West Palm Beach medical malpractice lawyer Tag Archives

Florida Medical Malpractice Ruling: Hospital Liability May Rest on Degree of Control

September 2, 2022 | by David J. Halberg, Esq.

One of the complicating factors in South Florida medical malpractice cases stemming from negligence in hospitals is that very often, the doctors are not direct employees of the hospital. Florida medical malpractice lawyer

Why does this matter? Because in Florida, employers can be held vicariously liable for the negligent actions of their employees. That means one does not need to prove the employer directly engaged in wrongdoing, so long as one can show the negligent employee was acting in the course and scope of employment at the time of the incident. When doctors are classified as independent contractors – separate from the hospital – it means additional proof of direct negligence by the hospital is required in order to prevail in a case against them.

However, a recent South Florida appellate ruling on a medical malpractice lawsuit may broaden the circumstances under which a hospital may be held vicariously liable for the negligent actions of doctors providing care at the medical facility. Justices in Florida’s 1st District Court of Appeal in Gradia v. Baptist Hospital reversed the trial court’s ruling clearing the hospital of vicarious liability in a medical malpractice case.

Florida Medical Malpractice Wrongful Death Bill Dies in Committee

August 5, 2022 | by David J. Halberg, Esq.

A bipartisan-supported state bill that would have allowed non-economic damage claims in Florida medical malpractice wrongful death cases to be brought by the parents of unmarried, childless adult children over age 25 has failed in the Senate Rules Committee.

The outcome was disappointing, but predictable, given the strength of the health care and insurance lobbies here in the Sunshine State. In effect, there will continue to be cases of Florida medical malpractice wrongful deaths for which there is no legal remedy – simply because the decedent had no spouse or minor children under the age of 25.

Proponents of HB 6011 say it would have closed the “free kill” loophole of Florida medical malpractice law. Specifically, the way the law is currently written, it limits financial recovery in medical malpractice wrongful death cases so that the only people who can sue are the decedent’s surviving spouse and/or children under 25. Backers of HB 6011 have argued that this oversight effectively creates an incentive for physicians to allow some patients to die, rather than save them. Specifically, if an unmarried adult patient with no under-25 kids survives injury or illness resulting from medical malpractice, they can sue the doctor in their own right. But if that patient dies, there would be no survivors under Florida law who could bring that claim. This is what patient advocates have been referring to as a “free kill.”

It’s certainly in stark contrast to general negligence wrongful death claims, wherein there is a broader net cast for who has the right to sue.

When a person’s death is the result of a wrongful act, negligence, or breach of contract, Florida law allows family members or the estate to bring claims for lost wages, benefits, and other earnings. Family members may also sue for support and services the deceased can no longer provide, as well as for the loss of guidance and companionship. The law also allows compensation for mental and emotional suffering (non-economic damages). Those who can pursue such claims include:

A surviving spouse.
A child 25 years or younger.
A child 25 years or older, if there is no surviving spouse.
Parents of a deceased child over the age of 25 with no surviving spouse or children.

But Florida treats medical malpractice wrongful death claims differently. Continue reading

Florida Supreme Court to Weigh Hospital Liability of Independent Contractor Doctors

December 5, 2019 | by David J. Halberg, Esq.

The Florida Supreme Court has agreed to decide whether a hospital can be held accountable for the negligent treatment by independent-contractor emergency room doctors. Our West Palm Beach medical malpractice lawyers will be closely following the developments of this case, and a decision is likely to be handed down sometime next year.

The case stems from a botched plastic surgery provided at an unlicensed clinic by a man posing as a Venezuelan doctor. The clinic was licensed to give massages, but advertised the services of certified plastic surgeons (which it did not have) to perform buttocks-enhancement injections. A 28-year-old woman was rushed to a local emergency room after suffering complications from the procedure in 2013. She was treated at the hospital’s emergency room and in the intensive care unit, but died within hours. The “doctor” was later arrested and the clinic shuttered, but her estate filed a lawsuit against both the hospital and emergency room doctors for negligence.

The hospital insists it cannot be held liable for treatment provided by the emergency room doctors, as they were independent contractors. Florida’s Third District Court of Appeal agreed in a ruling earlier this year. However, this ruling conflicts with one by Florida’s Fourth District Court of Appeals in a similar case.

The Florida Supreme Court has agreed to review the conflict, but has yet to set a date for oral arguments. Continue reading

Preventable Medical Error Caused Young Patient’s Death, Florida Lawsuit Says

August 25, 2018 | by David J. Halberg, Esq.

The parents of a 25-year-old South Florida man who died after a seemingly routine IV line removal are suing for medical malpractice, alleging Palms West Hospital made a preventable medical error – and then tried to cover it up. That’s what’s been reported in the Broward-Palm Beach New Times.

His mother told the newspaper that almost immediately after the line was pulled out, her son began clutching his chest, complaining he was unable to breathe. His oxygen levels fell dramatically and he began to convulse. The doctor who rushed in immediately asked the nurse if she’d just removed the central catheter. The man never regained consciousness after that, and died after his family agreed it was time to take him off life support.

The young man was in the hospital after relapsing into his addiction to opioids. Plaintiffs say the hospital tried to steer them away from staffers’ mistakes by telling them their son had died of “broken heart syndrome,” because of his guilt for relapsing. Of course, no such condition exists, and his family would later say this led them to suffer the pain of believing they were somehow responsible for not reassuring him of their steadfast support. They were not aware until the medical examiner listed his cause of death what had really happened: A burst of air entered his vein due to improper removal of a central line catheter. This was a preventable medical error, plaintiffs in this wrongful death action allege. Continue reading

Was Your Hospital Injury Medical Malpractice or General Negligence?

October 6, 2017 | by David J. Halberg, Esq.

Injuries that occur in hospitals are mostly matters of medical malpractice, meaning they stem from substandard care provided by medical professionals. However, some hospital injuries are the result of general negligence (often due to unsafe conditions on the premises). Although hospitals are providers of care, they are also owners of property, with a duty of reasonable care under premises liability law to the general public who enter. medical malpractice

This distinction is clear in some cases. For example, a visitor slips-and-falls in a just-mopped hospital lobby that isn’t marked with a sign. Clearly, that incident isn’t a matter of medical malpractice; the visitor wasn’t even being treated. However, when it comes to patients – current, prospective or leaving – the waters can get muddied.

It’s an important distinction to make because the proof burden for these two types of cases is very different. For general negligence cases, one must simply prove defendant owed a duty of care, that duty was breached and the breach resulted in an accident that caused injuries. However, Florida medical malpractice cases, per F.S. 766.102, require claimants to prove by the greater weight of evidence that alleged actions of health care provider(s) breached the prevailing professional standard of care for that health provider. This considers whether the level of care, skill and treatment in light of all surrounding circumstances is deemed acceptable and appropriate by reasonably prudent similar health care providers. In order to do this, one must present a qualified expert medical witness testimony – and that’s long before one ever gets to the trial phase. There is also the matter of the statute of limitations (the time in which one has to file a case). In Florida, general negligence claims can be filed within four years. Medical malpractice claims have to be filed within two years. Continue reading