responsibility for Ms. Rivers’ death, there will not be a trial.

Ms. Rivers Dies After Seeking Treatment and a Routine Procedure at the Defendant Clinic

According to a New York Times article discussing the settlement, Joan Rivers arrived at the Yorkville Endoscopy Center in Manhattan on August 28, 2014, complaining of a hoarse voice and sore throat. Doctors for the center decided to have her undergo an endoscopy, which is a diagnostic procedure of the upper digestive tract and requires a patient to undergo anesthesia.

According to the article, the main operating physician ignored warnings that Ms. Rivers was at risk of having her airways blocked by severely swollen vocal chords. Minutes later, her airways become obstructed, and she stopped breathing, but the doctors were unprepared for emergency intervention to relax her vocal chords or puncture a hole in her throat to allow breathing. The doctors in attendance called 911, and Ms. Rivers was taken to a hospital for emergency treatment, but she had gone into cardiac arrest by that point and was unable to recover.

Accidents Involving Popular Ride-Share Services May Not Be Covered by Insurance

Published on: May 19, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The exploding popularity of the ride-share apps Lyft and Uber, as well as similar services, has created a gray area in insurance coverage that could put some drivers and passengers at increased risk in the event they are involved in an accident with someone who is working as a driver for a ride-share service. Although the most popular ride-share companies provide insurance for passengers once they are in the vehicle, the coverage is not absolute, and other accidents involving a ride-share driver may not be covered by any insurance whatsoever.

Personal Versus Commercial Auto Insurance Coverage

The recent boom in the popularity of ride-share services comes in part from the ease with which people can become drivers and support themselves using only their personal vehicle and the services provided by the app. Most ride-share drivers, however, only carry personal insurance coverage for their vehicles, and they may not be covered for any accidents or incidents that occur while they are engaged in business activities, such as driving a passenger for a fee though the app. According to a recently published national news report, the most popular ride-share services, Lyft and Uber, offer insurance that covers passengers and other vehicles both while a passenger is in the vehicle and while the driver is traveling to pick up the passenger after receiving a call. Passengers, pedestrians, and other drivers who are injured by a ride-share vehicle during these times should be covered for damages by making a personal injury claim against the ride-share driver.

There is No Coverage for Accidents That Occur While the Driver Is Waiting on a Fare

According to the article, there is a gray area that exists in which accident victims may not be covered by any insurance in the event of a crash with a ride-share operator. If a driver is waiting for a notification to pick up a passenger while driving around, they are technically engaged in commercial activity, although the insurance that is provided by the ride-share companies is not in effect. Since the driver is seen as a commercial driver, their personal auto insurance may not offer coverage in the event of an accident. Ride-share operators are encouraged to obtain coverage for these situations, although it is common for them to continue operating a ride-share vehicle with no insurance coverage for these situations.

Appellate Court Reverses Defense Verdict Based on Contradicting Testimony

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

The Supreme Court of Indiana recently released a ruling in which they reversed the granting of summary judgment to the defendants in a medical malpractice lawsuit filed on behalf of the surviving family members of a deceased woman who allegedly died as a result of the defendants’ negligence and refusal to offer the woman life-sustaining treatment in spite of the family’s request to do so. As a result of the high court’s ruling, the case will proceed toward a trial or settlement in the district court.

Defendant Hospital Overrides Family’s Request for Life-Sustaining Treatment

The plaintiffs in the case of Siner v. Kindred Hospital were the children of a woman who was admitted to the defendant hospital as an 83-year-old in 2007, while suffering from pneumonia. According to the facts as recited in the court’s opinion, the plaintiffs had power of attorney over their mother’s medical care and requested that she be classified by the hospital in a manner that would allow her to receive any and all life-sustaining care and interventional treatment in the event her condition became immediately life-threatening.

The defendant hospital’s ethics review board overrode the Siners’ decision, finding that the woman’s condition was not likely to improve, and classified their mother in a manner that would prevent life-sustaining treatment, should the need arise. After hearing of the hospital’s refusal to follow their medical instructions, the plaintiffs decided to move their mother to another hospital where she could receive the life-sustaining treatment they requested. After moving to the new hospital, Ms. Siner’s condition worsened, and she died approximately one month after her arrival. The plaintiffs filed a medical malpractice and wrongful death lawsuit against the first hospital, alleging that they failed to follow the standard of care to which the woman was entitled and that they negligently contributed to her death.

State Supreme Court Reverses Judgment for Defendant in Wrongful Death Claim

Published on: May 12, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of Idaho recently released an opinion reversing a lower court’s dismissal of a wrongful death by medical malpractice claim. The district court had ruled that the plaintiffs’ claim against the hospital where a family member died from an anesthesiologist’s alleged negligence could not proceed, since the medical provider was an independent contractor rather than an employee of the hospital. The state supreme court disagreed with the district court’s findings, holding that the plaintiff adequately made a claim against the hospital based on the apparent authority they had over the medical provider, and the claim should not have been dismissed. Based on this most recent ruling, the plaintiffs’ case will be reheard by the district court and could proceed toward a possible trial or settlement.

Hospital Patient Undergoes Surgery but Never Wakes Up

The plaintiffs in the case of Navo v. Bingham Memorial Hospital are the surviving family members of a man who visited the defendant hospital in December 2008, suffering from an infection in his ankle that was caused in part by a metal rod that had been implanted to treat a previous injury. The patient agreed to undergo surgery to have the metal rod removed, and he completed an anesthesia release form. The plaintiffs’ claim alleges that the provider of the anesthesia negligently administered the drugs, and nurses were unable to revive the patient after the procedure was complete. Ten days later, the patient died.

Plaintiffs’ Wrongful Death Lawsuit against Hospital Is Rejected, and Plaintiffs Appeal

After the patient’s death, his surviving family members filed a wrongful death lawsuit against the provider of the anesthesia, as well as the hospital where the procedure took place. Based on the consent and release forms signed by the patient and the status of the anesthesiologist as an “independent contractor” of the hospital rather than a direct employee, the district court rejected the plaintiffs’ claim against the hospital, finding that it could not be held legally responsible for the man’s death.

State Supreme Court Rules in Favor of Plaintiff in Dram Shop DUI Wrongful Death Case

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

The Supreme Court of Massachusetts recently released an opinion affirming a district court’s ruling that a plaintiffs’ lawsuit against a restaurant regarding the DUI-related death of their family member could proceed. The defendant had argued that the plaintiffs submitted an insufficient affidavit to make a claim against a provider of alcoholic beverages, but both courts disagreed with the defendant’s arguments, and the case will continue to be heard.

Plaintiffs’ Family Member Dies after Allegedly Being Served an Excessive Amount of Alcohol by the Defendant

According to the plaintiffs’ complaint, their family member died in a single-car DUI accident after he had spent hours at a restaurant and bar operated by the defendant. The plaintiffs claim that an employee of the defendant repeatedly served the driver alcoholic beverages, knowing that he was extremely intoxicated and that he would be driving home. The claim, made under a state law known as the Dram Shop Act, is allowed against third parties who knowingly serve alcohol to a visibly intoxicated patron who later causes an injury or death while driving drunk. Several states have various forms of dram shop laws, which have been enacted to discourage dangerous serving practices at restaurants and bars across the country.

The Defendant’s Request to Dismiss the Case Is Rejected

Once the plaintiffs’ case was filed, the defendants asked the court to dismiss it, arguing that an affidavit attached to a Dram Shop Act claim must be based on personal knowledge rather than simply information and belief. Both the district court and the Massachusetts Supreme Court ruled that an affidavit based on knowledge and belief is sufficient to prevent the claim from being dismissed, and any irregularities or discrepancies in the facts can be decided by a judge or jury at a later point in the case. Based on the rulings, the plaintiffs’ claim will be allowed to proceed toward a trial or settlement.

State Supreme Court Dismisses Claim Against City for Failure to Meet Filing Deadline

Published on: May 5, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Maine Supreme Court recently released a decision that emphasizes the importance of following procedural requirements in filing a personal injury lawsuit, especially in cases in which the defendant is a governmental entity. The case of Deschenes v. City of Sanford was filed by the plaintiff after he fell down an allegedly dangerous staircase at the Sanford city hall and was injured from the fall.The plaintiff filed a premises liability lawsuit against the city, although he did not give them a formal notice of claim until over 180 days after the injury occurred. Although the plaintiff had given the city oral notice of his injury, the city asked the court to rule in their favor and deny the plaintiff’s claim, based on the state requirement that plaintiffs must file a lawsuit against a government entity in Maine within 180 days of the alleged negligence.

Both Courts Agree that Oral Notice Is Not Sufficient to Comply with the Procedural Requirements

The plaintiff’s argument at the district court and on appeal was that he gave the city oral notice of his injury after it occurred, and he requested compensation for his injuries in person within 180 days of the accident. Both the district court and the Maine Supreme Court found that an official notice of claim needed to be provided in writing by the man or his attorney to comply with the state sovereign immunity act, and that the plaintiff’s oral request for compensation was not sufficient under the act. Based on the court’s decision to uphold the lower court’s decision, the plaintiff will not be compensated for his medical bills and injuries based on the alleged negligence of the city.