Articles Posted in Medical Negligence Issues

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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.

Chest X-RayThe 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.

AshtrayThe 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.

ContractThe 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.

Medical SuppliesThe 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.

Law BookDepending 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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Earlier this month, a West Virginia appellate court issued a written opinion in a slip-and-fall case that occurred at a hospital. The issue the court had to decide was whether the plaintiff’s case was properly considered a medical malpractice case under state law, or whether it was a premises liability case. The significance of the distinction between the two types of cases is that medical malpractice cases are subject to additional procedural requirements.

Doctor's OfficeThe Facts of the Case

The plaintiff accompanied her husband to the defendant hospital for a medical check-up. The plaintiff’s husband checked in and was escorted to an examination room by a medical assistant. The medical assistant instructed the plaintiff’s husband to have a seat on the examination table and then left the room.

As the plaintiff’s husband attempted to climb onto the examination table, he fell back onto the plaintiff. Both the plaintiff and her husband sustained serious injuries, and the plaintiff’s husband died 90 days after the incident. The plaintiff filed a premises liability lawsuit against the hospital.

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Earlier this year, one state’s supreme court had the occasion to discuss and adopt the continuing course of treatment doctrine in a medical malpractice case. In the case Parr v. Rosenthal, the court adopted the doctrine, which holds that a medical malpractice claim does not accrue for the purposes of the statute of limitations until the defendant doctor stops treating the plaintiff for the condition giving rise to the lawsuit. However, the plaintiffs were ultimately unsuccessful in their case because, although the court adopted the doctrine, the court also determined that the plaintiffs’ case was not a proper application of the doctrine.

Alarm ClockThe Facts

The plaintiffs were the parents of a young boy who was born with a large bump on the back of his leg. After several years of trying to figure out what the bump was and whether it was potentially harmful to their son, it was diagnosed as a desmoid tumor. The plaintiffs were referred to the defendant doctor who was experienced using a novel technique called radio frequency ablation to treat tumors, however, he had never used the technique on a desmoid tumor.

The plaintiffs agreed to have the defendant operate on their son. However, during the operation the boy was badly burned and the procedure could not be completed. The boy was treated by other doctors within the defendant doctor’s practice group, but the defendant was not involved in any of the boy’s follow-up care. Ultimately, the boy’s leg became infected and he needed to have his leg amputated above the knee.

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Under Florida law, all personal injury cases must be brought within a certain amount of time. Normally, this time frame is called the statute of limitations, and while there are some exceptions, the general rule is that a late-filed case cannot be heard by the courts, and the plaintiff will be without recourse for their injuries. While this concept is a straightforward one, determining which statute of limitations applies in a specific case is not always an easy task.

AmbulanceDifferent types of cases have different statutes of limitations. One of the strictest statutes of limitations is for medical malpractice cases. In many states, including in Florida, the statute of limitations in a medical malpractice case is two years. Compare that with the statute of limitations for general negligence cases, which is four years, and it is clear why it is important to determine at the outset which statute of limitations applies. Below is an example of one plaintiff’s experience bringing a traditional negligence case against a paramedic that initially was classified as a medical malpractice case.

Aldana v. Stillwagon:  The Facts

Stillwagon, an on-duty paramedic, caused an accident when he struck Aldana’s vehicle after running a red light. At the time, Stillwater was on his way to the medical emergency. Aldana filed a personal injury lawsuit against Stillwater 17 months after the accident, arguing that his negligence in running the red light caused his injuries.

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Florida courts are already overburdened by the number of lawsuits filed in the state each year. To help curb the number of new lawsuits each year, and to ensure that medical malpractice cases are heard in a timely manner, the Florida legislature has set out a series of rules that limit the time in which a medical malpractice plaintiff can file a lawsuit against a medical provider. Of course, all cases have time limitations, but medical malpractice cases have some of the most stringent.

CalendarThese rules, called statutes of limitations, can act to completely prevent a victim of medical malpractice from recovering compensation for an act of medical malpractice. In fact, the statutes even prevent the claim from being heard in many cases. Therefore, it is extremely important that anyone who believes they have been a victim of medical malpractice reach out to a dedicated personal injury attorney as soon as possible to preserve their right to file a lawsuit and seek compensation.

Indeed, Florida medical malpractice plaintiffs must also comply with other procedural requirements, such as a pre-suit investigation to determine the validity of the claim. A plaintiff’s failure to comply with any of these requirements may result in early dismissal without the ability to refile the case. Indeed, that is exactly what happened to the family of a man who believed that the hospital treating their loved one was negligent in his care and then tried to cover up their mistake.

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Earlier this month, a state court in Indiana issued an opinion explaining how the summary judgment standard should be applied by trial courts when there is conflicting evidence presented to the trial judge. In the case, Siner v. Kindred Hospital Limited Partnership, the court explained that summary judgment is not appropriate when there is conflicting evidence regarding a material issue of the case.

CourtroomThe Facts of the Case

The plaintiffs in Siner were the surviving loved ones of a woman who had passed on after being placed in the defendant hospital’s care. The allegations involved the hospital’s refusal to provide the deceased with life-sustaining treatment. In short, since the hospital told the deceased’s loved ones that it was unwilling to provide life support in the event it was necessary, the plaintiffs decided to relocate their loved one, who died a short time after her relocation.

The plaintiffs had the case reviewed by a medical review board, which issued the following opinion:  “the defendants failed to comply with the appropriate standard of care, and their conduct may have been a factor of some resultant damages, but not the death of the patient.” The plaintiffs cited the report as evidence that the defendant was potentially liable for the death of their loved one.

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