Delay in timely treatment and/or diagnosis that results in patient harm can be legal grounds to pursue a Florida medical malpractice claim against a healthcare provider. As our Palm Beach medical malpractice attorneys can explain, building cases like these requires using expert witness testimony to establish that the defendant health care providers failed under the circumstances to abide the applicable standard of care for their medical specialty.
Recently, a Florida jury awarded $2.6 million to the family of a man who died of a stroke – an occurrence the jury found was preventable had he been properly treated by the physicians and hospital.
As reported by Law.com, the 62-year-old decedent was seen by a vascular surgeon in the early summer of 2016. This was on the recommendation from his primary care doctor, who believed the patient’s carotid arteries (which supply blood to the brain, neck, and face) were “occluded,” or blocked. Upon examination, the surgeon diagnosed the patient with severe atherosclerosis. The man’s carotid arteries were 90 percent blocked. The surgeon recommended a procedure called an endarterectomy to remove the buildup. But it wasn’t necessary to act right away, the surgeon said, because the man had no symptoms. Instead, the procedure was scheduled for 18 days later. If the patient did become symptomatic, he was to go immediately to a hospital.
One week before the scheduled procedure, the patient became dizzy and weak. He rushed to a local hospital and was promptly admitted. The hospital contacted the office of the vascular surgeon, who was on vacation. Ultimately, they did obtain records of the scheduled surgery from the vascular surgeon’s office. Two other surgeons did not come to treat the patient immediately, but they did bump up the surgery to the following morning. However, the patient deteriorated overnight. He fatal stroke hours before the scheduled surgery.
The man’s widow, as representative of his estate, filed a Florida medical malpractice lawsuit against the first vascular surgeon, his practice, and the hospital.
She alleged the surgeon and the hospital staff failed to properly treat her husband. Plaintiff’s expert witness, a vascular surgery expert, asserted the patient should have been hospitalized by the surgeon the same day he was first examined, and the endarterectomy should have been scheduled immediately. Had he undergone that procedure prior to his stroke, the expert witness said, the patient would have had almost a guaranteed chance of full recovery. The delay in treatment, he opined, was fatal.
Further, plaintiff’s hospital expert asserted that the staff at the hospital didn’t treat the patient fast enough either. More than 10 hours passed before the hospital contacted the vascular surgeon’s office. When they did connect with the surgeon’s office, they did not pass on critical diagnostic tests the hospital had conducted. The nurses, according to expert witnesses, didn’t follow the hospital’s own protocol for stroke patients.
Attorneys for the hospital, however, asserted the two vascular surgeons who treated the patient just before death were liable as “Fabre defendants.” (These individuals hadn’t been named as defendants by plaintiffs, and thus could not be compelled to pay damages, even if they were found liable. More on this later.) They didn’t come to the hospital soon enough and should have conducted the artery-clearing procedure immediately. An attorney for the first surgeon argued his client had abided the applicable standard of care because emergency surgery wasn’t warranted on someone with this condition who wasn’t symptomatic.
Ultimately, jurors cleared the first surgeon and his practice for liability. However, they did find that the hospital and the two Fabre defendants (the two surgeons who treated him after he was hospitalized) were liable. Although the jury awarded the estate total damages of $7.5 million, that was offset by 65 percent because the lion’s share of liability was held by the Fabre defendants. The family was ultimately awarded $2.6 million.
What is a Fabre Defendant?
Fabre defendants are so-named for the 1993 Florida Supreme Court case of Fabre v. Marin. In that case, the plaintiff was a passenger in a car driven by her husband when she was injured in a crash. She sued the other driver. A jury found her husband (who was not named in the lawsuit) and the other driver were each 50 percent at-fault. However, the court did not reduce the defendant’s liability, and instead ordered him to pay 100 percent of the plaintiff’s damages. The Florida Supreme Court created the “Fabre doctrine” in order to resolve this unfairness, finding that juries can apportion liability to third parties who aren’t being sued, called “Fabre defendants.”
When a court apportions blame to a Fabre defendant, the plaintiff cannot collect those damages. This is why it’s so important to work with an experienced medical malpractice attorney, committed to thorough investigation and litigation that holds accountable every legally responsible party.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Florida Hospital Hit With $2.6 Million Verdict Over Patient’s Fatal Stroke, Feb. 3, 2021, By Melissa Siegel, Law.com
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OBGYNs Have Higher Rates of Florida Medical Malpractice Claims Than Other Doctors, Oct. 22, 2021, Palm Beach Medical Malpractice Lawyer Blog