Articles Posted in Medical Malpractice

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When patients entrust medical professionals, facilities, and hospitals with their healthcare, an expectation of competent diagnosis and treatment consistent with the established standard of care in the community constitutes a reasonable expectation.  Many people are overwhelmed by the massive stack of intake paperwork they face as new patients.  Frequently, a waiver or release of liability often will purport to limit the legal rights and remedies of patients to seek financial compensation for injuries or other harm caused by the negligence of a health care provider.  Although many patients assume they cannot pursue a medical malpractice claim because their health care provider had them execute a document limiting the liability of the provider or facility, courts do not always enforce these types of provisions.  In this blog, our Miami medical malpractice lawyers review a court case decided a few weeks ago that allowed a plaintiff to pursue a medical malpractice claim despite signing a release of liability.

In Brooks v. Paul, the plaintiff’s lawsuit alleged that her physician and other defendants negligently cut her ureter during spinal fusion surgery. The plaintiff filed a medical malpractice lawsuit, but the defendants sought summary judgment by claiming that the release signed by the plaintiff shielded the medical providers from liability. The language of the release provided in pertinent part that the medical providers “will not carry any medical malpractice insurance.  Being of sound mind and sound body, I hereby acknowledge this fact and agree not to sue [the medical providers] for any reason.  My reason for doing this is that I realize that [the medical providers] will do the very best to take care of me according to community medical standards.” Continue reading →

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While Congress and President Trump spar over the shape of health care in the future, tort reform has been promoted by some as a way to control costs.  The insurance industry, politicians, and the American Medical Association (AMA) contend the medical profession has been bombarded with massive verdicts from a highly litigious public.  These misleading claims ignore the special barriers to pursuing a medical malpractice lawsuit like pre-suit requirements that include obtaining an expert evaluation to establish a reasonable basis for the lawsuit among other obstacles.  When an infant suffers a birth injury that causes cerebral palsy or other lifelong debilitating birth defects, the emotional and financial consequences on the child and parents can be overwhelming.

In this blog, our medical malpractice lawyers review a Florida Court of Appeals decision that eased the burden on parents pursuing medical malpractice claims for birth injuries.  The 2nd DCA in Port Charlotte HMA, LLC v. Suarez evaluated the constitutionality of Florida’s statutory limit on non-economic damages in medical malpractice lawsuits.  The mother of a child sued a hospital and medical providers for injuries arising from her child’s obstetrical care during her pregnancy.  The expectant mother sought medical attention at the defendant hospital on multiple occasions for symptoms consistent with a diagnosis of early onset preeclampsia.  This medical condition, which can be fatal, affects many expectant moms.  Continue reading →

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If your infant is injured during the birthing process or immediately before or after delivery, the news is devastating.  Approximately one in 323 children are identified with motor and developmental disabilities associated with a diagnosis of cerebral palsy (CP) according to the CDC.  Medical malpractice lawsuits, insurance company hurdles, and the complexities of litigation might not be your highest priority.  However, parents of an infant who experiences a birth injury must be prepared for enormous medical expenses and supportive care throughout their child’s lifetime.  In this blog, our medical malpractice attorneys discuss a lawsuit illustrating the unique complexities associated with the statute of limitations and attorney-client privilege in the context of a birth injury claim.

The plaintiff was a mother who gave birth to a daughter on July 16, 2005.  The mother was informed that her daughter was diagnosed with cerebral palsy by a neurologist in early 2007.  The plaintiff filed a motion to extend the statute of limitations for pursuing a medical malpractice claim against the physicians, clinics, and hospitals.  The plaintiff filed a notice of intent to commence litigation of the medical malpractice claim in November 2013.  Continue reading →

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Our personal injury attorneys want to call attention to a recent decision by the Supreme Court of Texas that presented a good news-bad news scenario for a plaintiff who alleged her husband died because of postmortem medical malpractice.  While the court’s ruling in the case might well open the door to medical malpractice claims for errors or omissions that occur after a patient has died within the state, the plaintiff in the wrongful death action ended up having her case barred by the statute of limitations.

In other words, our Florida medical malpractice attorneys note that the court’s analysis was potentially beneficial to future plaintiffs, but the widow, in this case, might receive nothing for the harm suffered by her husband.

In the case of Christus Health v. Carswell, the husband of the plaintiff was admitted to the defendant hospital with complaints of severe pain.  A doctor at the facility initially prescribed narcotics, but they were discontinued when the patient experienced an adverse reaction.  However, a subsequent medical provider re-initiated the narcotics after the patients again complained of intense pain.  The patient died a short time later. Continue reading →

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Medical malpractice claims constitute a significant number of the negligence actions filed in Florida state courts. The types of lawsuits are complex in nature and may invoke statutory provisions that govern the rights and obligations of parties involved. Because Florida statute tightly regulates medical malpractice claims, statutory definitions are critical, and as the case below illustrates, such definitions may determine whether plaintiffs can move forward with their claims.

In Townes v. National Deaf Academy, LLC, a patient in a residential treatment facility required a leg amputation after she was put in a disciplinary hold by a care provider at the facility. The place in question operated as both a residential treatment facility and a school for autistic, hard of hearing, or deaf individuals who possess behavioral and psychiatric conditions. The facility staff consists of nurses, therapists, and psychiatrists who provide medical and educational services. The patient in question suffered from multiple mental disabilities, such as post-traumatic stress disorder (PTSD), bipolar disorder, and impulse control disorder. As part of the patient’s care plan, staff members implemented Therapeutic Aggression Control Techniques where they restrained her physically after senior employees made a determination that such techniques were warranted after the patient experienced a behavioral episode. Continue reading →

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The use of pain medication is rampant in the United States. Whether it is prescribed for back pain, cancer patients, or for those who recently underwent surgery, the use of this type of medication has grown across all ages and all types of people. As a result, our Miami personal injury lawyers see how it arguably has become the norm, which influences us to forget just how dangerous pain medication can be.

We all know about the addictive nature of pain medication, but we tend not to think about how a pharmacy error can be deadly. Pain medication is often the only form of pain relief available, so the dosage must be accurate, or serious injury, and even death, may occur. The pharmacy is the last step between the doctor prescribing the medication, and the patient ingesting the medication. Therefore, as patients, we heavily rely on a pharmacist’s expertise to dispense the proper dose of a medication.

Tragedy Strikes A 6-Year-Old Girl

In August 2013, a mother sued her longtime pharmacy for providing her 6-year-old daughter with a toxic dose of morphine that ended her life. According to the family’s attorney, the pharmacy provided a dose of morphine that was ten times greater than what had been prescribed. The dose of morphine was in liquid form. Just one dose was too much, with the young girl’s fate lying in the hands of the pharmacist.

This young girl had sickle cell anemia, a disease that causes excruciating pain. The small dose of morphine that was supposed to alleviate the young girl’s suffering ultimately ended her life. Had the pharmacy simply filled the prescription as directed by the doctor, this young girl may still be alive today.

What We Expect From Our Pharmacists
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Friends and family members often ask “hey, what’s tort reform? Following I will attempt to answer this question about a legal topic that is more important to our society than most of us realize.

What Is A Tort?

However, before discussing tort reform I believe it is best to explain what we mean by “tort”. Contrary to popular belief, the term tort (as used in the legal World) does not refer to a cake or other form of delicious pastry. It comes from English Common Law and it refers to the breach of a civil duty by an individual (or a corporation) to another person. Such civic duty is different from a contractual or an equitable duty: contractual duties are duties arising from an agreement reached by the parties. Equitable duties are those springing from rights a person may have.

While many wrongful acts amount to both torts and crimes, they are different: a tort is typically dealt with by the victim filing a lawsuit against the wrongdoer, who is known as the tortfeasor. A crime, on the other hand, is dealt with by the state prosecuting the accused. One more important difference: while the remedy for a crime is the sentencing of the accused to death or to a prison term, the remedy for a tortious act is typically money damages.

Finally, torts come from three different kinds of actions:

1. Negligent actions. Most lawsuits are based on negligence:

a. Car, motorcycle and truck accident cases;

b. Slip or trip and fall cases;

c. Medical malpractice cases;

d. Product liability or defective products cases;

e. Pharmacy error cases;

f. Negligent security cases;

g. Amusement park accident cases;

2. Intentional acts:

a. Assault;

b. Battery;

c. False Imprisonment;

d. Intentional Infliction of Emotional Distress;

e. Fraud.

3. Quasi-torts or liability torts. These can be categorized as statutory violations. Among others they include:

a. Violation of consumer protection laws;

b. Worker’s compensation cases;

c. Violations of anti-discrimination laws.

For the purposes of this post, we will only deal with torts caused by negligent acts.
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A bill overhauling medical malpractice lawsuits in Florida was passed by the legislature on Wednesday, according to the Insurance Journal.

Targets Out of State Doctors

The bill’s primary target are doctors from other states that testify as expert witnesses in medical malpractice lawsuits in Florida courts. Under the new law, which Governor Rick Scott is expected to promptly sign, doctors from other states who wish to act as expert witnesses in medical malpractice cases litigated in Florida courts, must apply for a certificate which allows the State of Florida to subsequently discipline them if their testimony is found to be “deceptive or fraudulent”.
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Hospitals across the country have attempted to protect themselves from medical malpractice suits by classifying doctors who work there as independent contractors rather than employees. Under the law, an employer is liable for the acts of its employee, but most times is not liable for the acts of an independent contractor. Though patients often think of the doctor as a member of the hospital staff without a second thought, some of the consent forms signed during a hospital stay expressly state that the doctor is an independent contractor. This may act as a bar to success in a lawsuit for malpractice committed by a doctor in a hospital setting.

Before releasing a hospital from liability for medical malpractice, be sure to examine the contract with the doctor and the admissions forms. Certain factual scenarios will still allow for a cause of action to be brought against the facility for hospital malpractice.

Hospital Employee Errors Can Lead to Hospital Liability

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In 2006, nearly 13,000 Florida women were diagnosed with breast cancer, according to the most recent statistics published in the Florida Annual Cancer Report. The same study showed that 33 percent of the breast cancer cases had reached an advanced stage at the time of initial diagnosis.

The key to successful treatment of breast cancer is early and accurate detection. When breast cancer is misdiagnosed or undetected and allowed to reach an advanced stage without treatment, the breast cancer patient’s chances of survival rapidly diminish.

For example, a woman who is diagnosed with Stage 0 cancer, also called ductal carcinoma in situ (DCIS), has a 100 percent chance of survival. However, a woman whose cancer was not diagnosed until the cancer escalated to Stage III cancer has just a 67 percent chance of survival after five years, based on the 2005 National Cancer Data Base and American Cancer Society statistics.

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