medical malpractice attorney

Published on: June 11, 2018

Medical Malpractice Lawsuit: Misplaced Catheter Causes Blood Infection, Death

Urinary catheters are used in many medical settings to help patients with bladder dysfunction (or temporary inability, sometimes due to surgery or other conditions) to continuously drain urine. They can be inserted in men and women, and research has established they are used by between 15 percent and 25 percent of all patients at some point during a hospital stay (with greater prevalence among patients whose stays are longer). Most catheters are only intended for short-term use, under 30 days typically.

Although catheters can be medically necessary, they are invasive devices and serious problems can arise when they are used unnecessarily or aren’t removed when they are no longer needed. There are far too many instances wherein older patients with incontinence have catheters inserted when they medically don’t need it – simply for staff convenience. These devices are associated with a greater death risk – four times higher during hospitalization and twice as high three months after discharge.

Recently in Missouri, the family of a 52-year-old veteran soldier filed a medical malpractice lawsuit over what they say was a misplaced catheter. According to the Kansas City Star, the patient was living in a nursing home due to multiple sclerosis and a traumatic brain injury. He was being seen at a Veteran’s Affairs urology clinic for a condition called neurogenic bladder, which is a common complication of multiple sclerosis that can cause one’s bladder to be either underactive or overactive. Continue reading →

Published on: May 19, 2018

Otherwise “Unconstitutional” Caps in Med-Mal Lawsuit Damages Alive & Well – Thanks to Arbitration

By Dean Freeman

Caps on non-economic damages in medical malpractice lawsuits – set at $250,000 per incident under Gov. Jeb Bush – are unconstitutional. The Florida Supreme Court decided this soundly – first in the 2015 case of Estate of McCall v. U.S. (medical malpractice wrongful death cases) and again in 2017 with its ruling in North Broward Hospital District v. Kalitan (medical malpractice personal injury cases).

But hospitals in Florida have found a loophole to this in the form of arbitration agreements. This was recently underscored in a case decided by Florida’s Fourth District Court of Appeal. In Plantation General Hospital v. Belzi, the appellate panel reversed a $4 million damage award and remanded to the lower court for a recalculation of damages – specifically to be in accordance with the provisions of F.S. 766.207, which still allows the $250,000 non-economic damage cap in cases handled by “voluntary arbitration.”

The Belzi case involved the death of a 24-year-old wife and mother who lost so much oxygen during childbirth, she was left in a vegetative state and died three months later. Her family filed a wrongful death medical malpractice lawsuit against the doctor and the hospital alleging their medical negligence resulted in the young woman’s death. Her child, delivered via emergency c-section, survived. Continue reading →

Published on: May 10, 2017

Report: Fewer Medical Malpractice Claims Win, But Payouts Higher

By Dean Freeman

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.

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 →

Published on: March 11, 2017

Loss of Chance Doctrine in Florida Medical Malpractice Claims

By Dean Freeman

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.

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 →

Published on: January 16, 2017

Florida Supreme Court Rejects Medical Malpractice Arbitration Agreement

By Dean Freeman

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: 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 →