Articles Posted in Medical Malpractice

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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.

medical malpractice Lawyer 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 →

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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.doctor

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 →

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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. doctor

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.

Continue reading →

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The Florida Supreme Court late last month ruled in favor of a plaintiff fighting the enforcement of an arbitration agreement following a dispute regarding the care of her infant son, who was stillborn.baby

In the case of Hernandez v. Crespo, the state high court ruled the arbitration agreement between the child’s mother and the women’s clinic from which she was receiving treatment was invalid. Had the court upheld the agreement as binding, plaintiff would have been forced to handle her dispute through a private arbitration process, rather than the public courts.

Given that there are many downsides to the arbitration process for plaintiffs, this ruling is likely to have a positive effect for medical malpractice plaintiffs in Florida. Arbitration agreements have become the center of numerous types of civil disputes, from nursing home abuse to product liability. Companies are increasingly requiring customers enter into these agreements that are often unfair. In many cases, customers (or in this case, patients,) may not understand what exactly they are giving up. Continue reading →

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There is a lot of anxiety that comes along with being a new parent. One of those sources of anxiety shouldn’t be the doctors and nurses trusted to take care of your baby.pregnant

Unfortunately, severe birth injuries and infant deaths caused by medical malpractice are more common than some people think. The Florida Department of Health Bureau of Vital Statistics reports that between 7 and 8 of every 1,000 births in Florida results in fetal death. In the U.S., 27 out of every 1,000 births results in a birth injury. That means three babies born every hour suffer a birth injury, which amounts to 2,000 a month nationally.

Recently, the parents of one of those children have filed a lawsuit against a hospital, a doctor, two medical service providers and a nurse – all of whom they allege are liable for injuries to their newborn son, who was delivered 10 weeks early in 2015. This was the couple’s third child, and the mother developed a medical condition that resulted in her being forced to have the baby boy delivered by emergency Cesarean. Being premature, the boy suffered from digestive issues. According to WYFF NBC-4, the baby was transferred to a hospital in Greenville. Doctors recommended he be transferred to another location in Charlotte, but the family wanted him to be treated in Greenville because it would allow them be closer to their other two children until the boy was strong enough to go home. Continue reading →

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Florida’s 2nd District Court of Appeal has joined the 4th DCA in its finding that damage caps in medical malpractice injury lawsuits are unconstitutional. These damage caps, enacted by a 2003 overhaul of state law by then-Gov. Jeb Bush, limit the amount of money injury plaintiffs can receive for pain and suffering when medical malpractice results in a serious personal injury. doctor

The Florida Supreme Court is still reviewing the 4th DCA’s finding in a similar case, North Broward Hospital District v. Kalitan, in which the hospital is appealing the court’s finding that damage caps shouldn’t apply to injury lawsuits stemming from the breach of care acceptable care standards by doctors, nurses and other health care workers.

This conflict between the appeals court rulings and the law come after the Florida Supreme Court’s 2014 decision in McCall v. U.S., in which justices ruled non-economic damages in medical malpractice wrongful death lawsuits are not constitutional. So the sticking point in the current cases is whether that also extends to injury cases, where plaintiff did not die. Continue reading →

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A jury in Illinois has awarded a near-record $53 million to a young boy born with a serious brain injury after his mother says he suffered 12 hours of fetal distress during her full-term delivery.pregnant

The damage award was announced following a month-long trial in which the boy’s mother and legal guardian sued the hospital and several doctors for not sooner recognizing and acting on the obvious signs of fetal distress her unborn child was experiencing. The appropriate course of action, she contended, would have been an emergency c-section as soon as she was admitted to the hospital. This should have been clear, she said, as soon as she was hooked up to the fetal monitoring unit after she reported that her child had stopped moving inside her womb.

Unfortunately, it was around 2 a.m. when she arrived at the hospital and only student residents were on staff to care for her. Plaintiff attorneys presented evidence indicating those residents were either occupied, sleeping or unable to fully grasp or adequately respond to the severity of her situation. For 12 hours, her lawyers explained to jurors, her son was slowly suffocating. Continue reading →

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The Florida Supreme Court is slated to hear oral arguments today over the state’s claim bill process, and whether lawmakers have the right to undercut personal injury lawyer contingency fee agreements in awarding damages to plaintiffs injured by government entities. doctorpatientrelationship

In Searcy, Denny, Scarola, Barnhart & Shipley v. State of Florida, attorneys are appealing the refusal of the guardianship of the court to authorize $2.5 million in attorney fees to the firms involved in the litigation of a medical malpractice lawsuit. As it now stands, those firms are only collectively slated to receive $100,000.

Of course, we understand that sounds like a great deal of money. However, consider first of all that we’re talking about a catastrophic brain injury that was suffered by a baby in 1997 at a Fort Myers hospital. The family, alleging negligence by the hospital staff, secured legal counsel by entering into a contingency fee agreement that provided for an attorney fee of 40 percent of any recovery of a lawsuit that was filed, plus costs. The case finally went to trial in 2007. Jurors awarded $31 million to the family. But, because Florida law limits damages against government entities, that amount was slashed to just $200,000. The family had to petition legislators to pass a law that would award them damages more in line with their actual losses. Finally, in 2012, a claims bill was passed that directed Lee Memorial Health System to pay $15 million in damages, with $5 million of that payable in annual installments to a special trust for the care of the minor. But the bill stipulated: No more than $100,000 could be paid in attorney’s fees.  Continue reading →

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Medical mistakes by hospitals, surgeons, doctors, nurses and other health care professionals cause 250,000 deaths a year. That’s according to recent research by physicians at Johns Hopkins Medicine, who are urging the Centers for Disease Control and Prevention to revise their “Top 10” causes of death to include this problem. doctor5

According to the new research, which was conducted over an eight-year period, medical errors cause more deaths than respiratory disease. They also cause more deaths than suicide, kidney disease, the flue and diabetes – all combined. It’s a bigger problem than accidents, strokes and Alzheimer’s disease too.

The study authors say their findings make it clear that medical errors far surpass the current third-leading cause of death, respiratory diseases, which reportedly claim 150,000 American lives a year.  Continue reading →

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A statute of limitations is a statutory deadline on the amount of time a person has to file a lawsuit. These time limits are present in many criminal proceedings, but in civil actions as well. doctorpatientrelationship

A personal injury victim who tries to file a lawsuit after the statute of limitations has expired for that particular type of claim will almost certainly have their claim dismissed. That means no matter how legitimate the claim, if it’s not filed timely, there will be no damage recovery.

Florida has a two-year statute of limitations on medical malpractice acts, which is half the normal four years for other types of personal injury lawsuits. There is, however, a seven-year maximum statute of repose cap in cases that involve fraud, concealment or intentional misrepresentation by a defendant health care provider. The only other exception is if the claimant is a minor younger than the age of 8, in which case the seven-year cap won’t affect the child’s ability to bring the action before his or her eighth birthday.  Continue reading →

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