medical malpractice attorney

Government Drops Appeal of $42M Birth Injury Verdict in Medical Malpractice Lawsuit

February 26, 2018 | by David J. Halberg, Esq.

South Florida medical malpractice attorneys recognize obstetrics and gynecology as a medical practice area with higher-than-average rates of litigation. Malpractice in obstetrics and gynecology can result in catastrophic injuries and fatalities for both women and babies. A recent survey by Medscape revealed some of the top reasons for lawsuits against Ob/Gyns are:

Patient suffers an abnormal injury – 36 percent
Failure to diagnose – 22 percent
Failure to treat – 15 percent
Poor documentation of patient instruction and education – 5 percent
Improperly obtaining/ lack of informed consent – 4 percent
Failure to follow safety procedures – 3 percent
Errors in medication administration – 2 percent

These usually involved a maternal or fetal death, failed tubal litigation, poor timing/ performance of a cesarean section, bowel perforation or shoulder dystocia. A recent case of a catastrophic injury suffered by a baby delivered by an Ob/Gyn at a federally-funded hospital was allegedly caused by the physician’s “unjustified and overly-vigorous use” of forceps during the birth of a child. The child reportedly now suffers from lifelong mental disabilities, and after a jury awarded the family $42 million for this severe brain injury, the federal government has withdrawn its appeal. Continue reading

$26M Medical Malpractice Verdict Results in $25M Settlement and Drop of All Future Appeals

January 4, 2018 | by David J. Halberg, Esq.

Most people assume the end of the road for a Florida medical malpractice lawsuit is the verdict. However, that is not the case as there is always the potential for appeal. The National Center for State Courts reports medical malpractice cases have an appeal rate of 18 percent. Those cases that tend to have the highest rate of appeal are those that involve serious injuries, complex medical and/ or scientific evidence and expert testimony. That’s why medical malpractice cases in Florida tend to have a higher rate of appeal than, say, a car accident injury verdict. What’s more, the center reported, defendants who lose medical malpractice cases are more likely to appeal than plaintiffs. medical malpractice lawyer

Most medical malpractice cases that are appealed involve:

Loss of mental function;
Facial scarring;
Loss of sight/ hearing;
Death;
Paralysis.

Because appeals can be so costly, it’s not unheard of for medical malpractice plaintiffs to end up back in negotiations with defendants – even after they have obtained a favorable verdict. The reason is if there is a good chance defendant will appeal (and may have a strong argument on appeal), plaintiff may agree to a settlement – ending the case then and there, albeit for a lesser amount – than go through the time, expense and ordeal of an appeal. It’s also possible that if a trial is bifurcated (split into separate issues, usually liability and damages) that a defendant will settle after liability has been determined, but prior to a finding of damages. Continue reading

Report: Florida Medical Malpractice Lawsuits Rarely Lead to Professional Discipline

December 28, 2017 | by David J. Halberg, Esq.

We know that successful medical malpractice lawsuits are first and foremost intended to compensate victims of careless doctors, hospitals, nursing homes and other health care providers. But the other function these claims serve is to alert both patients and state health officials to problematic trends with individual caregivers and facilities. medical malpractice attorney

The National Practitioner Data Bank, which follows medical malpractice lawsuits against active practitioners and their outcomes, reports that between 2005 and 2014, only 1 percent of doctors were linked to one-third of all medical malpractice settlements. Further, the greater number of claims the physician settled, the much higher the chances were the doctor would pay another in the future. Doctors who had previously settled two malpractice cases were more than twice as likely to be involved in a third settlement, compared to those who had one previous settlement.

These findings make a recent report from South Florida’s The Sun-Sentinel all the more troubling. Reporters revealed that when medical malpractice lawsuits are settled or even decided in favor of the plaintiff in a jury trial, those doctors and facilities are rarely penalized by officials with the state’s Department of Health. Continue reading

Study: Electronic Health Records Have Alarming Error Rates

November 26, 2017 | by David J. Halberg, Esq.

Digitization of medical records has been shown to improve patient safety. However, a new study by The Doctors Company, a physician-owned medical malpractice insurer, shows that electronic health records used by 90 percent of hospitals and 80 percent of doctors’ offices, are at the root of many new medical malpractice lawsuits. medical malpractice lawyer

The firm reported that an analysis showed the number of claims involving electronic health record errors as a contributing factor has risen steadily over the last decade.

The potential liability risks to the medical malpractice insurer were first noted beginning in 2007. Between then and 2010, there were 2 total claims wherein these records were a contributing factor. By 2013, there were 28 such claims. There were a total of 97 such claims closed between January 2007 and June 2014. Between July 2014 and December 2016, there were 66 claims involving errors with electronic health records. Continue reading

Florida Jury Orders Eye Doctor to Pay $13M for Botched Surgery

October 29, 2017 | by David J. Halberg, Esq.

An 80-year-old South Florida man was awarded $13 million after a botched cataract surgery that a jury concluded was the result of medical malpractice.

NBC-6 Miami reports jurors concluded the medical center where the surgery was conducted was liable in a case involving the negligence of an opthalmologist with whom the center contracted for routine eye surgeries. The surgery resulted in patient suffering total blindness in one eye.

As our medical malpractice attorneys in Miami can explain, normally medical centers (hospitals, clinics, nursing homes, etc.) aren’t vicariously liable for the negligence of independent contractors. Instead, they are only vicariously liable for the work of employees. While it must seem to many patients that doctors who work at these facilities work for them, more often than not, this isn’t the case. However, in this case, the jury determined the physician was an actual employee of the center, even though he was practicing on contract.

Vicarious liability stems from a legal doctrine of respondeat superior, which is Latin for “let the master answer.” It means an employer can be liable for the negligent acts of employees who were acting in the course and scope of employment. It does not require proof that the facility itself did anything directly wrong, only that it employed the person who was negligent and that person was acting as an employee at the time the injury occurred. Continue reading

Medical Malpractice Lawsuit to be Heard by Florida Supreme Court

September 28, 2017 | by David J. Halberg, Esq.

Attorneys for the estate of a South Florida woman who died during surgery have filed a notice of appeal to the Florida Supreme Court after a divided appellate court decision favored a defendant anesthesiologist. medical malpractice

The 3rd District Court of Appeal last month in a 2-1 ruling upheld a directed verdict for the defendant by the Miami-Dade County circuit judge. Although plaintiff attorney’s notice did not give any detailed information about the arguments that would be made before the state high court, the case originated with the 2009 death of a 45-year-old woman, who was undergoing a surgical procedure to remove a non-aggressive brain tumor.

According to court records, defendant anesthesiologist conducted an evaluation of decedent prior to the surgery. She later died during the operation due to what the majority appellate panel found was an extreme loss of blood. However, the dissenting opinion agreed with plaintiff that anesthesiologist erred in reading an electrocardiogram (EKG) prior to administering anesthesia. An EKG is a test that measures the heart’s electrical activities. While the majority justices found the doctor had acted properly, noting another anesthesiologist also conducted an evaluation prior to surgery, the dissenting justice sided with plaintiff in finding the results of that EKG were abnormal and should have been a red flag that there would be issues in surgery. That puts plaintiffs in a stronger position for the upcoming appeal. Continue reading

Fla. 2nd DCA Awards Expert Witness Fees to Medical Malpractice Plaintiff

September 19, 2017 | by David J. Halberg, Esq.

One of the reasons Florida medical malpractice cases are so complex – and costly – is because they require at least one (and usually more) expert witness. F.S. 766.102(1) places the burden of proof in these cases on the plaintiff (person injured) to show the health care provider breached the prevailing professional standard of care, given the care provider’s care, skill and treatment in light of all relevant surrounding circumstances. The court will look carefully at what the accepted standard of care as viewed by “reasonably prudent similar health care providers.” medical malpractice

The mere fact of a medical injury doesn’t create the presumption of a health provider’s negligence (except in cases where a foreign object, such as a surgical sponge, is found). The way plaintiffs prove defendant care provider breached the standard of care is to have a qualified expert witness – someone of the same or similar experience as defendant – testify as to plaintiff’s position. While our medical malpractice lawyers in Naples work on a contingency fee basis (meaning we aren’t paid unless you win), expert witness fees are something plaintiff is responsible to pay, regardless of the outcome of the case. In many instances, though, when a plaintiff wins, expert witness fees will be covered by the losing party.

However, a recent ruling by Florida’s Second District Court of Appeals held that a plaintiff who prevailed in a medical malpractice lawsuit was entitled to have the defendant pay the expert attorney fees, to the extent plaintiff is able to show the fees were both reasonable and necessary, even though one of those expert witnesses was also a treating physician. Continue reading