Articles Posted in Medical Negligence Issues

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In a recent case, a state appellate court issued an opinion in a Florida personal injury case requiring the court to discuss the state’s medical malpractice pre-suit requirement and whether the plaintiff’s case was required to comply with that requirement. Ultimately, the court determined that the defendant failed to establish, as a matter of law, that the plaintiff’s case sounded in medical malpractice, and thus the plaintiff did not need to comply with the pre-suit requirements.Florida’s Pre-Suit Notice Requirement

Under Florida Statute section 766.106(2)(a), prospective medical malpractice plaintiffs must provide notice to those whom they plan to name as defendants. This notice must contain certain information, such as a list of all known health care providers seen by the plaintiff in the past two years and copies of the plaintiff’s medical records. In addition, the plaintiff must obtain an expert affidavit indicating that the plaintiff’s claims have merit.

The Facts of the Case

The plaintiff in this case was a resident at the defendant psychiatric facility. During his stay, another resident removed a metal handrail from the wall, beating the plaintiff in the head and face with the rail. The plaintiff filed a personal injury lawsuit against the facility, arguing that it breached its duty to provide security and train staff on how to recognize and handle emergency situations.

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In Florida, lawmakers have determined that lawsuits bringing claims of medical malpractice must comply with additional requirements that are not necessary in Florida personal injury cases bringing claims under a traditional theory of negligence. In so doing, lawmakers put courts in the position of determining which cases should be classified as “medical malpractice cases” and thus be subject to the additional requirements.

A recent decision issued by the Florida Supreme Court provides some much-needed guidance for how courts should sort out personal injury cases that lie on the line between traditional negligence and medical malpractice.

The Facts of the Case

The plaintiff was the aunt of a student at a school for the deaf. The student was seriously injured when she was placed in a hold by staff and taken to the ground after staff determined that she was being non-compliant. As a result of her injuries, the student’s left leg was amputated below the knee.

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Earlier this month, an appellate court issued a written opinion in a Florida premises liability lawsuit that arose after the plaintiff fell off an examination table in the defendant doctor’s office. The court was tasked with determining if the plaintiff’s lawsuit should be dismissed because she failed to comply with the applicable statute of limitations. Ultimately, the court concluded that the plaintiff’s lawsuit was not a “medical malpractice” lawsuit as defined by the statute and that her claim need not comply with the stricter statute of limitations for medical malpractice lawsuits.

The Facts of the Case

The plaintiff was seeing the defendant doctor so that he could remove a catheter. When the doctor came into the examination room, he instructed the plaintiff to climb onto the examination table. He then pulled out a stool so that she could more easily get atop the table. The plaintiff safely climbed onto the table, and the doctor performed the procedure without any complications.

After the procedure, the doctor told the plaintiff to go to the front desk and make a follow-up appointment the following week. The doctor then left the examination room without pulling out the stool to help the plaintiff descend off the table. The plaintiff attempted to get off the table but fell as she did so.

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Before a Florida medical malpractice lawsuit proceeds to trial, the parties go through the pre-trial discovery process, in which each side requests information of the other side that they believe will be relevant in the case. While most relevant material is discoverable, historically some categories of evidence have not been discoverable because they fit within a privilege.

In 2004, Florida citizens amended their constitution, adding a “right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” This has come to be known as Amendment 7. Recently, the Florida Supreme Court issued a written opinion clarifying how far Amendment 7 reaches.

The Facts

The plaintiff filed a medical malpractice lawsuit against the defendant doctors after her bile duct was severed during a routine medical procedure. Pursuant to Amendment 7, the plaintiff requested a number of her medical records relating to the medical procedure. The defendants claimed that the medical records were exempt from the rules of discovery, citing several privileges.

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Earlier this month, the Florida Supreme Court issued a written opinion in a case that will likely have great implications across the State. The case involved allegations of Florida medical malpractice brought by the wife of a man who died while in the defendant doctor’s care. The issue involved a discovery rule that allowed for a defendant doctor to compel the plaintiff to release the names of previous health care providers and allowed for the defendant to arrange meetings with the providers without the plaintiff or the plaintiff’s attorney present.

Ultimately, the court concluded that the plaintiff had the ability to assert her husband’s right to privacy to challenge the discovery rules and that the rules were unconstitutional because they burdened the plaintiff’s right to access the court system.

The Discovery Rules

The discovery rules at issue allowed for informal discovery, whereby the defendant could request certain information from the plaintiff. Among the information that could be requested by the defendant were the names of all previous medical care providers. A 2013 amendment to the rules also allowed for the defendant to arrange ex parte meetings with the medical care providers. The plaintiff challenged the aspect of the rules that allowed for ex parte meetings.

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Earlier this month, a Florida appellate court issued a written opinion in a Florida medical malpractice case that required the court to determine if the plaintiff’s case was timely under the applicable statute of limitations. Ultimately, the court concluded that the plaintiff’s case was properly filed within the applicable statute of limitations, and a lower court’s finding to the contrary was reversed. As a result, the plaintiff’s case will be permitted to proceed toward trial or settlement negotiations.

The Facts of the Case

The plaintiff was a patient of the defendant radiologist. In 2008, the plaintiff underwent a mammogram, and the defendant interpreted the results. Despite finding a nodule that he knew at the time was likely to be cancerous, the defendant did not inform the plaintiff or her primary care doctor.

Later that year, the defendant’s office called the plaintiff, requesting she come in for a follow-up. Again, no mention was made of the nodule and the possibility that it was cancerous. It was not until 2010, following a subsequent mammogram, that the plaintiff realized she had breast cancer. By that time, the cancer had metastasized and spread to her bones. The plaintiff’s breast cancer was successfully treated with chemotherapy, but the metastatic cancer in her bones continued to progress.

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Earlier this month, Florida’s Fourth District Court of Appeal issued a written opinion in a Florida personal injury case brought by a former smoker who had developed lung cancer and Chronic Obstructive Pulmonary Disease (COPD). The plaintiff’s case was filed against the manufacturer of the cigarette brand that she used to smoke and claimed that her addiction to cigarettes was what caused her disease.

The case presented the court with the task of determining whether the trial court’s conflicting evidentiary rulings regarding the plaintiff’s expert warranted a new trial. Ultimately, the court concluded that the trial court’s error likely did have an effect on the jury’s decision to find for the defendant and ordered a new trial to take place.

The Lower Court’s Rulings

The lower court first determined that the plaintiff’s treating pulmonologist was not qualified to testify that the plaintiff was addicted to cigarettes. In a subsequent ruling, the lower court then allowed the same pulmonologist to respond to questioning from the defense about the plaintiff’s ability to quit smoking. The pulmonologist explained that the plaintiff “could quit when she was sufficiently motivated to do so.”

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Earlier this month, an appellate court in Florida issued a written opinion in a medical malpractice case that was brought by a patient who was seriously injured during a surgery that was performed by the defendant doctor. Prior to the surgery, the plaintiff signed a contract containing an exculpatory clause. The case required the court to determine if the exculpatory clause was valid, and if so, whether the lower court was proper to dismiss the plaintiff’s case.

The Facts of the Case

The plaintiff required a spinal fusion surgery. She arranged to have the defendant doctor perform the surgery. However, prior to the date of the surgery, the plaintiff signed a contract containing the following clause:

As of January 1, 2003, [the defendants] will not carry any medical malpractice insurance. Being of sound mind and sound body, I hereby acknowledge this fact and agree not to [the defendants] for any reason. My reason for doing this is that I realize that [the defendants] will do the very best to take care of me according to community medical standards.

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Earlier this month, the Florida Supreme Court issued an opinion in a medical malpractice case in which the plaintiff claimed that the defendant negligently left a four-inch piece of drainage tube in his body after a surgery. The court ultimately held that the statute stating that a foreign body left inside a patient’s body is prima facie evidence of negligence should apply to the case, even though the plaintiff knew exactly who left the tube in him.

The Facts of the Case

The plaintiff was admitted into the defendant hospital for a colon resection surgery. During the surgery, several feet of drainage tube were inserted into his body to help his body eliminate fluids after the surgery. A few days after the surgery, a nurse came to remove the tubing before the plaintiff was discharged. She pulled the tube out, as is normal practice, and the plaintiff was sent home.

A few months later, the plaintiff noticed pain in the area of where the tubing had been, and it was discovered that there were approximately four inches of tube still in his body. A subsequent surgery was required to remove the tubing. The plaintiff then filed a medical malpractice lawsuit against the hospital where the original surgery and tube-removal took place.

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There are thousands of cases filed in Florida courts each month. In fact, so many cases are filed in Florida that the system would get bogged down if each case resulted in a jury trial. To help whittle down the number of cases that ultimately go to trial, Florida courts have enacted a series of procedural rules to ensure that only the most diligent plaintiffs and most meritorious cases are allowed to proceed to trial.

Depending on the type of case and the named defendants, there may be dozens of applicable rules that must be strictly followed. A plaintiff’s failure to follow these rules can result in the court refusing to hear the case until the violation is remedied. In some cases, a court will dismiss a plaintiff’s case outright, preventing the accident victim from obtaining relief. A recent opinion from an Ohio appellate court illustrates how an unknowing plaintiff can end up violating court rules despite the best of intentions.

Davis v. Blaylock:  The Facts

Davis’ father passed away while at a local medical center. At the time of his death, Davis’ father was being treated by several doctors. Davis believed that her father’s death was caused by the negligence of the doctors who were caring for him. In hopes of seeking compensation for her loss, she filed a series of wrongful death lawsuits.

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