Articles Posted in Medical Malpractice

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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

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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

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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

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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

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The injuries one sustains as a result of South Florida medical malpractice may last forever – but the time window in which you must initiate legal action does not. West Palm Beach medical malpractice lawyer

As our Palm Beach medical malpractice attorneys can explain, there is generally a two-year statute of limitations for Florida medical malpractice claims. Generally, if you do not file your lawsuit within this window, your claim may be time-barred. These limits are set forth in F.S. 95.11(4)(b).

Although it’s true that often these cases are resolved through settlement negotiation, they are more complex than other types of personal injury claims. They require expert witnesses, extensive evidence, and a great deal of preparation. It’s often necessary to file a lawsuit just to preserve the claim so that we can continue negotiations. Settlements can often be beneficial to claimants because they can lead to faster resolutions and save the time/expense/emotional toll of a trial. Still, it’s important when hiring a Florida medical malpractice lawyer that you choose one with extensive experience, a track record of success in similar cases, and who is unafraid to take a case all the way to trial if necessary.

Note that the statute of limitations varies from state-to-state, so if you recently moved here from elsewhere, the time limits and requirements were probably different.

Are There Any Exceptions to the Two-Year Limit?

There are exceptions to the two-year statute of limitations for Florida medical malpractice claims, but they are limited in scope.

The clock starts ticking usually on the date of the incident. However, it might not start until the date you discovered or should have discovered the incident through the exercise of due diligence. So perhaps you were harmed by medical malpractice, but you didn’t know – and couldn’t have known – that was the cause right away. In those situations, the court will ask at what point you reasonably should have become aware there was an issue.

Despite this, there is a hard stop of four years from the date the incident occurred. This is referred to as the statute of repose. So let’s say you don’t discover your injuries or that the source of your injuries was medical malpractice until three years after it happened. In that situation, you would have just one year in which to file your claim.

To file any Florida medical malpractice case beyond four years, the fact pattern needs to reflect one of the following situations: Continue reading

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Physical therapy is a form of medical treatment that helps injured or ill people of all ages and ability to improve movement and manage pain. These treatments are beneficial in preventing future injuries, rehabilitating someone who has already been injured, or treating patients with chronic conditions or illnesses. But what if the treatment itself results in injury? As our West Palm Beach medical malpractice lawyers can explain, most physical therapy negligence cases will be filed as medical malpractice lawsuits. That’s because most claims arise out of a deviation from the standard of care expected of any physical therapist. However, there are some situations wherein a plaintiff will advocate for their claim to be treated as a general negligence case. Florida physical therapy negligence

Why does it matter? Because medical malpractice cases are a lot tougher to win. They take longer (but have a shorter statute of limitations than ordinary negligence cases), require more expert witnesses, have a higher proof burden, and must clear more hurdles before they even get a foot in the door. If you try to allege a physical therapy injury was general negligence, be prepared for push back.

What’s more, if you file the case as one of general negligence and the court later rules it was, in fact, medical malpractice, your case could be tossed and you have to start all over. If you’re past the statute of limitations, you may lose your opportunity to seek damages altogether.

Your personal injury lawyer can help you determine if your case is one of general negligence or medical malpractice, though sometimes the answer isn’t always clear-cut. Example: Corbo et al., v. Garcia, decided in 2007 by Florida’s 2nd District Court of Appeals. Continue reading

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Every year, nearly 46,000 Americans die and another 1.2 million attempt to take their own lives, according to the American Foundation for Suicide Prevention. It’s not uncommon for loved ones to agonize for years about “what if” and what might be done differently – possibly blaming themselves or others for not seeing the signs or being more proactive in protecting the person from themselves. And most of the time, it’s a fruitless mental spiral because hindsight is 20/20 and of course you’d have intervened if you knew what was coming and had the power to stop it. Florida suicide lawsuit attorney Palm Beach

But what if an individual or organization was responsible for overseeing your loved one’s physical well-being and mental health and they managed to commit suicide anyway? What if red flags were missed? What if the people entrusted to care for your loved one – knowing their risk of self-harm – didn’t make absolutely sure they were safe?

In these cases, you may have grounds to sue for suicide. These third-party lawsuits assert that the doctor, hospital, or other organization owed your loved one a duty of care, breached that duty, and your loved one died as a result. As noted in a 2019 article published in FOCUS, The Journal of Lifelong Learning in Psychiatry, suicide is a top cause of liability against psychiatrists treating adult patients.

But are such cases medical malpractice or general negligence? The answer matters because, as our Palm Beach medical malpractice lawyers can explain, the proof burden and pre-suit requirements for medical negligence cases are more time-consuming, expensive, and tedious than what’s required to initiate a general negligence action. It has a shorter statute of limitations than injury cases (2 years instead of 4), though it’s the same for wrongful death cases. Also, the plaintiff is required to provide expert witness testimony at the outset of the case just to be allowed to proceed. Naturally, anyone named as a third-party defendant in a suicide liability lawsuit is going to argue the case is medical malpractice because that will make it tougher and more costly for the plaintiff.

But just because the defense says it’s medical malpractice doesn’t mean it is. Sometimes, it’s up to the courts to decide. Continue reading

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One of the main questions our South Florida medical malpractice lawyers get from potential claimants at the outset is: “What are my odds of winning?” medical malpractice lawyer

It’s a prudent question to ask before getting too far ahead of yourself. The answer isn’t always straightforward – even when it’s clear a medical mistake was made and the injuries are serious.

A medical malpractice lawyer cannot guarantee you a winning outcome. That said, an attorney with extensive experience and skill can often give you a good idea of how a case is likely to go – and what legal hurdles must be overcome.

A 20-year longitudinal study of medical malpractice claims published in the journal Clinical Orthopaedics and Related Research revealed that defendant doctors prevail in 50 percent of cases where there’s strong evidence of medical negligence. This undercuts the oft-repeated (but clearly erroneous) tort reform advocate assertion that medical malpractice cases are easy wins. Further proof: That same analysis showed settlement sums directly correlated with the strength of the evidence. Basically: If your evidence is thin, you won’t get far.

This is not to say you can’t win. What it does mean is that even with strong evidence, the proof burden is high and there are likely to be significant challenges. Hiring a legal advocate with a proven track record of success is often your best shot.

Beyond that, so much depends on the specifics. Factors that can impact Florida medical malpractice case outcomes: Continue reading

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Telehealth has been around since the early 2000s, though it didn’t gain widespread acceptance by providers or patients until the COVID-19 pandemic. Now, according to a survey by the American Medical Association, 85 percent of physicians said they are currently using telehealth, and nearly 70 percent report their organization is interested in continuing to offer it permanently. It may prove especially valuable for those managing chronic diseases, care coordination, mental health, and certain specialties. Florida medical malpractice telehealth

The benefits of telehealth are extensive (greater accessibility for those in rural areas or with mobility limitations, convenience, cost savings, etc.). But it also comes with a potentially higher rate of misdiagnosis – one of the primary catalysts for Florida medical malpractice claims.

Providers can be liable for medical malpractice if they breach the standard of care during a telehealth visit and the patient suffers harm as a result. This could be due to a negligent omission, miscommunication, misdiagnosis, software malfunctions, etc. Misdiagnosis in particular is a top concern because of the inherent challenges that come with examining a patient by way of a digital health platform versus being face-to-face in an exam room. A pre-pandemic analysis by a medical professional liability firm calculated that nearly 70 percent of telehealth medical malpractice claims were related to diagnostic issues – either missed diagnosis or misdiagnosis.

What is Telehealth?

For those who may not be familiar, telehealth is when a doctor or other health care professional provides consultations, exams, diagnoses, and treatment via phone call or video chat. It’s usually done on a secure video app and/or through secure messaging systems. Sometimes, patients may be given monitoring devices that collect certain data that aid in providing a remote examination.

Some of the ways telehealth is being increasingly used: Continue reading

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A CT scan showed you had cancer, but the doctor failed to diagnose it. An OBGYN error during labor and delivery deprived a fetus of adequate oxygen during birth, leading to permanent brain damage and disabilities. Hospital staffers gave your mother the wrong dose of a powerful medication, resulting in her death. These are just a few examples of scenarios that can spur South Florida medical malpractice lawsuits.South Florida medical malpractice lawyer

Actually winning, though, is another matter.

In a recent analysis by NiceRx, Florida ranked No. 3 in the country over the last decade for the most reported incidents of medical malpractice. Yet it ranked 43 out of 50 for medical malpractice payout totals. The actual number of Florida medical malpractice incidents is almost certainly much higher than what’s reflected on court dockets – a direct result of Florida lawmakers’ efforts to make it inherently tougher to pursue these cases compared to other kinds of personal injury and wrongful death claims. The proof burden is higher, the filing deadlines are shorter, and there are tighter restrictions on who has standing to file and how much money can be awarded. It’s an awful shock for some families when they learn that neither a tragic outcome nor even proof of a medical mistake necessarily guarantees a successful medical malpractice claim. In fact, those truths may not even get your foot in the door of the courtroom.

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