Claims of medical negligence in Florida are subject to strict rules that, if ignored, may result in a case getting prematurely dismissed before it is ever even heard by a jury. For example, Florida medical malpractice cases must be filed within a certain period of time, as outlined in the relevant statute of limitations. In addition, Florida medical malpractice claims must be accompanied by a pre-suit affidavit filled out by a medical professional, stating that the plaintiff’s case has merit in the professional’s opinion. Also, medical malpractice plaintiffs must take care to adequately allege the specific acts on which they are basing their case. A recent medical malpractice case out of Rhode Island illustrates how a plaintiff’s failure to comply with these procedural rules may result in unfavorable results.
The Facts of the Case
The plaintiff – a breast cancer survivor – decided to undergo reconstructive breast surgery. She discussed the idea with the defendant doctor, who explained the risks involved with the procedure. Specifically, due to the radiation that the plaintiff received in her left breast to treat the cancer, she was at an elevated risk of having complications on that breast.
The plaintiff initially agreed to have surgery on both breasts, despite the risks. However, in her complaint, she claims to have changed her mind and have decided to only proceed with the surgery on her right breast. She claims to have let the defendant know of her decision. The defendant’s version of the events is different. He claimed that the plaintiff never changed her mind, or if she did, he was not made aware of her decision to do so.
Needless to say, the defendant conducted the operation on both of the plaintiff’s breasts, and she suffered serious complications related to the surgery on her left breast. She then filed a medical malpractice lawsuit against the defendant, claiming he “negligently” operated on the wrong breast. Later, after the statute of limitations had expired, the plaintiff tried amending her complaint to include a claim of medical battery, but she was prevented from doing so because the statute of limitations had already expired.
After the evidence was presented to the jury, the plaintiff asked the court to instruct the jury on the theory of medical battery. The defendant objected, claiming that the medical battery theory was not alleged in the plaintiff’s complaint and that it would be improper for the jury to base its decision on a theory that was not pleaded. The court overruled the defendant’s objection and instructed the jury on medical battery. The jury returned a verdict in favor of the plaintiff.
On the defendant’s appeal, the case was reversed. The appellate court agreed with the defendant that it was improper for the court to instruct the jury on a theory that was not pleaded by the plaintiff. As a result, the appellate court ordered that a new trial take place, in which the jury is properly instructed.
Have You Been Injured Due to a Doctor’s Negligent Medical Care?
If you or a loved one has recently been injured in an act of South Florida medical malpractice, you may be entitled to monetary compensation. The skilled South Florida personal injury lawyers at the law firm of Friedman, Rodman & Frank have extensive experience researching, preparing, and litigating a wide range of medical malpractice issues. Call 877-448-8585 to schedule a free consultation with a dedicated South Florida personal injury attorney today.
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