Articles Posted in Medical Malpractice

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

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

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

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

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.

Continue reading

Two years ago, a 53-year-old husband and father walked into a regional hospital with a common inflammatory condition – and was dead within a week. Now,  jurors have awarded his widow $20 million from the doctor who prescribed powerful pain medications for his pancreatitis without the benefit of constant machine-monitoring of his oxygen levels, despite his diagnosis of sleep apnea.Palm Beach medical malpractice attorney

As our Palm Beach medical malpractice lawyers can explain, a big part of this case was about what did NOT happen, as opposed to an active error. Specifically, according to reports on the trial, the doctor failed to even ask whether the patient had a history of obstructive sleep apnea. As several expert medical witnesses for the plaintiff testified, any physician who is prescribing a powerful narcotic should inquire specifically about this condition because it causes the muscles of the throat and palate to close, effectively stopping airflow. This can be perilous even under normal circumstances. But pain medications like Dilaudid, an opioid that is seven (7) times more powerful than morphine, are respiratory depressors. Combine the two, and the risk of a serious or fatal complication skyrockets.

For this reason, the expert medical witnesses testified, the patient should have been placed on a telemetry monitor or pulse oximeter that would have kept careful track of his vital signs while he slept under the influence of the Dilaudid.  Failure to do so, the experts said, fell far short of the standard of care.

The defendant had prescribed the patient increasing doses of the pain medication for more than 18 hours before another doctor discovered him the following afternoon, unresponsive in his bed, heart no longer beating. Emergency resuscitation efforts revived him, but could not reverse the damage done by lack of oxygen to the brain. He was pulled from life support six days later.

Another aspect of this Palm Beach medical malpractice case that our trial lawyers noted was that part of the defense strategy ended up backfiring and being a big win for the plaintiff. For context, this all happened within the first few months of the COVID-19 pandemic. You’ll recall that for a time, doctors, nurses, and pretty much all healthcare workers and facilities were being run ragged. Attorneys for the doctor cited this burnout and lack of personnel and resources as part of the reason why constant monitoring of the patient’s vitals wasn’t feasible. But as the plaintiff’s attorneys noted, this would be all the more reason for the doctor to order machine monitoring. Machines don’t experience pandemic-related burnout.

In essence, the plaintiff’s attorneys took what the defense legal team probably thought was one of its strongest arguments and flipped it on its head. Continue reading

Every instance of Florida sexual assault of a patient by a healthcare provider is an egregious breach of trust and professional ethics. For doctors, it’s a violation of the sacred Hippocratic Oath to “first, do no harm.” But can it be considered “medical malpractice?”Florida civil sexual assault attorney Palm Beach

Medical malpractice is a type of civil claim. But not all civil claims against healthcare providers or institutions are necessarily for malpractice.

Our West Palm Beach civil trial lawyers are experienced in the successful handling of both civil sexual assault cases and medical malpractice claims in South Florida. While each case is fact-specific, we generally frame patient sexual assaults as torts of general negligence rather than medical malpractice.

For one thing, it can be argued that sexual assault does not “arise out of” the administration of healthcare, for which a breach of duty is governed by applicable standards of care. It’s an intentional act by the accused perpetrator, and one that may have been reasonably foreseeable/preventable had the facility and/or employer exercised a reasonable degree of basic oversight/security.

Beyond this, Florida medical malpractice claims are held to much more rigorous standards for proof burdens, allowable evidence, and timelines. There are a lot more legal and procedural hurdles to clear just to get your foot in the door with a medical malpractice claim compared to other types of civil claims. Prevailing in medical malpractice cases also requires more time, resources, and legal expertise.

Defendants in medical malpractice cases also may not be required to pay out as much as those sued for ordinary negligence. While Florida has no caps on medical malpractice injury economic damages (compensation for things like medical bills and loss of income related to medical negligence), it does cap non-economic damages for things like anxiety, mental anguish, trauma, pain and suffering, and loss of companionship. The cap is set at $500,000 for practitioner defendants, such as doctors and nurses, and $750,000 for non-practitioner defendants, such as hospitals and healthcare systems (assuming the victim wasn’t left dead or in a vegetative state, in which case, the damage award goes up slightly). Non-economic damages are often a big part of damages sought in Florida civil sexual assault cases.

The end result of requiring these of sexual assault to be filed as medical malpractice is that victims have have a tougher time filing and establishing liability. They’ll pay more to do so, wait longer for justice, and likely be compensated less.

Recently, reporters with ProPublica and The Salt Lake Tribune reported on this phenomenon in Utah. The expose detailed the nearly-five-decade career of a doctor who faced civil lawsuits by 94 former patients who accused him of sexual assault. Several of those claims have been dismissed because a lower court judge has held they should be filed as medical malpractice claims – and the filings fall short of the more stringent standards for such cases. The Utah Supreme Court has granted review of appeals by several of those plaintiffs. But if the lower court’s ruling stands, it will also mean foreclosing on many future claims, because the statute of limitations for medical malpractice claims in those states is shorter than for ordinary negligence. It will also mean that even successful cases would be subject to the medical malpractice damage caps.

Here in Florida, courts have ruled both ways.

Florida Court Rulings on Health Care Sexual Assaults as Medical Malpractice Claims

Some examples: Continue reading

As West Palm Beach medical malpractice lawyers, we’ve been carefully watching the shifting landscape of OBGYN healthcare since the U.S. Supreme Court’s overturning of Roe v. Wade last year.Florida medical malpractice abortion bans

Since then, many states – including Florida – have moved to substantially restricted abortion access. Along with that, there have been a growing number of reports of doctors and hospitals refusing to end pregnancies, even when women are facing life-threatening complications. While most state with abortion restrictions have carved out exceptions when the life of the mother is in jeopardy, healthcare providers say these exceptions are so narrowly written that they run the risk of criminal prosecution or loss of their medical license if they act before the woman’s situation is truly dire.

Much of this comes down to the fact that clearly identifying when a condition is “life-threatening” isn’t so simple. Every scenario is different, and there may not be universal consensus. Further, even when doctors know the woman’s situation WILL inevitably become life-threatening if they don’t act, they say the law paralyzes them from doing anything until her life is actually in danger.

Take for example a case that ABC News reported on about a woman in Texas who had to wait until she developed sepsis – a life-threatening infection of the blood – before doctors were willing to provide her with a lifesaving abortion. They knew she would develop sepsis, but reportedly couldn’t do anything to help her until she did. She was 4 months pregnant when her water broke, causing her to lose her amniotic fluid, which is essential to keeping a fetus alive. Texas law prohibits abortion after fetal cardiac activity is detected. So even though she arrived at the hospital, shaking, feverish, no amniotic fluid, and no chance the fetus would survive, doctors said they could not provide her immediate emergency abortion care – because the fetus’s heartbeat was still detected. She had to wait nearly a full day to develop full-blown sepsis before she could acquire abortion care. Doctors told her, “You will get very sick before we can help you.” Had she been a patient in a state with less restrictive abortion laws, she could have received abortion care immediately and avoided sepsis – and all the major health risks that go with that. She reportedly continues to suffer health complications because of that infection.

In Florida, abortions after 6 weeks were recently banned by a law signed by Gov. Ron DeSantis. However, that ban is on pause until the Florida Supreme Court can weigh in. For now, Florida is a top destination for Southerners seeking abortions up to 15 weeks. There’s no assured timeline – or outcome – in the state high court decision, but it’s widely expected that the conservative-leaning court will allow the abortion restrictions – with no exceptions for rape or incest – to remain in place.

Will Doctors Refusing Abortions Be Shielded From Florida Medical Malpractice Claims?

Continue reading

A recent Florida Supreme Court ruling in a medical malpractice lawsuit struck a major blow for victims of negligent healthcare providers. The impact is likely to be that Florida medical malpractice lawsuits are going to:

  • Be more expensive.
  • Drag on for longer.
  • Face additional hurdles to success.
  • Shake up legal strategies of both plaintiff and defendant attorneys. Palm Beach medical malpractice lawyer

Central to the rule – which was changed outside the Court’s normal process for rulemaking – allows hospitals and healthcare providers being sued for medical malpractice to immediately appeal an order denying a motion to dismiss on grounds that plaintiff’s medical expert witness isn’t adequately qualified to testify against the defendant.

The surprising ruling was something of a quick two-step. First, the Court ruled that the defendant hospital wasn’t allowed to get a rapid re-hearing on its motion to dismiss the claim altogether. But then, the Court turned around and immediately issued another opinion that switched up the game on the issue, amending the Florida Rule of Appellate Procedure to allow for interlocutory (mid-litigation) appeals over the issue of qualified expert witnesses.

In a short dissent, one Supreme Court Justice insisted a change this substantial to Florida medical malpractice case procedure shouldn’t be adopted before it’s weighed by the appropriate committee, which would be responsible for careful review followed by precise recommendations. That’s the way it typically works. But the Court just abruptly side-stepped that procedure. Although it is accepting public comment and requests for oral argument until mid-September, the rule change goes into effect immediately.

Proponents of tort reform are, of course, over-the-moon about this. They’re saying it will help ensure that only truly qualified expert witnesses will have the opportunity to testify against other doctors in court.

But as our Palm Beach medical malpractice lawyers can explain, that take ignores the unequivocal fact that the expert witness vetting process in Florida medical malpractice cases is already quite stringent. Plaintiffs can’t even file the lawsuit until they submit an affidavit of an expert medical witness with the same or substantially similar education, training, and practice as the defendant. The judge has to sign off on that witness before the case even gets started. Continue reading

As Palm Beach medical malpractice lawyers, we know that some of the most common claims stem from diagnostic errors. These include situations like failure to identify a serious disease or diagnosing you with one condition when really you have something else. In these situations, a doctor’s deviation from the standard of care can cause a patient to lose critical time in treating the actual condition. Sometimes, these mistakes cost patients their lives. medical malpractice diagnosis error

But what if you’re diagnosed with something you never actually had? On one hand, you might be relieved to find out you’re disease-free. But on the other hand, you may have undergone numerous painful treatments – not to mention the emotional and mental anguish of such a diagnosis – only to find out it was all wholly unnecessary.

The trauma in that situation is valid. However, it might not be legally actionable. That’s because of the lack of permanent harm.

The reality is that medical malpractice lawsuits are very expensive. They require expensive expert witnesses, a lot of attorney time and energy, etc. And attorneys accept these cases on a contingency basis, meaning they aren’t paid unless and until the plaintiff wins. Even then, most are accepting a percentage of the overall damage award. If there’s no permanent harm suffered, that means the potential damage award dwindles substantially – and fewer attorneys are going to be willing to take the risk.

But we do recognize this is incredibly frustrating for patients who have had to endure these ordeals. The Tampa Bay Times recently delved into this issue, highlighting several cases of diagnostic errors that that led to patients believing they had a serious illness when they actually didn’t.

In one case, a woman was told two days before Christmas that laboratory tests confirmed a type of cancer in her lymphatic system that usually spreads fast to other organs. Her husband was devastated. They canceled holiday celebrations. They cried together a lot. They talked about the wife’s final wishes, and how the husband would manage – financially and otherwise – without her. They canceled an expensive, non-refundable, two-month vacation they had planned so they could focus on her treatment. She upgraded her medical insurance policy to one that was double what she’d previously had. She paid more than $4,000 in tests and consultations. Out of pocket, the couple estimates they were out about $20,000.

But then two months later, a new test result shocked them both: She was completely cancer-free. She’d been misdiagnosed, and as it turned out, she didn’t need any treatment at all.

When she contacted several injury lawyers to see about filing a medical malpractice claim, each turned her down. All cited the fact that she’s currently healthy and whatever damages she did collect probably wouldn’t cover the amount it would take to bring the case to court.

As medical malpractice attorneys, we do understand the deep anger and frustration and desire to hold medical providers accountable when they make major errors. But the reality of such a low damage award means the statutorily-required expert witness would get paid, the lawyer would get paid, but the client probably wouldn’t. Most medical malpractice lawyers would find taking such a case to be unethical. But neither can we agree to take less than our regular fee for our work – or ask the expert witness to do so. Continue reading

Contact Information