West Palm Beach medical malpractice attorney Tag Archives

What Are My Odds of Winning a Florida Medical Malpractice Lawsuit?

February 5, 2023 | by David J. Halberg, Esq.

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?”

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

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

When Florida Anesthesiologists Make a Mistake

June 2, 2021 | by David J. Halberg, Esq.

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

Florida Arbitration Agreements Increasingly Common in Health Care

January 21, 2021 | by David J. Halberg, Esq.

Doctors, nurses and other healthcare providers in Florida have a professional and legal responsibility to provide care to patients according to the prevailing standard for their education, experience and position. When they fail to do so resulting in patient harm, they can be held accountable with a Florida medical malpractice claim. Verdicts and settlements are typically paid out by insurers. West Palm Beach medical malpractice lawyer

But in recent years, our West Palm Beach injury lawyers have noted a troubling trend of doctors and health care companies compelling patients to sign binding arbitration agreements before they receive care. Patients are given forms to sign away their constitutional right to have complaints of substandard care weighed in a court of law. If they decline, they are told to look for another provider.

It should be noted if you’re harmed as a result of substandard care, these agreements may not be enforceable, thanks to a 2016 Florida Supreme Court case. You should consult with an experienced medical malpractice law firm before deciding how to proceed. Continue reading

Florida Medical Malpractice Attorney Ryan Fogg Wins $3.6M for Plaintiff in Wrongful Death Lawsuit

February 27, 2019 | by David J. Halberg, Esq.

Halberg & Fogg PLLC South Florida injury law firm partner Ryan Fogg recently won a $3.6 million medical malpractice arbitration award on behalf of a Cocoa Beach man for the wrongful death of his wife, the result of medical malpractice at Cape Canaveral Hospital in Brevard County. The court-approved arbitration award followed four years of litigation, for which our team has been tirelessly committed to obtaining accountability and compensation for our client. West Palm Beach Medical Malpractice Attorney Ryan Fogg

It began with a common ailment: Back pain. Decedent, a 60-year-old woman, sought relief from a doctor, receiving four spinal injections at the facility over the course of three months in spring 2012.

As West Palm Beach medical malpractice attorney Ryan Fogg later explained to Florida Today, decedent was back in the hospital less than two weeks after that last injection – this time in the emergency room, suffering agonizing pain. Continue reading

Palm Beach Medical Malpractice Lawsuit: Surgeon’s Family Alleges Profound Injury After Medication Error

December 11, 2018 | by David J. Halberg, Esq.

A surgeon who for 40 years fixed broken hearts as a cardiologist is now in a vegetative state, according to a Palm Beach medical malpractice lawsuit. The claim alleges the doctor’s former employer, JFK Medical Center in Atlantis is liable for a series of medical mistakes – starting with an egregious medication error – that nearly killed the active, energetic 74-year-old. Palm Beach medical malpractice lawyers know this case underscores the fact that if even a distinguished member of this hospital’s own staff is at risk for medical errors, imagine how common they must be for so many of the rest of us.

Research by patient safety experts at Johns Hopkins in 2016 revealed medical errors are the No. 3 cause of death in the U.S. Unfortunately, most of those incidents go unchecked because health care providers rarely come out and admit they were wrong. It’s up to families and survivors to initiate their own investigation, which is especially tough if they themselves don’t have a medical or legal background. Talking with an experienced medical malpractice lawyer in Palm Beach will help give you a better sense of your options.

A newer study published in the journal Research in Social and Administrative Pharmacy found that medication errors by health care providers are a leading cause of death, with the most common type of errors being:

Omission of medicine.
Wrong dose/ strength of medicine.
Wrong kind of medicine.

It’s important if one has any suspicion a loved one may have suffered severe injury or death as a result of a medication error to discuss these concerns with an experienced medical malpractice lawyer in South Florida. Continue reading

Miami Judge Rules Medical Malpractice Damage Cap Unconstitutional

July 21, 2018 | by David J. Halberg, Esq.

A circuit court judge in Miami-Dade has ruled damage caps in a Florida medical malpractice lawsuit are unconstitutional and can’t be applied even when plaintiff previously rejected a defendant’s offer to voluntarily arbitrate the matter. medical malpractice attorney

It should be pointed out that in two previous Florida cases – N. Broward Hosp. Dist.c v. Kalitan in 2017 and Estate of McCall v. U.S. in 2014 – that damage caps in medical malpractice lawsuits are unconstitutional, based largely on the unfounded assertion that costs of medical malpractice insurance were out-of-control and needed to be curbed to avoid doctors fleeing the state to work elsewhere. The issue in this case, Defranko v. Poole, was whether that was still applicable despite plaintiff’s rejection of the defense offer to arbitrate, as outlined in 766.207(7)(k) and 766.209(4)(a). The laws stipulate that when a plaintiff is successful at trial but refuses a defendant’s initial offer to voluntarily arbitrate, claims for non-economic damages are capped at $350,000.

Plaintiff in this case had taken the medical malpractice claim to trial and jurors awarded $500,000. The defendants sought to have that award reduced by $150,000, a motion plaintiffs opposed on the grounds it was a violation of the Florida Constitution’s equal protection clause (as was determined in the Katilan and McCall).

The judge for the Eleventh Judicial Circuit Court declined to impose the cap (first implemented 30 years ago), finding it to be outdated and also agreeing with plaintiffs’ assertion that it is in violation of Florida’s Constitution by allowing a damage award to be lowered with no regard as to the severity of one’s injury. Continue reading

Did “Alarm Fatigue” Play a Role in Your South Florida Medical Malpractice Injury?

June 17, 2018 | by David J. Halberg, Esq.

Walk into almost any hospital emergency room or intensive care unit – and what do you hear? There is the almost constant whoosh-and-honk of the ventilator. There might be an infusion pump, beeping in a high-pitch tone every six seconds or so. Blood pressure monitors will let out one single long tone after another. All these medical devices contribute to something we as medical malpractice attorneys recognize as “alarm fatigue.”

Although all of these monitors have their purpose, most of the time they don’t require any action. When medical professionals (nurses, in particular) grow accustomed to this constant din of noise – sometimes several hundred alarms daily – they can grow desensitized to it. Others, to avoid becoming overwhelmed, may turn the volume down. Some might simply ignore them. This could have serious and possibly deadly consequences to patients.

Patient safety advocates and medical malpractice attorneys have been raising concern about this issue for many years. However, it’s become an increasingly more pressing problem as technology evolves and the medical device community emerges with an increasing number of complex, loud machines – all intended to save lives, but contributing to this alarm fatigue issue. Continue reading

Florida Supreme Court Draws a Line on Medical Malpractice v. Negligence

May 7, 2018 | by David J. Halberg, Esq.

Not every injury that occurs at the hands of a medical professional or inside a medical institution is considered medical malpractice. The Florida Supreme Court once again made this distinction in a recent case when asked to consider whether the trial court made the right decision in tossing a negligence lawsuit for failure to meet stringent medical malpractice lawsuit requirements, or whether the appeals court was right for reversing the lower court to allow the matter to proceed. medical malpractice attorney

Negligence versus medical malpractice is an important distinction because if a hospital or health care professional is successful in having the case designated as sounding in medical malpractice, plaintiffs must then abide by the state’s complex medical malpractice statutory schema, as outlined in F.S. 766.106. This includes specifications for pre-suit notice (including sending a copy of the complaint to the Department of Health and the Agency for Health Care Administration), to determine if conduct alleged subjects a licensee to disciplinary action. It also involves giving defendant 90 days in which to conduct a review of the allegations and either reject the claim, make a settlement offer or make an offer to arbitrate. (Settlement at this phase is rare.) Then plaintiff has 30 days from receipt of that response to give their own response. Then there is an informal discovery process, response to written questionnaires, collection of un-sworn statements by treating providers and more. Additionally, medical malpractice claimants must have an expert witness who is equally if not more qualified than the defendant to testify to a breach in the applicable standard of care. Finally, (save for some exceptions) medical malpractice claims have a two-year statute of limitations, whereas personal injury litigation has a four-year statute of limitations.

Negligence cases are much more simple. That’s why if a defendant can argue it’s medical malpractice, they will, because, as our South Florida medical malpractice attorneys know, it means more hurdles for you. 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