Medical Malpractice

Published on: January 16, 2017

Florida Supreme Court Rejects Medical Malpractice Arbitration Agreement

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.

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 →

Published on: November 29, 2016

Birth Injury Lawsuit Alleges NICU Nurse Injured Newborn

By Dean Freeman

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.

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 →

Published on: November 20, 2016

2nd DCA: Florida Med-Mal Injury Damage Caps Unconstitutional

By Dean Freeman

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.

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 →

Published on: July 19, 2016

$53M Birth Injury Verdict Awarded to Mother, Boy With Cerebral Palsy

By Dean Freeman

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.

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 →

Published on: June 9, 2016

Florida Supreme Court to Weigh Medical Malpractice Damage Cap on Attorney Fees

By Dean Freeman

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.

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 →

Published on: May 2, 2016

Study: Medical Errors are the No. 3 Cause of Death in U.S.

By Dean Freeman

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.

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 →

Published on: April 29, 2016

Bove v. Naples HMA – Statute of Limitations in Florida Medical Malpractice Lawsuits

By Dean Freeman

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.

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 →

Published on: February 20, 2016

Retained Foreign Objects in Surgery Can Cause Serious Illness, Death

By Dean Freeman

Recently, a hospital in the Central California city of Fresno was fined $86,000 for a medical error that almost killed a patient.

According to the Los Angeles Times, medical staffers inadvertently left a towel inside his body after surgery. It stayed there for three months until the error was discovered.

The state report indicates patient was admitted to the hospital in April 2014 to undergo a surgery on his bladder and prostate. Everyone expects to feel a little rough after surgery, but the patient later told investigators he wasn’t getting better. In fact, as the weeks wore on, he got worse. He lost 43 pounds. His bowels weren’t working properly. He had no energy, no stamina. He later said, “I felt like I might not live.”

He returned to the doctor to report his growing list of symptoms. Doctors conducted a scan and found a large mass inside his body. He would need surgery. He feared it was cancer. However, what they discovered was a blue surgical towel that had been left behind during the earlier procedure. Continue reading →

Published on: December 9, 2015

Debuhr et al v. Hern et al – Woman Sues Abortion Doctor, Clinic After Procedure Results in Sterility

By Dean Freeman

A couple from Nebraska is suing a doctor in Colorado, seeking more than $75,000 in damages, after it is alleged he botched an abortion procedure and left his patient sterile.

The federal claim, Debuhr et al v. Hern et al, was was filed in Colorado District Court in Denver.

Plaintiff asserts the physician’s negligence forced her to undergo a subsequent procedure to have her entire uterus removed. The lawsuit alleges the physician and the clinic are responsible for negligence after the doctor left a piece of the fetus’ skull inside her body.

While the physician’s website promises patients the “safest possible abortion care and termination of pregnancies for fetal anomalies,” that is not what plaintiff alleges she was given. Continue reading →

Published on: November 5, 2015

Study: Medication Mistakes Occur in at Least Half of Surgeries

By Dean Freeman

When a patient undergoes surgery – either under emergency circumstances or in the course of a long-anticipated treatment plan – there is an expectation that the doctors, nurses and anesthesiologists involved are going to use the utmost care and caution.

We all know there are many potential risks associated with surgery, but we do expect our health care providers to minimize those risks to whatever extent possible. But now, a new study published in the journal Anesthesiology reveals that medication errors are happening in about 50 percent of all surgical procedures. This figure, based on results at one prestigious hospital in Massachusetts, is significantly higher than previous estimates.

The American Association of Anesthesiologists, upon recently being presented this information, told the study authors that this significant issue is by no means unique to this location. The lead author recounted to The Washington Post that there was “not a lot of surprise” because it was widely-accepted that the self-reported numbers of medication errors during surgery were far too low. However, there was some dismay at the fact that the figure was so high, even as industry experts conceded it’s likely at least as high if not more excessive in other hospitals. Continue reading →