Articles Posted in Medical Malpractice

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Medical malpractice lawsuits are among the most difficult types of personal injury cases to prove. They have a higher proof burden, short statute of limitations, and require expert witness testimony just to get your foot in the door. A poor medical outcome – no matter how devastating – doesn’t automatically mean the doctor was negligent. Healthcare workers are loath to have a black mark on their record, so they fight back hard against medical malpractice claims – meaning cases take years to litigate, even if the claim is strong. Palm Beach injury attorney

As a Palm Beach injury lawyer can explain, there are four basic elements one has to prove in order to prevail in a Florida medical malpractice case – but one is often more difficult than the others.

Elements of a Florida Medical Malpractice Case

There are four main elements one must prove to win a Florida medical malpractice case:

  1. Duty of Care
  2. Breach of Duty
  3. Causation
  4. Damages

Let’s start with duty of care. This means establishing that the defendant (in this case, the doctor) had a duty to the plaintiff (patient) to provide care that meets the standard recognized by the medical community. They are expected to deliver care that would generally be expected of any reasonably competent practitioner with the same or similar level of skill, resources, and knowledge.

This differs slightly from other types of general negligence cases (such as car accidents) in that the expectation is not that they must act as a “reasonable person” would, but as a “reasonably competent practitioner of the same or similar level of skill, resources, and knowledge.”

Establishing what is “reasonable” requires something different for each. With medical malpractice, we have to hire an expert witness right off the bat to help us make the case – even if negligence seems obvious. Florida medical malpractice laws actually require that we do so.

Next up is causation. We need to show that there was a direct and causal link between the doctor’s breach of duty and the harm suffered by the patient. Whether the harm involved an injury, worsening condition, or death, we need to be able to establish that it was the result of the provider’s negligence.

Even if we can show the doctor was negligent and that the patient was harmed, that’s not enough to win a Florida medical malpractice case. As Palm Beach medical malpractice attorneys, we must be able to establish that the patient’s harm was because of the doctor’s mistake, inaction, error, oversight, etc.

Finally, we must prove damages. This is the amount of losses of the plaintiff due to the doctor’s negligence. It includes not only tangible financial impacts, such as medical bills and lost wages, but also intangible losses such as loss of life enjoyment. Medical malpractice lawyers have strategies that we use to quantify both past, current, and future financial losses, as well as those intangible losses.

The Toughest Element to Prove: Causation

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Doctors who have a poor history of patient care – particularly with prior accusations of medical malpractice – may pose a risk to their patient’s safety. Palm Beach medical malpractice lawyer

In a study published last year in the JAMA Health Forum, researchers conducted a case-control study of nearly 900,000 licensed physicians in the U.S. with at least 1 paid claim for medical malpractice. What they found was that those doctors, regardless of specialty, were almost 4 times more likely to have at least one more paid claim for medical malpractice within 5 years, compared to doctors who had no previous paid claims. The likelihood of future claims rose with the number of previous claims – regardless of whether those paid claims were publicly disclosed or not.

Florida Medical Malpractice Claims Aren’t Random Events

Researchers noted (and our Palm Beach medical malpractice lawyers would concur) that this demonstrates that paid medical malpractice claims aren’t just random events. This is a common refrain we hear from doctor liability insurers and tort reform advocates. It’s simply not true.

The American Medical Association reports roughly 1 in 3 doctors “has been sued at some point in their careers.” But that analysis did not include paid claims. Researchers also admittedly used the terms “claims” and “lawsuits” interchangeably in a self-reported survey given to 14,000 doctors. Problem is, “claims” are unequivocally not the same as “lawsuits.”

As a Palm Beach medical malpractice lawyer can explain, Florida (and most other states) have significant pre-suit hurdles that must be cleared to even make it to the early stages of a Florida medical malpractice lawsuit. So the assertion that “1 in 3 doctors is sued” is a clear misrepresentation.

Actually, medical malpractice is fairly underreported. One of the many studies to support that claim was published in 2015 in the International Journal of Preventative Medicine. This was a cross-sectional study conducted over a few months at a handful of hospitals. Researchers found more than 50% of subjects (doctors, nurses, midwives, residents, interns, lab staff, etc.), had committed medical errors, but did not report them.

Another analysis published in the Scientific World Journal reviewed some 30 studies on medical practice, noting medical errors are the third-leading cause of death in the U.S. More than 200,000 patients in the U.S. die every year due to medical errors. Barriers to reporting medical mistakes included:

  • Fear of consequence
  • Lack of feedback
  • Poor work climate/culture

And while there are insurance lobbyists who would argue that its coverage of medical malpractice liability coverage that drives up health care costs, research shows that medical errors – even those unreported – actually cost the healthcare system some $17 billion annually. (And that was in 2008 and only included “measurable medical errors,” such as pressure ulcers, postoperative infections, and missed diagnoses. The cost today is likely a whole lot higher.)

Evidence of Prior Claims May Not Be Admissible in Florida Medical Malpractice Cases

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The parents of a young woman who died of septic shock recently won a $30 million judgment in a Florida medical malpractice lawsuit against the doctors they alleged were negligent in treating an ulcer. West Palm Beach Florida medical malpractice lawsuit

While such sizable damage awards are the exception in the Florida medical malpractice lawsuit landscape, part of what this case came down to was the fact that this young woman’s condition went untreated for so long – despite being known.

We understand as West Palm Beach medical malpractice attorneys that nothing is going to bring back a loved one who’s been lost as a result of medical negligence. But we are committed to fighting tirelessly for accountability on behalf of our clients – even if it takes nearly a decade, as this case did.

According to court records and media reports, this young woman was admitted to a hospital in Tampa with severe pain, stemming from an ulcer in her small intestine. She was discharged to a long-term care facility shortly thereafter, with orders that she was to undergo an endoscopy for that ulcer within a couple weeks. But the doctors at the long-term acute care facility never followed through with those orders. The patient continued to be treated for pain, constipation, nausea, and vomiting — symptoms that were at least partially caused by a drug she was prescribed, according to plaintiffs. The source of that pain, however, went untreated. Eventually, after two months, the ulcer perforated the wall of the small intestine, resulting in sepsis, a blood infection. At one point, she was sent to a nearby hospital for a brain scan, but that imaging result turned up no results – because the issue was the intestine perforation and sepsis. After days enduring what her parents described as agonizing pain, she died of septic shock. She was just 23-years-old.

It’s worth noting that had this woman been just 2 years older, Florida’s so-called “free kill” law would have barred her parents from any legal action at all. As it stands, if a patient is over the age of 25, unmarried, and without minor children under the age of 25, there is no survivor qualified to sue if they die as a result of medical malpractice. There have been efforts to repeal this law as recently as this year, but so far, they’ve been unsuccessful.

No parent should have to bury a child. A sudden death is made all the more painful when you know it didn’t have to happen this way.

As a West Palm Beach medical malpractice attorney can explain, the question in these cases is not simply whether a patient suffered a poor outcome. Instead, we must examine whether the health care professional and their team fell short of the “standard of care.” Continue reading

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One might presume (or at least hope) that negligent doctors with a track record of paying large sums to settle multiple Florida medical malpractice lawsuits would have a tough time continuing to work in the health care industry. That person would be wrong.West Palm Beach medical malpractice lawyer

Not only is it rare for a doctor to lose their state-issued license to practice medicine in Florida, a new report by ProPublica revealed that several physicians repeatedly found negligent in providing patient care now earn healthy sums working for health insurers — approving or denying coverage for patient insureds.

The first example involved a surgeon who practiced for years in Brevard County, Florida — during which time he settled five Florida medical malpractice lawsuits for a collective $3 million. Among the patient allegations against him:

  • He negligently cut the aorta of a patient who underwent surgery for her gallbladder. She died just before her 40th birthday, leaving behind a husband and two teen daughters.
  • He negligently stapled and stitched a patient’s rectum to her vagina.

The surgeon denied these and three other claims against him, but ended up paying sizable settlements to each of those claimants for medical malpractice.

Those harmed might take comfort in the fact that he hasn’t worked as a practicing surgeon for a dozen years. However, he was hired to work as a medical director for a health insurance company, where he is a critical gatekeeper deciding which patient procedures will be covered by the insurer and which won’t. Not only that, he oversees more than a dozen other medical directors.

Although medical directors like him never see patients in person, they can overrule the doctors who do when they recommend medicines, tests, treatments, or procedures.

ProPublica reported that on average, a single medical director reviews 10,000+ patient claims for coverage a year. In a few cases, doctors astonishingly ruled on more than 10,000 claims in a single month. That breaks down to a single person ruling on more than 333 cases a day – and that assumes the doctor actually worked 30 days straight, which is unlikely.

Rubber-Stamping Health Insurance Coverage Denial

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Filing a Florida lawsuit for robotic surgery injuries may be warranted if adverse patient outcomes are the result of machine malfunction, surgeon error or a preventable mistake during the procedure. Such claims may be filed against the surgeon, but also potentially against the manufacturer of the robot. Lawsuits against surgical robot manufacturers would not be for medical malpractice, but rather product liability. West Palm Beach product liability lawyer

The use of robotic systems for surgeries has grown rapidly in recent decades. Specialized technology has enabled these systems to deliver precision care, even in difficult-to-reach areas, such as the heart, digestive system, bladder, prostate and more. They tend to result in less pain during recovery, shorter hospital stays, lower risk of infection and smaller scars.

However, they’re also associated with a number of serious risks, such as nerve damage and compression. What’s more, their safety may be overstated, and complications underreported. In one report published in the Journal for Healthcare Quality, researchers report that of the 1 million+ robotic surgeries performed in the last 20+ years, there were 245 complications and 71 deaths reported to the U.S. Food & Drug Administration. That figure was suspiciously low. Researchers then uncovered several incidents that were reported by the news media that were never reported to the FDA, indicating intentional underreporting. It’s likely there are additional incidents that were never reported to the FDA or the media.

Johns Hopkins Medicine reported 57 percent of surgeons anonymously reported irrecoverable operative malfunction while using a robotic surgical system, requiring them to convert the procedure to laparoscopic or open surgery. Continue reading

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A new report by the U.S. Centers for Disease Control and Prevention reveals that 20% of women report experiencing medical mistreatment from their healthcare providers during maternity care.West Palm Beach medical malpractice lawyer pregnancy

As our West Palm Beach medical malpractice lawyers can explain, it is the job of fetal and obstetrical medical professionals to do their best to ensure the safest and healthiest pregnancy outcomes for their patients. Of course, with any pregnancy, labor, and childbirth, there is a risk of adverse outcomes that can include serious illness, injury and even death. But often, when healthcare professionals are meeting the applicable standard of care, that risk is significantly minimized. If a healthcare worker’s substandard care contributes to the death of the mother or serious injury to a fetus that survives birth, it can be grounds for a personal injury or wrongful death medical malpractice claim.

There is currently no provision in the Florida Wrongful Death Act that allows surviving parents to sue for the death of a stillborn fetus. It may be possible for the mother, and in some cases the father, to sue for mental anguish relating to the loss. These claims are usually as part of a personal injury claim filed by the mother. However, existing law doesn’t allow for such a claim to be made for “wrongful death.”

A bill pending in the Florida legislature would amend the law to add “parents of an unborn child” to the list of people who can file wrongful death lawsuits. It’s not clear whether it will pass, however, as it’s drawn sharp criticism from abortion rights advocates over the implications the law could have for doctors who perform abortions, medically necessary or otherwise. (It does contain a caveat that such a claim couldn’t be filed against the mother.)

Civil lawsuits for maternal deaths resulting from medical malpractice are more straightforward in the right to file a claim, but still potentially complicated. It’s not enough to show that an adverse outcome occurred while a patient was under the care of the healthcare provider in question. One must show strong evidence of medical negligence which directly resulted in an adverse outcome for the pregnant person.

Some examples of situations that may give rise to a birth or pregnancy-related medical malpractice claim include: Continue reading

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Privatization of the medical industry – from nursing homes to hospitals to home health care companies to primary care doctors – is increasingly becoming the norm. Recently, a new study showed  that adverse medical outcomes are more likely in privatized healthcare facilities. This is unsurprising to any Palm Beach medical malpractice lawyer.Palm Beach medical malpractice lawyer

Published in the peer-reviewed Journal of the American Medical Association, the analysis revealed that in three years after a private equity firm purchased a hospital, the number of negative medical outcomes among patients soared. Surgical infections, bed sores, falls – these sorts of adverse medical events collectively rose by 25 percent. Central line infections in particular rose by 38 percent. Falls by patients staying in the hospital were up 27 percent. These are the sort of incidents that should never happen. And most telling was that in similar hospitals that were not privately-owned, the rates were not rising.

There was a 5 percent drop in the number of patient deaths. However, researchers noted that could be explained by a tendency toward admitting healthier patients who otherwise might have been sent home. Such practices not only skew death rates, they also drive profits.

Those who have studied hospital safety extensively point to this as the first data that strongly points to quality problems at hospitals that are taken over by private equity companies. Continue reading

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In Florida, medical malpractice law is complex. Even defining the term requires some explanation. When it comes to the negligence of healthcare providers, the Sunshine State has many unique laws and procedures. Not every poor medical outcome or injury at a hospital qualifies as medical malpractice in Florida. Sometimes there are barriers preventing viable claims even when the evidence strongly supports allegations of medical negligence. This is why it’s so important to work with an experienced attorney. medical malpractice lawyer

To ascertain whether an injury qualifies, our Palm Beach medical malpractice lawyers typically start by carefully considering the following:

  • Whether the healthcare professional had an established caregiver-patient relationship with the plaintiff.
  • Whether the healthcare professional’s actions – or inaction – caused harm or injury to the plaintiff.
  • How likely it is that there is some other cause of the plaintiff’s harm or injury.
  • Whether those actions fell below the applicable standard of care for someone in their position (considering education, experience, facility, region, etc.).
  • How long ago the healthcare’s alleged negligence took place, as well as when the harm/injury was discovered.
  • If the patient died as a result of the alleged medical malpractice, did they have a surviving spouse OR children under the age of 25 at the time of the incident?

Remember: The burden of proof lies with the plaintiff, or the one who is filing the case. And there is a rigorous process with medical malpractice claims just to get past the preliminary stages of a lawsuit. Working with an experienced Palm Beach medical malpractice lawyer is critical.

What Exactly is Medical Malpractice?

Florida medical malpractice laws are outlined in 766.101 to 766.203. Medical malpractice is generally understood as subpar treatment provided by a doctor, surgeon, nurse, or other healthcare provider that results in significant harm or injury to the patient. Continue reading

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Jurors in Florida recently found a renowned children’s hospital liable for medical malpractice, false imprisonment and emotional distress, awarding $220 million to the now-17-year-old plaintiff. Palm Beach medical malpractice lawyer

As our Palm Beach medical malpractice lawyers can explain, this case is unique for several reasons. First, it’s rare for a Florida medical malpractice case to involve false imprisonment, which is an intentional tort. Secondly, the case was featured in a documentary on Netflix called, “Take Care of Maya,” prior to the verdict.

The plaintiff was 10 and suffering from a chronic pain condition when her mother brought her into the hospital and told doctors she needed ketamine treatments, which are considered risky, especially for children. The girl had reportedly been given such treatments initially in Mexico, and the mother said it significantly improved her condition.

But hospital staff didn’t buy it. They didn’t think the girl was truly in as much pain as was alleged. In fact, they suspected this to be a case of Munchausen by Proxy syndrome. Continue reading

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As a West Palm Beach medical malpractice lawyer, I recognize that it’s so many of these cases are predicated on what doctors did NOT do, as opposed to what they actually did.West Palm Beach medical malpractice lawyer

In a recent Florida medical malpractice case out of the First Judicial Circuit, a jury awarded $1.7 million to the widow of a man who grew increasingly ill after doctors reportedly failed to diagnose him with a condition they should have caught much earlier.

He’d gone to the emergency room in December 2017 with pain and internal bleeding. And although he was released, he never truly recovered after that stay. He died a few years later of congestive heart failure, but it was his widow’s position (with which the jury later agreed) that if his doctors provided him with quality care during that initial emergency room visit, his other conditions would not have worsened and he’d likely have lived longer and with a better quality of life.

In medical malpractice cases, the primary question is not necessarily whether there was a bad patient outcome, heartbreaking as that can be. The  issue is whether we can show:

  • The healthcare provider failed in their duty to provide care aligning with the standards expected of someone with their education, experience, and resources. (This is proven with expert witness testimony.)
  • This failure to provide care aligned with professional standards directly caused or exacerbated the plaintiff’s injuries.
  • The injuries sustained resulted in financial harm.

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