Articles Posted in Medical Malpractice

Personal injury lawsuits are all uniquely complex. Medical malpractice actions in particular have additional statutory requirements that add to the general challenges of a civil suit. The Florida legislature enacted Chapter 766 to create a pre-suit procedure for all medical malpractice actions. This process requires a claimant to conduct an investigation to see if there are reasonable grounds for a medical negligence lawsuit. The injured party must provide this corroboration of reasonable grounds with a verified medical expert opinion from a person who regularly practices medicine and meets the requirements set forth in subsection (5). If the defendant in the case is in a specialty, the expert must also practice in the same specialty.

A recently issued decision from the Second District Court of Appeal (2D16-4052) addresses the qualifications of a pre-suit expert. The plaintiff sought treatment from an orthopedist after breaking her toe. The defendant physician provided different types of care, including surgery. The problems with her toe remained, and the woman sought a second opinion. The second physician advised that the surgery performed was unnecessary for injuries like hers, and the injured woman filed suit against the institute where the first physician practiced. As part of her claim, the woman offered the required “corroboration of reasonable grounds to initiate medical negligence litigation,” accompanied by an affidavit of a board-certified podiatrist. The institute objected to the affidavit, claiming he was not qualified to testify as an expert because he was a podiatrist rather than an orthopedic surgeon. The injured woman did not respond to this objection.

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The civil judicial system is designed to help make injured parties whole by holding negligent parties accountable and providing compensation for expenses already incurred and certain expenses expected in the future. Damages for injuries may also include recognized setbacks that are harder to quantify like pain and suffering or loss of consortium. These damages are known as “noneconomic damages.” Florida Statutes sections 766.118(2) caps noneconomic damages in medical negligence cases at $500,000 per claimant. The damages can possibly increase to $1 million if the negligence resulted in a permanent vegetative state or caused a catastrophic injury. Subsection (3) has similar caps for negligence by non-practitioners at $750,000 and $1.5 million, respectively. The Supreme Court recently issued a decision (No. SC15-1858) finding these statutes violate the Equal Protection Clause of Florida’s Constitution under Art. I, Section 2.

The plaintiff in the case originally suffered from carpal tunnel. She had surgery to address the problem but suffered from complications leading to additional and severe injuries. The injured patient’s esophagus was perforated when the medical team performed intubation as part of her anesthesia. The injured patient woke up with incredible pain in her back and chest. The anesthesiologist was notified. He examined her and then wrote a prescription for her chest pain. The doctor concluded that there was no issue with her heart, and the patient was discharged that afternoon. On the next day, the injured patient’s neighbor went to check on her and found her unresponsive. The patient went to the hospital and underwent emergency surgery to repair her esophagus and save her life. After several weeks in a drug-induced coma, the patient awoke and began intensive therapy to relearn how to eat and regain mobility. The injured patient has expressed that she continues to suffer pain in the upper half of her body in addition to neurological disorders from the trauma.

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In any personal injury lawsuit, several actors can be liable for the injuries suffered by one person. Each defendant can potentially be liable under differing legal theories in separate jurisdictions. In Gables v. Doctors Same Day Surgery Center (Case No. 2D15-2495), the Second District Court of Appeal looked at whether or not the medical center performing the procedure at issue destroyed would-be evidence, preventing the injured patient from successfully pursuing legal action against the makers of the allegedly defective device. The injured patient, suffering from neck and back pain, had a pain pump system implanted to automatically deliver pain medication through her spinal canal. All of the pump’s parts were made by the same company.

After experiencing persistent pain, the patient visited her physician, who eventually concluded the pain medication was not going into the spine, leaking from the injection site and down the patient’s sides. A surgery was scheduled, and the doctor contacted the company’s representative to advise of the potential problem.

On the date of the surgery, the patient signed an informed consent to treat and disclose form, on which she declared that she wanted the “old pump” through a hand-written note. The doctor performed the surgery, with the representative present, and determined that the likely cause of the problem was the connector between the pump and the catheter. The connector was replaced, and the same pain pump was reinserted into the patient’s body. The doctor then confirmed the system was working correctly. After the surgery, the representative spoke with the patient’s husband, explaining that the connector had been replaced. The husband asked for the old connector, which was refused by the representative. The representative advised that he had to take it back to the company for testing. The patient also requested the connector but was also advised by the doctor that the connector had to go back to the company for testing.

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Under section 766.102(3)(b) Florida Statutes (2011), any foreign body, such as a sponge, clamp, forceps, surgical needle, or other paraphernalia commonly used in surgical, examination, or diagnostic procedures, is prima facie evidence of negligence by the medical health care provider. Typically, in any type of personal injury lawsuit, the injured person must show that the preponderance of the evidence shows the at-fault party is liable for the injury. In a recent case (No. SC15-2294), the Supreme Court looked at whether or not the burden of proof shifts to the defendant to show that medical negligence did not occur.

This lawsuit originated from the Fourth District Court of Appeal, which found that the burden did not automatically shift from the injured patient to the doctor. The plaintiff-appellant went to the hospital for a “colon resection due to cancerous polyps.” As part of the procedure, a drainage tube was inserted into the patient’s abdomen to remove any fluid built up after the operation. Typically, the drainage tube is removed. In this case, the nurse removed the drainage tube in preparation for the patient’s discharge. Testimony revealed that the doctor may not have instructed the nurse to remove the tube, but it was certain that the nurse performed the drainage removal procedure.  Hospital notes showed that the patient did not experience any discomfort during the procedure, but a 4.25-inch section was accidentally left inside.

The patient was discharged but began experiencing continuing pain in the region four months after the surgery. A CT scan showed that the tube was still in his body, and a second surgery became necessary to remove the remaining piece. The patient filed suit, alleging negligence, and sought a jury instruction with the presumption of negligence under section 766.102(3)(b). The court denied the injured patient’s motion, which would have advised the jury of the shifted burden. Instead, the jury heard the standard instruction given, which states that the “existence of a medical injury does not create any inference or presumption of negligence against the healthcare provider” and kept the burden of proof on the injured person to show that the injury was proximately caused by the professional. The jury found for the defendants, and the injured person appealed both the trial verdict and the District Court’s ruling affirming the verdict.

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The Supreme Court in Florida recently settled a division among the District Courts of Appeal on whether or not a medical malpractice arbitration agreement was void when it included terms only favorable to the hospital. In Hernandez v. Crespo (No. SC15-67), the Supreme Court determined that any arbitration agreement that left out required provisions of the Medical Malpractice Act and was only favorable to medical providers was void as against public policy. The Fifth District had previously held that the agreement was void, but the Second District had held that an arbitration agreement in Santiago v. Baker, 135 So. 3d 569 (Fla. 2d DCA 2014), was not void as against public policy because the parties did not invoke the statutory arbitration scheme.

This appeal stemmed from the injury suffered by a 39-weeks pregnant woman who was turned away from her doctor’s appointment because she was a few minutes late. The appointment was re-scheduled four days later. On the day before the rescheduled appointment, the patient delivered her stillborn son. A little over a year later, the patient provided notice to the hospital and the treating physician that she was initiating litigation. Over the next five months, the hospital and doctor denied the claim and moved to compel arbitration, pursuant to the agreement between the patient and the medical center. The agreement was signed by the patient and the Chief Medical Officer on behalf of the medical center, but not by anyone else. Two months later, the patient and her husband requested binding arbitration under section 766.207, Florida Statutes, which was declined by the hospital and physician.

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In Florida car accident cases, it is commonplace to see an insurance company indemnify, or take on a personal injury action on behalf of its insured. It is not often a hospital takes on a claim on behalf of a patient, but it happened in the recent Florida Court of Appeal case, Putnam Community Medical Center v. Florida Birth-Related Neurological Injury Compensation Association (aka NICA), No.1D16-32. The appellate court certified the hospital’s ability to sue as an interested third party because it had a direct economic interest in avoiding civil litigation and liability for injuries that might otherwise be covered by NICA, § 766.302(2), Fla. Stat., an Act that provides benefits to qualifying infants with birth-related neurological injuries.

NICA issues benefits to infants who suffer an injury to the brain or spinal cord caused by oxygen deprivation or a mechanical injury during delivery that results in a permanent and substantial mental or physical impairment.  A baby from a single gestation must weigh at least 2,500 grams (approximately 5.51 pounds) at birth. A baby from a multiple gestation must weigh 2,000 grams (approximately 4.41 pounds) at birth. A disability or death due to a genetic or congenital abnormality is not covered by NICA.

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In Coffey-Garcia v. South Miami Hospital, Inc. (No. 3D15-1966), the appellate court reviewed an order that compelled the mother of a child diagnosed with cerebral palsy to answer deposition questions about any lawyers she consulted related to the medical malpractice action she filed as an individual and on behalf of her daughter. The defendants requested the order from the trial court after the mother acknowledged that she had spoken with an attorney prior to the one she retained as counsel for the current litigation. The defendants felt that if the mother had spoken with another attorney or other attorneys long before filing the suit, the statute of limitations may have run on the action.

In this case, the daughter was born at the hospital in 2005 and was diagnosed with cerebral palsy in 2007. The lawsuit was not filed until April 30, 2013. Under the Florida statute of limitations, a medical malpractice action must be filed within two years from the time the incident occurred or within two years from the time the incident was discovered or should have been discovered. The defendants argued that they had a right to know whether this had passed, and they deposed the mother to learn when she first really understood that her child’s injury was caused by malpractice. The mother refused to answer the questions, citing attorney-client privilege, and the defendants sought an order from the trial judge to compel her to answer the questions about when she first sought legal counsel, the names of the attorneys she consulted, and the reasons why she sought legal counsel and any subsequent counsel.

The appellate court first looked at the right of a client to have her or his communications with an attorney remain confidential. The right in this case is granted by the Florida Evidence Code in § 90.502, Fla. Stat. (2013), under which the client has the privilege to refuse to disclose, and prevent others from disclosing, the contents of confidential communications when another person learns they were made while legal services were being provided to the client. The court noted that underlying facts that are independent of any communication with a lawyer are discoverable, but not the actual communication with the attorney.

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As discussed in prior blog posts, certain negligence actions require the victim, the victim’s family, or the victim’s estate to follow certain guidelines specific to the type of action pursued. Under Florida law, medical malpractice actions not only have a different statute of limitations but also have additional pre-suit requirements regarding notice of intent to sue and pre-suit investigation. Pre-suit investigation is allowed to help defendants determine whether there was negligence in the care or treatment of the injured person, and whether this negligence resulted in an injury. (See Chapter 766 of the Florida Statutes.) This investigation must be corroborated by a medical expert in a verified written opinion that is subject to discovery.

In Morris v. Muniz (1D14-3987), the defendant doctors and hospitals moved to dismiss a wrongful death complaint due to the estate’s failure to satisfy the state’s medical malpractice pre-suit requirements, specifically a failure to provide reasonable access to information during the pre-suit investigation. The trial court agreed with the defendants that there was a failure to provide reasonable information regarding the qualifications of the estate’s medical expert.

The appellate court, in its review, pointed out that the dismissal of a medical malpractice action must only occur in extreme situations as an extraordinary sanction. Florida law requires a plaintiff to provide reasonable access to information to the other party, and it allows trial courts to dismiss an action if the injured person or the estate fails to comply. In this action, the plaintiff repeatedly ignored requests for pre-suit investigation regarding the expert’s qualifications. The plaintiff refused to comply with the requirement even after the investigation period was extended for 90 extra days, the court imposed sanctions, and multiple letters were sent expressing concern about the medical expert’s qualifications. The trial court found that the actions of the personal representative were intended to deprive the defendants of all opportunities to meaningfully participate in discovery of the negligence claims.

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If you or your family member has suffered harm due to the negligence of someone else, the law limits the time you are able to seek legal relief from the party or parties that are responsible. For many civil cases, the statute of limitations is four years, but with medical malpractice actions, it is 2-4 years under Fla. Stat. § 95.11(4)(a) and (b). The deadline for a medical malpractice notice of intent to be served is two years from the date that the incident giving rise to the action is discovered or should have been discovered. All actions, regardless of when they are discovered, must happen within four years from the date of the incident unless the action is brought on behalf of a minor child before his or her eighth birthday.

At the beginning of this month, the Second District Appellate Court of Florida issued an opinion in Boves vs. Naples HMA (2D15-1680), which discusses what must happen to stay within the two-year statute of limitations for medical malpractice, and what must occur for the extension beyond the two years to apply. In this case, a personal representative filed a medical negligence lawsuit on behalf of the estate of a man who died following a bone marrow biopsy. The man died on February 26, 2012 after he suffered retroperitoneal bleeding. It was eventually determined that the bleeding contributed to his death and was caused by the biopsy performed.

The personal representative met with one of the doctors who performed the biopsy almost two months after the testator’s death. Three months later, she met with her attorney. Almost two years after the death, on February 2, 2014 and February 23, 2014, she received copies of letters from two medical experts, who concluded the testator’s death was the result of the retroperitoneal bleeding caused by the bone marrow biopsy. On February 25, 2014, the personal representative served the physicians who performed the biopsy with a notice of intent to pursue litigation. This was done by certified mail, but the physicians did not receive a copy of the notice until March 4, 2015.

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