Medical Malpractice

Published on: October 26, 2018

How Long Does a Medical Negligence Claim Take? Orlando Medical Malpractice Lawyer Weighs In

One of the most frequently-asked questions of an Orlando medical malpractice lawyer is: How long does a medical negligence claim take? It’s an important one, so we understand why it is raised so often. However, the best answer we can give is: It depends.

Some medical negligence claims can take a few months to resolve. Others can take several years. In cases wherein plaintiff must lobby a state lawmaker to file a legislative claims bill in order to collect on a trial court’s medical malpractice verdict against a public hospital or practitioner, it’s not unheard of for it to take over a decade. The same is true of general negligence claims, but one of the main reasons medical negligence claims can take so much longer is not only are they more complex, plaintiffs must meet the pre-lawsuit screening standards set forth in Chapter 766 of Florida Statutes, which deals with medical malpractice and related matters. These include the requirement to have an expert witness who meets the qualifications as set forth in F.S. 766.102, required notice before filing action, court-ordered arbitration, mandatory mediation and settlement conferences and immunity for a number of entities.

This is why many Orlando medical malpractice lawyers and injury attorneys will try if possible NOT to have the case classified as such. Although some cases can be categorized no other way, not all injuries that occur in a hospital are the result of medical negligence.

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Published on: July 12, 2018

Birth Injury Verdict Results in $11.35M Verdict for Brain Injury

By Dean Freeman

Living in an age of medical and scientific advancements, we have a tendency to think of our health care providers – and specialist doctors in particular – as being infallible. The truth of the mater is they are simply human who can cause harm even when they are trying to help. That’s the case with most birth injuries that give rise to medical malpractice claims.

Recently, a jury in Ohio awarded $11.35 million to a boy, now 16, who reportedly suffers from intellectual and social disabilities after suffering a brain injury at birth. His parents say the OB/GYN and her practice were negligent in the delivery of the boy in April 2001. According to court records obtained by The Akron Beacon Journal, the child was born via vaginal delivery, wherein the doctor used a vacuum and forceps. This was despite the fact there were several indications the boy needed to be delivered via C-section. These factors included the fact that patient was a first-time mother, the baby was large and also his head was facing the wrong direction. Plaintiffs alleged the baby was traumatized as a result of the delivery, with evidence of contusions and bruising.

He was thereafter hospitalized in the facility’s neonatal intensive care unit, where doctors explained the child may suffer lasting injuries. Although he initially appeared to function normally, social and developmental delays became apparent as he got older. The couple was hopeful the child would “grow out of” these issues, but by the time he was between 9- and 10-years-old, they concluded that the reality was he would not. It was at that point the parents contacted a birth injury lawyer to help investigate their claim. Continue reading →

Published on: June 11, 2018

Medical Malpractice Lawsuit: Misplaced Catheter Causes Blood Infection, Death

By Dean Freeman

Urinary catheters are used in many medical settings to help patients with bladder dysfunction (or temporary inability, sometimes due to surgery or other conditions) to continuously drain urine. They can be inserted in men and women, and research has established they are used by between 15 percent and 25 percent of all patients at some point during a hospital stay (with greater prevalence among patients whose stays are longer). Most catheters are only intended for short-term use, under 30 days typically.

Although catheters can be medically necessary, they are invasive devices and serious problems can arise when they are used unnecessarily or aren’t removed when they are no longer needed. There are far too many instances wherein older patients with incontinence have catheters inserted when they medically don’t need it – simply for staff convenience. These devices are associated with a greater death risk – four times higher during hospitalization and twice as high three months after discharge.

Recently in Missouri, the family of a 52-year-old veteran soldier filed a medical malpractice lawsuit over what they say was a misplaced catheter. According to the Kansas City Star, the patient was living in a nursing home due to multiple sclerosis and a traumatic brain injury. He was being seen at a Veteran’s Affairs urology clinic for a condition called neurogenic bladder, which is a common complication of multiple sclerosis that can cause one’s bladder to be either underactive or overactive. Continue reading →

Published on: May 19, 2018

Otherwise “Unconstitutional” Caps in Med-Mal Lawsuit Damages Alive & Well – Thanks to Arbitration

By Dean Freeman

Caps on non-economic damages in medical malpractice lawsuits – set at $250,000 per incident under Gov. Jeb Bush – are unconstitutional. The Florida Supreme Court decided this soundly – first in the 2015 case of Estate of McCall v. U.S. (medical malpractice wrongful death cases) and again in 2017 with its ruling in North Broward Hospital District v. Kalitan (medical malpractice personal injury cases).

But hospitals in Florida have found a loophole to this in the form of arbitration agreements. This was recently underscored in a case decided by Florida’s Fourth District Court of Appeal. In Plantation General Hospital v. Belzi, the appellate panel reversed a $4 million damage award and remanded to the lower court for a recalculation of damages – specifically to be in accordance with the provisions of F.S. 766.207, which still allows the $250,000 non-economic damage cap in cases handled by “voluntary arbitration.”

The Belzi case involved the death of a 24-year-old wife and mother who lost so much oxygen during childbirth, she was left in a vegetative state and died three months later. Her family filed a wrongful death medical malpractice lawsuit against the doctor and the hospital alleging their medical negligence resulted in the young woman’s death. Her child, delivered via emergency c-section, survived. Continue reading →

Published on: March 21, 2018

Report: Florida Surgical Centers Booming, But Ill-Equipped for Emergencies

By Dean Freeman

The number of surgical centers in the U.S. has ballooned in recent years to more than 5,600. These facilities started several decades ago as a low-cost alternative for patients undergoing minor surgeries. However, these centers now outnumber hospitals, and federal regulators are approving them for an increasing number of complex procedures. The goal is to reduce federal health care costs. However, it seems many patients are paying the price, according to a new report by Kaiser Health News and USA Today.

The report indicates that staffers at these centers are calling 911 thousands of times annually with complications that range from minor to deadly, but we don’t know exactly how big the problem is because there is no national authority that tracks these incidents. The journalists’ analysis, based on legal filings, autopsy records and medical reports contained in more than 12,000 federal and state inspection records, as well as interviews with physicians, patients and health policy experts, indicates that at least 260 of these patients have died in the last five years as a result of in- and out-patient surgeries at these centers. Some patients were as young as 2-years-old, with some undergoing routine surgeries, like tonsillectomies and colonoscopies. Others are undergoing complex operations like spinal surgeries.

These centers and physicians share in the reward for these surgeries because doctors can earn their own fee plus a cut of the facility fee when they own shares in the center. However, the biggest risk to patients occurs with the fact that while Medicare requires surgical centers to be within 15 miles of an emergency room, it can still mean up to a half hour can pass between the time a 911 call is made and the time one arrives at the ER. Some critics and medical malpractice attorneys argue that certain patients with underlying medical issues or those undergoing serious procedures should only be treated in a hospital in the first place – if they should have these operations at all. Many of these facilities lack the kind of lifesaving training or equipment needed to address a potentially serious complication. These can include simple things like tools necessary to open an airway or training necessary to stop a patient from bleeding to death. At least two dozen patients reportedly died within minutes or days of undergoing surgical center operations. Continue reading →

Published on: January 12, 2018

South Florida Sees Increase in Deaths Involving Plastic Surgery

By Dean Freeman

Plastic surgery, like any surgery, carries risks. While it is not typically as dangerous as something like open heart surgery in most cases, patients are trusting the skill, experience, and professionalism of their surgeons and anesthesiologists to not only do an aesthetically good job, but also to perform the operation in a safe manner so as not to result in serious personal injury or death. If a doctor fails to adhere to the requisite standard of care, plaintiff may need to file a medical malpractice lawsuit to obtain compensation for the damages caused.

According to a recent news article from the Miami Herald, a woman died due to complications involving what is known as a “Brazilian butt lift” operation. Specifically, the medical examiner found that clots of fat from the surgery entered her heart and lungs causing an embolism resulting in her death. In the past four years, six women, including her, have died in Miami-Dade County from complications arising from this procedure. Continue reading →

Published on: December 20, 2017

Florida Medical Malpractice Lawsuits Rarely Lead to Medical Board Discipline

By Dean Freeman

Medical malpractice lawsuits in Florida are an indication to the state’s Department of Health that a doctor may be a potential danger to current and future patients. Regardless of the outcome of the case, the state is required by law to review those cases, identify problem doctors and take appropriate action on their license to practice medicine. Doctors could receive an emergency suspension order, probation, long-term suspension or revocation.

However, a recent investigation by journalists at The Sun Sentinel revealed that of the 24,000 closed state and federal medical malpractice lawsuits in Florida over the last 10 years, disciplinary charges were filed by the state only 128 times. That breaks down to one-half of 1 percent. A majority of medical malpractice lawsuits in Florida are settled prior to trial, but reporters discovered even those that ended in a jury verdict for the plaintiff rarely resulted in any action from the state board.

What this means is doctors who have been proven to place their patients’ well-being and lives and jeopardy are continuing to practice without sanction, restriction or oversight. Medical malpractice insurance typically covers the monetary damages as determined, and the physician continues on without further action. Continue reading →

Published on: June 30, 2017

Florida Supreme Court Strikes Down Medical Malpractice Damages Cap

By Dean Freeman

According to a recent news article from the Orlando Sentinel, the Florida Supreme Court has just ruled that the existing damages cap on medical malpractice lawsuits is unconstitutional. The bill in question was signed into law by then-Governor Jeb Bush in 2003. It was very controversial at the time and is no longer the law in our state.

The judges held, through their majority opinion, that caps on noneconomic damages are arbitrary, serve only to reduce a plaintiff’s recovery in the case of serious injuries, and are only for the benefit of the insurance companies. The state officials and Bush originally justified the law on the basis that we were facing what they called an insurance crisis. Continue reading →

Published on: May 10, 2017

Report: Fewer Medical Malpractice Claims Win, But Payouts Higher

By Dean Freeman

A new analysis by Harvard Medical School researchers indicates that while the number of successful medical malpractice claims in the U.S. has fallen – dramatically so – the average payout in successful claims has risen.

Between 1992 and 2014, the number of medical malpractice claims nationally that resulted in a damage award to the plaintiff fell by a stunning 56 percent, researchers reported. However, the average amount that was paid out for claims that were successful climbed by almost 25 percent, from an average of $287,000 between 1992 and 1996 up to $353,000 from 2009 to 2014.

There are a few things going on here. The first is the very obvious effect of tort reform on medical malpractice lawsuits. Lawmakers across the country, under intense pressure from big industry lobbyists, have steadily carved away at plaintiff access to the courts for claims of negligence by medical professionals. Continue reading →

Published on: March 11, 2017

Loss of Chance Doctrine in Florida Medical Malpractice Claims

By Dean Freeman

In most medical malpractice lawsuits, plaintiffs have to prove “but-for” causation. What this means is but for the negligence of the medical professional, plaintiff would not have suffered an adverse outcome.

However, this burden of proof would leave those who already had terminal conditions or residual chances of survival or existing serious illnesses with little or no chance of recourse for their doctor’s medical negligence. Enter the “loss of chance” doctrine. It’s generally used in medical malpractice lawsuits involving a plaintiff who can’t prove “but for” causation because he or she was likely to die from the condition even before the doctor was negligent. In these cases, the doctor’s negligence usually involves the failure to diagnose or treat, which causes plaintiff a loss of chance to survive or have a more optimal outcome.

In a recent case before the Washington Supreme Court, justices were asked to review two questions in a “loss-of-chance” medical malpractice lawsuit:

Should the court use a “but for” or “substantial factor” standard of causation in these types of claims;
Should evidence relating to contributory negligence be excluded based on plaintiff’s failure to follow a physician’s orders.

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