Articles Tagged with West Palm Beach medical malpractice attorney

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for the Eleventh Judicial Circuit Court declined to impose the cap (first implemented 30 years ago), finding it to be outdated and also agreeing with plaintiffs’ assertion that it is in violation of Florida’s Constitution by allowing a damage award to be lowered with no regard as to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

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.” medical malpractice

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

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

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

More than 10 years ago, Florida voters soundly agreed that “adverse medical incident reports” should be public knowledge to patients. That measure was known as “Amendment 7.” However, there is now an effort underway to limit access to this information once again, driving concern that physicians and other health care providers will be able to more easily conceal wrongdoing. medical malpractice

A former general counsel to the governor, now a member of the state’s Constitution Revision Commission, has formally proposed an amendment to the Florida Constitution that would place limitations on the kinds of records that could be used in medical malpractice litigation against physicians, hospitals and other health care providers.

The reason these records are so important is because they allow the public – and medical malpractice claimants in particular –  to slash through the red tape. Prior to the passage of Amendment 7 (which was done with an overwhelming majority), it was incredibly common for hospitals to make it difficult to obtain prior records of wrongs by a given physician or hospital, characterizing the data as privileged by risk management or peer review. Continue reading