Medical Malpractice

Published on: October 30, 2015

Tillson v. Lane – “Loss of Chance” Doctrine in Medical Liability Cases

Plaintiff in the medical malpractice case of Tillson v. Lane will have the opportunity to take his case to trial, following the Vermont Supreme Court’s reversal of an earlier trial court ruling that granted summary judgment to defendant on the “Loss of Chance” doctrine.

The “Loss of Chance” doctrine, while permitted in several jurisdictions, is not recognized in Florida, and neither is it recognized in Vermont, where this case originated. Under the “loss of chance” doctrine, plaintiffs are compensated for the extent to which a defendant’s negligence reduced victim’s likelihood of achieving a better outcome, assuming that likelihood was reduced by less than 51 percent.

The idea is that rather than treating a medical malpractice case as an all-or-nothing issue, claimants should be able to pursue action against health care providers whose actions or inaction resulted in loss of chance of a better outcome or of avoiding adverse consequences. But again, Florida has expressly rejected this doctrine, and so has Vermont, by essentially finding that health care providers should only be accountable for the damages proximately caused by negligent acts or omissions. So it was in this context that the Tillson case arose. Continue reading →

Published on: July 29, 2015

FL 4th DCA Finds Non-Economic Damage Caps in Medical Malpractice Litigation Unconstitutional

By Dean Freeman

Last year, the Florida Supreme Court took on the issue of caps on non-economic damages in medical malpractice wrongful death cases. The court ruled in Estate of McCall v. United States that capping damages in these cases was unconstitutional.

This was a major victory for those who had suffered the death of a loved one due to the negligent acts of a doctor or health care facility.

Now, Florida’s Fourth District Court of Appeal has taken the issue a step further. In the recent case of North Broward Hospital District et al. v. Kalitan, the court ruled non-economic damage caps for ALL medical malpractice personal injury cases is unconstitutional. In other words, the patient doesn’t have to die in order for damage caps to be lifted.

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Published on: June 15, 2015

Dean v. Central Georgia Women’s Health Center – $4.3M Awarded in Baby Death Case

By Dean Freeman

In a complex medical malpractice case involving the death of a baby born after just 23 weeks of gestation, a jury awarded the child’s parents $4.3 million.

The case, Dean v. Central Georgia Women’s Health Center, was against two obstetricians alleged to have failed in abiding by the standard of care, given the mother’s medical condition and history of miscarriages. Each doctor was found 50 percent liable for the child’s death, which the parents contended was foreseeable and preventable.

Although jurors listened to mountains of evidence over eight days, including expert witness testimony and extensive medical records, they deliberated just over two hours before reaching a verdict in favor of plaintiffs.

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Published on: March 9, 2015

Sutherland v. DCC Litig. Facility Inc. – Breast Implant Lawsuit Reconsidered

By Dean Freeman

A woman whose silicone breast implants began causing her serious health problems after they were installed 24 years ago will have another chance to bring her claim to trial, after a federal appellate court ruled a genuine issue of material fact remained regarding whether the claim was time-barred.

All states have varying time limits during which injury and wrongful death claims can be filed. There are some situations in which those time limits can be tolled, or wherein the clock doesn’t start ticking until injuries become apparent.

For example in Florida, a products liability action has to be brought within four years from the time of injury. A medical malpractice claim must be brought within two years.

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Published on: March 4, 2015

Uriell v. Regents of UC – $550k Failure to Diagnose Verdict Affirmed

By Dean Freeman

When it comes to medical malpractice, sometimes it’s as much what the physicians and health care professionals did not do as what they did.

This was the case for plaintiffs in Uriell v. Regents of UC, who accused a surgeon and surgeon’s employer of failure to diagnose breast cancer resulting in the wrongful death of patient, who was a wife and mother of three children.

A central question here was not only whether the doctor had breached the applicable standard of care, but also whether it had much effect. The type of cancer the patient had was almost certainly terminal. However, there was a real question as to how much longer she might have lived had the malignancy been diagnosed sooner.

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Published on: February 22, 2015

Monfore v. Phillips – $1M Medical Liability Verdict Upheld

By Dean Freeman

The U.S. Court of Appeals for the Tenth Circuit has a warning for defendants who are the subject of multi-defendant litigation: “Beware: When a fellow litigant settles on the eve of trial, you can’t bank on the right to claim surprise and rewrite your case from top to bottom.”

That is, in an age when virtually all cases settle in part or in whole – many just days or weeks before trial – no one can claim they are caught off-guard when that happens, even if it leaves one or two defendants to contend with greater liability while others have settled with plaintiff for a lesser amount in exchange for being excused as a defendant.

That’s what happened in the case of Monfore v. Phillips, which originated in Oklahoma.

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Published on: February 6, 2015

Cromer v. Children’s Hosp. Med. Ctr. of Akron – Foreseeability Factor in Med-Mal Case

By Dean Freeman

Claims of medical malpractice are litigated differently than those involving general negligence. It’s not enough that a patient suffers an adverse outcome while under a doctor’s care. There must be evidence indicating the physician (or other health care professional) deviated from the applicable standard of care and thus proximately caused or exacerbated injury to the patient.

This is a much higher burden of proof than in other kinds of cases.

In general negligence cases, the issue of foreseeability is often a central one. The court will weigh whether a hazard was known or should have been known in determining the duty to protect others from it. In medical malpractice cases, foreseeability might still be an issue, particularly when determining whether a doctor exercised reasonable care.

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Published on: July 11, 2014

E.Y. v. United States – Statute of Limitations Tolled in Some Cases

By Dean Freeman

In Florida, injured parties have a limited amount of time during which they can file a lawsuit to seek compensation. The amount of time they have varies based on the type of allegation.

For example, Florida Statute 95.11 holds general negligence claims must be filed within four years of the incident. Meanwhile, wrongful death and medical malpractice claims have to be filed within two years.

While the courts strictly adhere to these rules, our Broward County personal injury lawyers recognize there are some instances in which the statute of limitations can be “tolled,” or put on hold. While it is important to meet with an injury lawyer as soon as possible after the incident, it’s also notable that a case may not be a lost cause when the time elapsed exceeds these limits.
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Published on: June 8, 2014

Tenney v. Shapiro – $8M Verdict for Woman Paralyzed Following ER Visit

By Dean Freeman

A relatively healthy single mother of two young children was left permanently paralyzed following a series of emergency room treatments by doctors who failed to diagnose the source of pain in her chest, which ultimately led to her paralysis.

As a result, the plaintiff in Tenney v. Shapiro was awarded $8 million by a Broward Circuit Court jury. Fort Lauderdale medical malpractice attorneys understand the award would have been higher, except comparative negligence of a doctor who enjoyed sovereign immunity slashed the award by $11.25 million.

Attorneys for the defendant doctors in the case have indicated they intend to appeal the verdict.
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Published on: February 27, 2014

Nield v. Pocatello Health Services – Serious Outcomes of Hospital-Acquired Infections

By Dean Freeman

When Judy went to an Idaho hospital to receive treatment for infected wounds on her legs, she expected that hospital staff would treat her, and she would get better.

What she never anticipated was losing her leg due to a medically-necessitated amputation caused by a hospital-acquired infection. She has since filed a lawsuit, Nield v. Pocatello Health Services reviewed by the Idaho Supreme Court, which ruled her claim could proceed.

Our Coral Springs personal injury attorneys know hospital-acquired infections have the potential to result in serious health complications and can even lead to death. Advocates continue to push for tougher standards even as hospitals make millions treating infections resulting from their own negligence.
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