Palm Beach medical malpractice attorney

Florida Medical Malpractice Lawsuit Rules Shift With New State Supreme Court Decision

July 6, 2023 | by David J. Halberg, Esq.

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.

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

South Florida Medical Malpractice Claims for “Never Events” Can Yield High Damage Awards

September 30, 2022 | by David J. Halberg, Esq.

Any health care provider will tell you that with every procedure, treatment, or medication, there may be a modicum of risk. Poor medical outcomes aren’t always the basis for a South Florida medical malpractice lawsuit. However, grounds for such claims may be strong when the incident in question involves a so-called “never event.” Palm Beach medical malpractice lawyer

As our West Palm Beach medical malpractice lawyers can explain, the non-profit patient protection organization the National Quality Forum describes never events as mistakes in medical care that are clearly:

Identifiable.
Preventable.
Serious in their consequences for patients.
Indicate a major problem in the safety and credibility of the health care facility.

Not all Florida medical malpractice lawsuits stem from never events, but most never events likely amount to medical malpractice.

The NFQ has a long list of all the various incidents that are generally understood as never events. Some of the most common include:

Surgery on the wrong body part.
Foreign body left in a patient after surgery.
Severe pressure ulcer that’s acquired in a hospital.
Preventable post-operative deaths.

They’re called never events because, very simply, they should never happen. And yet, they still do.

$900k FL Medical Malpractice Verdict for Spinal Surgery Never Event

Recently, the Miami Herald reported on a lawsuit stemming from a never-event at a hospital in Fort Lauderdale. The tone of the headline, “Miami jury said a screw was worth $902,000…” seemed to indicate the damage award was somehow excessive. But as Florida medical malpractice attorneys can explain, it likely had to do with the fact that it involved a never event: Leaving a foreign body in a patient after surgery. Continue reading

Who is a Qualified Expert in a Florida Medical Malpractice Lawsuit? Florida Supreme Court to Decide.

July 16, 2022 | by David J. Halberg, Esq.

The parameters of qualified medical experts in Florida medical malpractice lawsuits will be weighed by the Florida Supreme Court. Justices recently allowed the Florida Medical Association, American Medical Association, and Hospital Medical Association to file briefs in the case supporting the hospital defendant. medical malpractice lawyer Palm Beach

As our Palm Beach medical malpractice lawyers can explain, the court’s ruling on this issue could have far-reaching implications because it will determine the criteria for doctors who provide expert opinions, which are required at the very outset of every Florida medical malpractice lawsuit.

The case, University of Florida and Shands Hospital v. Carmondy, involves a plaintiff who filed a medical malpractice lawsuit due to an infection she suffered after undergoing cervical disc fusion surgery in 2016. Her negligence claims were against a neurosurgeon and an advanced registered nurse practitioner. Her petition included affidavits from a physician who practiced internal medicine and cardiology, and who previously had worked as a hospital specialist.

These cases cannot move past the initial phase unless the plaintiff submits affidavits from a doctor or doctors who are experts on par with the defendant who are of the opinion that the defendant breached the accepted standard of care for their profession. An accepted standard of care is not a simple question to answer. Much depends not only on the education, training, and specialty of that medical professional, but also what type of facility they practiced in and in what region. A highly specialized neurosurgeon working in a top hospital in an urban city with ample resources will be held to a different standard than someone of the same educational and training background, but with fewer resources. Continue reading

Liability for Florida Amputation Injuries

June 21, 2022 | by David J. Halberg, Esq.

Liability for Florida amputation injuries may be imputed to negligent doctor/hospital (medical malpractice), property owner who failed to correct an unsafe condition (premises liability), careless motor vehicle driver (auto accident claim), or product manufacturer/distributor who designed/manufactured/sold a defective product (product liability). There could be other liable parties too, depending on the facts of the case. Given the severity of amputation injuries and the extent to which one can impact the rest of your life, it’s imperative to discuss your legal options with an experienced Palm Beach injury lawyer to determine whether you may have grounds for a South Florida injury lawsuit. Florida amputation injury lawyer

Recently, a doctor and urgent care center were ordered to pay $7.6 million in a medical malpractice lawsuit for Florida amputation injuries suffered by a patient whose bacterial infection was initially misdiagnosed as an ankle sprain. According to the Pensacola News Journal, the case involved a retired firefighter, whose right leg had to be amputated after a medical mistake. Specifically, the patient’s leg became infected after he was exposed to contaminated water in the Pensacola Bay. The leg began to ache and turned blue. When the pain worsened, he went to the urgent care center. Blisters began to develop as he waited in the lobby. Despite these symptoms, he was diagnosed with a sprained ankle, given crutches, and instructed to ice and elevate the leg. The following day, the man saw a podiatrist, who immediately recognized what was happening, and correctly diagnosed the patient as battling an aggressive bacterial infection. He was rushed to the hospital and treated with powerful antibiotics. However, by then it was too late, and the leg had to be amputated to save the patient’s life. The urgent care facility and employee doctor denied liability. However, following an eight-day civil trial, jurors awarded plaintiff $6.8 million and his wife $787,000.

Florida Amputation Injury Cases are High Stakes

Amputation is when any piece of limb of the body is severed. They can be part of planned surgeries, but they may also be the result of an accident or medical mistake.

Losing fingers or toes, while seemingly minor, can be traumatic, resulting in unique challenges for the tasks of everyday life. When someone suffers the partial or total loss of a limb, the consequences can be profound. Continue reading

Is a Florida Hospital Fall a Negligence or Medical Malpractice Claim?

May 30, 2022 | by David J. Halberg, Esq.

Is a claim involving a Florida hospital fall one of negligence – or medical malpractice? Florida medical malpractice lawyer

Our West Palm Beach medical malpractice lawyers recognize this as an important distinction because on the one hand, negligence cases have a four-year statute of limitations and a lower proof burden. Most medical malpractice claims, on the other hand, have a two-year statute of limitations and require expert witness testimony at the outset. These elements can make a major difference in whether a claim survives initial hurdles necessary to overcome summary judgment or outright dismissal. Failure at the outset of the case to correctly determine which category the claim falls into can result in its being tossed on procedural grounds before it really gets started, as opposed to being decided on its merits.

That’s precisely what happened in Gorham v. Martin Memorial Health System, a recent case before Florida’s 4th District Court of Appeal.

According to court records, the case involves an elderly woman who died of a fall while she was a patient at a hospital in Martin County, FL. Her adult children brought her to the facility because she was ill. When she arrived at the hospital, she brought her walker, a walking frame device that provides additional support to maintain balance or stability while walking. It’s a common mobility device for the elderly. The complaint indicates hospital staffers refused to allow her to use her own walker. On more than one occasion, she and her children told the nursing staff that she needed a walker for mobility purposes. Yet time and again, she was told either that one would be provided or that it would be “taken care of.” One nurse also assured her children that if she tried to get off the bed, an alarm would sound, summoning care staff.

The night after she was first admitted, the patient fell while attempting to get out of bed to use the restroom. Nursing staff contacted her daughter, informing her of the fall and telling them she had suffered a “slight fracture.”

Several weeks later, an orthopedic surgeon discovered the patient had actually sustained three serious fractures to her pelvis. Shortly thereafter, plaintiff died. Her family, as representatives of her estate, filed a subsequent claim alleging the injuries sustained from her fall were a substantial cause of her death.

Pre-Suit Requirements for Florida Medical Malpractice Claims

Florida law – specifically F.S. 766.104(1) – holds that no action should be filed for personal injury or wrongful death arising out of medical negligence unless the plaintiff’s attorney makes a reasonable investigation (circumstances permitting) and determines there is grounds for a good faith belief of negligent treatment. Continue reading

How Hard is it to Get Punitive Damages in Florida Medical Malpractice Lawsuits?

January 23, 2022 | by David J. Halberg, Esq.

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.

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

OBGYNs Have Higher Rates of Florida Medical Malpractice Claims Than Other Doctors

October 22, 2021 | by David J. Halberg, Esq.

A recent expose by reporters at The Palm Beach Post detailed the many alleged medical mistakes and lawsuits peppered throughout the 30-year career of a Palm Beach OB-GYN who retained his medical license until only recently. The watchdog reporting raises questions not only about how he was able to continue practicing with his track record, but also why obstetrics and gynecology specialists have higher rates of medical malpractice claims compared to other medical experts. Palm Beach medical malpractice lawyer

According to a survey of more than 4,000 physicians by Medscape, nearly 60 percent had been involved in one or more medical malpractice lawsuits during their career. For OB-GYN practitioners specializing in women’s health, that rate was 83 percent. On average, OB-GYN practitioners are involved in 2 to 3 medical malpractice claims over the course of their careers.

The OB-GYN featured in the Post article was reportedly:

Linked to at least 14 serious injuries of women and children, including six deaths.
Named in four disciplinary cases.
Named as a defendant in nine medical malpractice lawsuits.

“Never Events” – Florida Medical Errors in Surgery Can Lead to Litigation

July 18, 2021 | by David J. Halberg, Esq.

Recently in another state, a hospital admitted a patient received a kidney meant for someone else. The hospital released a statement apologizing for the medical error and said two employees were placed on leave. The only good news is that while the kidney was given to the wrong patient, it is compatible with that person, who is expected to recover. Meanwhile, the surgery for the intended patient has been delayed. NPR reports the hospital is reviewing what went wrong and how to prevent similar mistakes. Palm Beach medical malpractice lawyer

Such incidents are what are referred to by healthcare professionals and medical malpractice lawyers as “never events.” These are errors in medical care that are:

Clearly identifiable.
Preventable.
Serious in their consequences for patients.
Indicate a real problem in the safety and credibility of a health care facility.

These can include wrong side, wrong site, wrong procedure, wrong patient. Simply put, they are things that should never happen. When they do, patients adversely affected are rightly entitled to some form of compensation for medical expenses, lost wages, pain and suffering, loss of life enjoyment, loss of consortium (spouse) and wrongful death. Continue reading