Articles Posted in Medical Malpractice

As experienced Palm Beach medical malpractice lawyers, we’re closely familiar with the 2004 Florida law passed overwhelmingly by voters with the intention of preventing dangerous doctors from practicing medicine. It’s a “three strikes” rule for medical malpractice that seems fairly straightforward: A doctor with three “strikes” of medical malpractice will lose their license to practice. Unfortunately, we know all-too-well how ineffective it is, thanks to follow-up efforts by the state legislature, which made it nearly impossible for the state board to actually levy a strike. Palm Beach medical malpractice lawyer

The “Three Strikes Rule” was passed as an amendment to Chapters 458 and 459 of Florida Statutes. The law holds that if a physician has three or more incidents of medical malpractice (as established by a standard of clear and convincing evidence), they will be forbidden from the continued practice of medicine in Florida. A “strike” can be derived from a finding of medical malpractice by one of the following:

  • A final order by an administrative agency following a hearing.
  • A final order by a judge/jury in a civil case.
  • A binding arbitration decision.

It should be noted that medical malpractice isn’t as easy to prove as the typical negligence case. It’s not enough to show the absence of ordinary care. Rather, one must prove – via expert witness testimony from a similarly-situated professional – that the physician failed to abide the applicable standard of care, which depends on that doctor’s education, skill, specialty, and resources. But even with this higher standard and even with the three strikes law, doctors with checkered professional histories continue to practice.

Numerous journalistic deep-dives and scholarly studies in recent years – from NBC-5 in West Palm Beach to The Palm Beach Post – have highlighted this legal loophole. Yet as our medical malpractice lawyers can attest, the problem persists, with Florida doctors who’ve paid out 3+ medical malpractice claims continuing to practice, often with patients none-the-wiser. News outlets have reported there are hundreds of still-practicing doctors who have collectively paid out hundreds of millions of dollars in Florida medical malpractice lawsuits stemming from the deaths of more than 1,000 patients over 10 years. Continue reading

Punitive damage awards – which can potentially triple the monetary damages to which you are entitled in an injury lawsuit – are notoriously tough to obtain in Florida medical malpractice cases. Even getting judicial approval to request them requires proof of gross negligence and/or intentional misconduct – rare in any medical negligence case. The West Palm Beach medical malpractice attorney you hire should be able to tell you whether it’s at all a possibility after a careful assessment of the facts of your case.West Palm Beach medical malpractice attorney

There are two basic types of damages you can seek in a Florida injury case: Compensatory and punitive.

Compensatory damages are paid to compensate someone for specific losses, injuries or detriments. There are actual (aka “special”) compensatory damages (medical bills, lost wages, transportation, rehabilitation, property replacement, etc.) as well as general compensatory damages (pain and suffering, emotional distress, loss of consortium, loss of life enjoyment, etc.).

Punitive damages, meanwhile, are intended to punish the defendant for egregious negligence or intentional wrongdoing and/or to serve as a deterrent. It is paid to you, but the driving factor is the outrageousness of the defendant’s wrongful conduct. Punitive damages are capped in Florida to be either three times the amount of the compensatory damages OR $500,000, whichever is greater.

Medical malpractice claims in Florida are tougher than the average tort case as it is because it’s not enough to show the health care provider simply failed to use reasonable care (the standard for typical negligence claims). What must be established – by expert witness testimony of a similarly-situated medical professional – is that the health care provider failed to follow the applicable standard of care for their specialty, region, and circumstances. Doing so would entitle the claimant to collect compensatory damages for their injuries.

But punitive damages would only be allowed, per F.S. 768.72, if there was proof the health care provider in question engaged in intentional misconduct or gross negligence. Continue reading

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.Palm Beach medical malpractice lawyer

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. Continue reading

Since 1988, parents of children who suffered a specific type of Florida birth injury – profound brain damage caused by oxygen deprivation or spinal impairment – could file no-fault claims with the Birth-Related Neurological Injury Compensation Association, or NICA. Such conditions occur at birth, impact the child for life, and are frequently the result of medical malpractice.West Palm Beach birth injury lawyer

Obstetricians had lobbied the state for a program like this decades ago arguing high insurance premiums would push them out of the state. The program might have seemed a win-win – had parents not been forced to fight for coverage of every expense. While parents were prevented from suing doctors, hospitals, and other health care providers for injuries caused by their negligence during labor and delivery, they were promised adequate coverage for expenses that were both necessary medically and reasonable. That’s not what they received, many now say.

Earlier this year, The Miami Herald teamed up with ProPublica to analyze the issue, finding that NICA, despite amassing billions in assets from doctors’ annual fees, often left families begging for assistance. As our West Palm Beach medical malpractice attorneys have learned, those findings have since been affirmed by at least two state investigations (the auditor general and Office of Insurance Regulation). Soon thereafter, state lawmakers passed a reform bill unanimously, upping parental damage awards to $250,000 (more than double what it was) and child death benefits to $50,000 – five times what it used to be. These benefits are retroactive. Another $100,000 per family has been allocated for guaranteed transport and home modifications.

The law also pledged to make the best interests of the child Priority No. 1. Also for the first time, a parent advocate and an advocate for disabled children were added to NICA;s board. There’s also now an ombudsman who will work directly with parents. The previous executive director of the agency resigned, and a new interim ED has been assigned.

Parents say they are still hoping lawmakers will approve increased benefits for those who set aside their careers to remain at home and become caregivers for their severely disabled children. Continue reading

Many people considering a Florida medical malpractice claim envision dramatic courtroom scenes of emotional testimony under a relentless media spotlight. The reality is the vast majority of these claims never even make it to a trial.West Palm Beach medical malpractice lawyer

Medical malpractice claims that prevail beyond the early stages of summary judgment motions will most likely be settled during negotiations between your attorney and insurers for the doctors, hospital, or other health care providers involved. It is imperative that you are working with a dedicated West Palm Beach medical malpractice attorney with extensive experience in insurer negotiations.

Here are some key things to know about South Florida medical malpractice settlement negotiations.

Florida Medical Malpractice Law

Medical malpractice claims in Florida are a unique type of personal injury case. State law requires attorneys to investigate these claims carefully before pursuing them. We must acquire expert witness testimony to assert the standard of care was breached by the health care professional, and we have to provide ample notice to the defendants of the claim.

Whereas most Florida personal injury cases have a four-year statute of limitations in which to file a claim, the time window for medical malpractice claims is just two years. Depending on whether there is a government defendant involved, notice requirements may be even shorter than that. There are very few exceptions, so it’s important to act quickly if you have the slightest inkling you may have a claim. Continue reading

Expert medical testimony is crucial in any Florida medical malpractice claim – for both sides. It’s required to even move past the early stages of a case (by presenting sufficient evidence the defendant breached the applicable standard of care for their profession and position). It’s also critical in helping jurors determine whether that standard was breached and if so, whether that breach caused the medical injury. Special medical knowledge is pivotal.Palm Beach medical malpractice lawyer

Per F.S. 766.202, a medical expert is defined as a person who is duly and regularly engaged in the practice of his/her profession AND holds a health care professional degree AND who meets the requirements set forth in F.S. 766.102. That provision holds (among other things) that the expert witness in a medical malpractice case must be able to speak to the prevailing standard of care that a reasonably prudent health care provider in the same or similar situation would abide. In order to do that, they need to conduct a complete review of the pertinent medical records, but they also need to be someone who specializes in the same specialty as the health care provider defendant. (For example, a general practitioner wouldn’t likely be able to attest to the purported negligence of an anesthesiologist.)

As our Palm Beach medical malpractice attorneys can explain, the fact that a plaintiff’s expert medical testimony is so important has increasingly made it a target for defense requests to exclude it. The standard for admissibility of expert witness testimony is called the Daubert standard, after the 1993 U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals. Florida previously used the less-rigorous Frye standard, but adopted the Daubert standard in 2019. Continue reading

Two recent Florida medical malpractice involving anesthesiologists have made national headlines, shining a spotlight on incidents involving these highly-trained medical professionals. anesthesiology error

Physician anesthesiologists are responsible to evaluate, monitor, and supervise patient care during and after surgery. They are tasked with delivery anesthesia, which is medication that helps with care, pain management and critical care medicine. There’s general anesthesia, where a patient is made to be completely unconscious. Then there’s regional anesthesia, where only part of someone’s body is anesthetized (such as in an epidural/spinal block). Lastly, there is local anesthesia, in which numbing medication is only applied to a small part of the body. Anesthesiology is not a field that leaves much room for error.

Anesthesia error can lead to serious, lifelong injuries or even deaths. Mistakes such as too much anesthesia, too little anesthesia, the wrong type of anesthesia, or failure to properly monitor a patient before, during, or after anesthesia is administered can be the basis for a South Florida medical malpractice claim that may hold the hospital, surgery center, anesthesiologist or other medical staffers accountable. Continue reading

When it comes to the dangers of medical devices or medications, the learned intermediary doctrine holds manufacturers responsible to describe the known risks to doctors, who in turn interpret those risks to patients. Patients then rely on the interpretations of their physicians to make informed medical choices. One effect of this, however, is that the manufacturer’s duty to warn of possible danger is to the physician who provides the medication, conducts the surgery or oversees treatment – not to the general public. drug and medical device litigation Florida

But what if the doctor in question is receiving some sort of financial benefit from the manufacturer for prescribing or using a particular drug or device?

Recently, the U.S. Court of Appeals for the Eleventh Circuit weighed a request by plaintiffs to create a “financial bias exception” to the intermediary rule in a Florida product liability lawsuit stemming from a vaginal mesh injury. However, finding no such precedent or even discussion of it in previous decisions, the court declined to do so. Continue reading

Any car accident can be traumatic and stressful. But when you are pregnant, all of this is compounded two-fold. The U.S. Centers for Disease Control & Prevention reports that car accidents are a top cause of injury and death for pregnant women and a leading cause of traumatic fetal death. pregnant car accident Florida

As our West Palm Beach car accident attorneys can explain, crashes can present unique and scary complications for both mother and child. Knowing some of these unique risks and what should be done immediately after can help empower victims and increase your chances for fair compensation from negligent drivers.

See a Doctor – Even if You Feel Fine

First thing’s first: If you’re in a crash, get to the doctor right away, even if you aren’t transported to a hospital via ambulance. This is a critical precautionary measure for both you and your unborn child. Continue reading

West Palm Beach medical malpractice lawyerThe statute of limitations on Florida medical malpractice claims is two years from the date of the incident/cause of action. However, it’s important to have an experienced medical malpractice attorney review your claim much sooner than that deadline if possible. There are several good reasons for this, not the least of which is because the (not-always-obvious) federal status of some defendants could mean there are additional considerations that will require more time to prepare the case. There could also be shorter administrative deadlines.

Ensuring your case is not only timely and properly filed but in the correct venue is critical. 

This was one of the matters at issue in the case of P.W. v. U.S., recently before the U.S. Court of Appeals for the Seventh Circuit. Continue reading

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