DeBary Legal News - Medical Malpractice

There are dangers inherent in any medical procedure. It is the job of the practitioner to explain every risk to each patient so that the patient can make an informed decision and decide which risks are acceptable and which are unacceptable.

For instance, LASIK (Laser-Assisted in Situ Keratomiluesis) eye surgery, a very popular elective procedure performed by an ophthalmologist, is an outpatient surgery used to correct vision problems. It is minimally invasive, and the risks are much smaller than other kinds of surgery, with a 96% success rate. Even so, the surgery may result in over- or under-correction; glare, halo, or double vision; astigmatism; return to pre-surgery vision; even blindness. Some people are not good candidates for the surgery for various reasons. If the surgeon has not revealed the complete risks and the complications that can occur post-surgery before time, and injury results, he or she is guilty of medical malpractice.

More invasive operations, of course, carry many more dangers and risks. The laws of medical malpractice are extremely complex. There are pre-suit requirements, statute of limitations, and damage caps, which vary from state to state.

For example, in Florida, you must start the lawsuit within two years of discovering the injury, or at the latest, four years from when the medical malpractice occurred. You must serve a notice of intent to sue before you can sue in court. Then there is a settlement process that lasts 90 days. Florida has different caps based on what kind of damages are named in the suit. Other damage cap rules apply to hospitals and emergency care providers. And this is the tip of the iceberg.

If you think this is complicated and daunting, you’re absolutely right. In addition to knowing how the medical legal system works, there are medical documents to be reviewed, experts to consult, evidence and testimony to gather, and knowledge of how the opposition will present its defense. Practitioners spend millions of dollars in malpractice insurance in anticipation of just such a lawsuit. You need the best defense available.

If the failure of a health care provider to offer reasonable, standard care results in pain and suffering, loss of income, paralysis, brain injury, or wrongful death, Paul Bernardini Law is standing by to offer you the best protection for your rights.

As soon as you feel you or a loved one has suffered from medical malpractice in any way, please contact Paul Bernardini Law at 386-258-3453. With our years of experience, we will take your side and skillfully help you navigate the intricate maze of your malpractice lawsuit. The consultation is always free.

Testimony that a subsequent treating physician would not have treated a patient-plaintiff differently had the defendant physician acted within the applicable standard of care is irrelevant and inadmissible and will not insulate a defendant physician from liability for his or her own negligence. The standard of care in medical malpractice actions is whether each individual physician-defendant acted in a reasonably prudent manner. The burden on a plaintiff with regard to causation is only to establish that adequate care by the physician more likely than not would have avoided the plaintiff's injury. Saunders v. Dickens, 39 Fla. L. Weekly S494 (Opinion Filed July 10, 2014).

On March 20, 2014, the Supreme Court of Florida adopted a standard jury instruction in civil cases. The instruction states that subsequent injuries caused by medical treatment are the responsibility of the original defendant. 39 Fla.L.Weekly S146.

The Supreme Court of Florida voted in favor of the ordinary person in the case of Estate of Michelle Evette McCall v. United State of America. In this case, decided March 13, 2014, the Supreme Court of Florida held that the statutory maximum cap on non-economic damages set forth in Florida Statute 766.118 (Medical Negligence) violates the right to equal protection under Article 1, Section 2 of the Florida Constitution and is therefore invalid. Accordingly, the limit on wrongful death non-economic damages in medical malpractice actions set forth in Florida Statute 766.118 is held to be unconstitutional under Florida Law.

In this interesting case, the Supreme Court of Florida also notes certain truths which you may not know if you watch television programs, most of which are sponsored by insurance companies.

First, the Supreme Court of Florida discussed whether or not there is a shortage of doctors in Florida. Testimony at the hearings provided by both the Department of Health and the Agency for Healthcare Administration and various other people was that at the present time, there are, in fact, more doctors licensed to practice in Florida today then there were five years ago. Further, applications to the medical schools in the state of Florida are up and have been consistently for the past number of years. Emergency rooms have not been closing as a result of medical malpractice. As a matter of fact, the Department of Health and the Agency for Healthcare Administration both testified under oath that they could not cite any incidents where because of the medical malpractice crisis, patients were denied some type of care or directed some place else. The reports of physician departures in Florida were anecdotal, not extensive, and in some cases were determined to be inaccurate. For example, State Medical Society officials told the committee that Collier and Lee Counties lost all of their neurosurgeons due to malpractice concerns. However, the study found at least five neurosurgeons currently practicing in each county as of April 2003. Provider groups also reported that malpractice pressures have recently made it difficult for Florida to recruit or retain physicians of any type. However, over the past two years, the number of new medical licenses issued has increased and physicians per capita has remained unchanged. This is from the government accounting office. An article titled “Medical Malpractice: Implications of Rising Premiums on Access to Health Care, No. GAO-03-836 (August 2003).” Moreover, the Supreme Court of Florida noticed that for those doctors who are leaving Florida or who have left Florida, there was no concrete evidence to demonstrate that high malpractice premiums were the cause of the departure. The entire case can be found at 39 FLW S110 (March 14, 2014).

In any event, after evaluating the current information, the Supreme Court of Florida concluded there was no rational basis existing to justify continued application of the limit on non-economic damages under Florida Statute 766.118.

Fifth District reverses summary judgment on statute of limitations where doctor led patient to believe injury was normal result of surgery and would improve over time. Baxter v. Northrup, 39 FLW D4 (Fla. 5th DCA 12-20-2013).

Recent case from the Florida Supreme Court on Medical Malpractice

In holding that the trial court's order, which required production of records of adverse medical incidents of patients not having the same or similar condition, treatment, or diagnosis as the required patient, departed from the essential requirements of law, the District Court of Appeal improperly relied on section 381.028(7)(a), Florida Statutes, as the subsection had been declared to be invalid by the Florida Supreme Court. Ampuero-Martinez V. Cedars Healthcare Group. Opinion Filed January 30, 2014. Full Opinion at Supreme Court Opinions Section, page 60a.

In Baxter v. Northrup, 39 FLW D4 (5th DCA, December 20, 2013), Judge Torpy of the Fifth District Court of Appeal in Daytona Beach wrote a well reasoned opinion concerning the statute of limitations in a medical malpractice claim. Generally, the statute of limitations is two years. However, when there is a question of fact as to when the plaintiff knew or should have known of the possibility of medical negligence, the statute is two years from the date the plaintiff became aware that he had a possible claim. In no event can the time be more than four years.

This is an important case because the plaintiff became aware that he had a foot drop on November 3, 2004. The Fifth District said that even though the plaintiff became aware that he had a foot drop, he was not aware that his foot drop was caused by negligence. The Fifth District Court of Appeal held that a jury could take into consideration the post operative treatment and the discussions that occurred when the plaintiff was specifically told that having a foot drop was normal. This means the jury will decide the time limit when the question of time limit is a factual question.

There is a very difficult question as to whether or not Florida courts have jurisdiction over certain cruise ship doctors.  Each case depends upon its own facts.  A good review of this particular law is set forth in Taylor v. Gutierrez, 38 Fla. L. Weekly D2557 (3rd DCA, December 4, 2013).  Suing a cruise ship doctor within the state of Florida may not always be possible.

The Second District Court of Appeal held that it was proper for the trial judge to exclude evidence that the defendant had repeatedly failed board certification exams. The plaintiff wanted to introduce evidence for the jury to see that the defendant doctor had repeatedly failed the board certification exam. Second, the plaintiff wanted the trial judge to disqualify itself after the trial judge wrote a derogatory note about the plaintiff. The Court of Appeals held that the fact that the doctor failed the board certification test was not relevant. However, the Court did agree that the Judge’s misconduct required the Judge to be disqualified. M.B. v. S.P., M.D., and CDMG, P.A., 38 FLW D2192 (October 18, 2013).