Articles Posted in Medical Malpractice

Have you or a loved one recently suffered from the negligence of trusted medical professionals? If so, we can help you seek compensation.

Suing against medical facilities can be a daunting task without the help of legal professionals since these practices usually have a solid legal defense attorney. It is important to know you have the right to defend your health or a loved one by being able to file a claim against a practice.

If you’re asking if it’s possible for you to sue a hospital for medical malpractice, know that it is. We’re here to help you distinguish what medical malpractice is and how you can fight against it. 

Nothing can be more devastating for expecting parents than experiencing a birth injury that was the result of medical malpractice, especially if it caused the death of their child. Although most medical professionals will take all the necessary precautions to keep babies safe and healthy during the delivery process, mistakes can happen. These mistakes can unfortunately result in a long-term birth injury or fatality.

If it is found that the birth injury was caused by the negligence of the medical staff, parents of the child may be eligible for financial compensation. You could recover damages related to the incident such as hospital bills, medical devices, mental and emotional suffering, and additional medical care, if needed. If you suffered the loss of your baby due to medical malpractice, you could recover these damages plus funds for funeral and burial costs, as well as loss of enjoyment of life. 

However, it is important that you discuss your birth injury claim with a licensed lawyer who has experience working with cases involving medical malpractice. People who decide to hire an experienced lawyer for legal representation usually garner fairer settlement amounts, when compared to those who choose to represent themselves. 

Unfortunately, serious birth injuries can have debilitating effects on children and their families that could last a lifetime. Children who are injured at birth often suffer from long-term health issues which may require expensive medical treatment, special schooling, at-home care, and other accommodations needed to perform daily activities. Speaking to a licensed lawyer could help you hold negligent parties accountable and pursue compensation to recover these costs.

The attorneys at the law firm of Frankl Kominsky Injury Lawyers understand the struggles families must endure after a serious birth injury, which is why we offer free initial evaluations to discuss your legal options. There is no obligation needed and your information is kept completely confidential. 

Our firm has more than 40 years of combined legal experience while recovering more than $100 million in successful verdicts and settlements. Our licensed lawyers have extensive experience of the medical malpractice laws in Florida and how they may be applied to cases involving injuries caused during the birthing process. 

When someone is injured due to the negligent act of a healthcare provider, they may be able to pursue a claim for compensation against the responsible parties through a Florida medical malpractice lawsuit. However, before a case can be filed, specific procedural requirements must be met.

Under Florida’s Medical Malpractice Act, a medical malpractice plaintiff must conduct a reasonable investigation to determine that their claim is being brought in good faith. Under Florida Statutes section 766.104, good faith can be shown by obtaining a written opinion from an expert stating that, in the expert’s opinion, the plaintiff’s case has merit. An affidavit must be completed for each defendant named in the plaintiff’s case.

A separate section of the Medical Malpractice Act describes in detail the necessary qualifications for an expert. Under section 766.102, the most basic requirements for any party to be qualified as a medical expert are that the witness is a healthcare provider who holds an active and valid license. The witness must also conduct a complete review of the relevant medical records before being qualified to testify.

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In a recent opinion, a state appellate court discussed the notice requirements of a Florida medical malpractice lawsuit. That presented a situation in which a plaintiff filed a lawsuit against a healthcare provider raising claims that the plaintiff believed was not based on a theory of medical malpractice. Thus, the plaintiff did not take the extra steps to comply with the state’s notice requirements for medical malpractice lawsuits.

The court had to decide if the case should be dismissed based on the plaintiff’s failure to comply with the additional notice requirements. Ultimately, the court concluded that the plaintiff did not need to comply with the additional requirements because the plaintiff’s lawsuit was brought under a traditional theory of negligence and not considered a medical malpractice case.

Florida Statutes section 766.106 – Florida’s Medical Malpractice Notice Provision

Florida lawmakers have made it so all Florida medical malpractice plaintiffs must comply with additional requirements in order for their case to be properly heard. These additional requirements can be burdensome, however, if they are not followed a plaintiff’s case may be dismissed without the merits of the case ever being heard.

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Medical malpractice claims in Florida are treated differently than general negligence claims. For one, plaintiffs in Florida medical malpractice cases have to follow certain procedural requirements before filing a lawsuit. Another difference is that the statute of limitations for medical malpractice claims is two years, compared to four years for general negligence claims. Whether a claim falls under the definition of “medical malpractice” is not always clear, as a recent Florida Supreme Court case illustrates.

Medical Malpractice in Florida

In Florida, medical malpractice is defined under Florida Statute § 766.106(1)(a) as a “claim, arising out of the rendering of, or the failure to render, medical care or services.” Florida courts have decided that to be considered a medical malpractice claim, the negligent act had to “ar[ise] out of medical . . . diagnosis, treatment, or care,” and the diagnosis, treatment, or care had to be “rendered by a provider of health care.”

Florida Supreme Court Defines Medical Malpractice in Lawsuit Against National Deaf Academy

The Florida Supreme Court recently decided a case that considered the definition of a medical malpractice claim. In that case, a woman brought a claim against the National Deaf Academy after she was injured as a resident there. One day, while she was residing at the treatment facility, she threw rocks at the staff and the building and pulled on the building’s cables and wires in an attempt to remove them. A nurse attempted to restrain the resident, and both of them fell, causing the resident to injure her leg.

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Last month, a state appellate court issued a written opinion in a Florida premises liability lawsuit that presented the court with the opportunity to discuss when a negligence case becomes subject to the additional procedural requirements of a medical malpractice case under Florida law. Ultimately, the court determined that the facts as presented in the case fell within the traditional theory of negligence, and it was not subject to the additional requirements of Florida medical malpractice cases.

The Facts of the Case

The plaintiff was a patient of the defendant doctor. The patient had an appointment with the defendant to remove a catheter. When the defendant doctor entered the examination room, he instructed the plaintiff to climb atop the examination table. The doctor then pulled out a small stepping stool to assist the plaintiff. Once the plaintiff was atop the table, the doctor scooted the stool back under the table.

The doctor removed the catheter without incident. At the completion of the procedure, the defendant instructed the plaintiff to get dressed and go make an appointment with the front desk for a follow-up visit. However, the doctor did not pull the stool back out from underneath the table. The doctor then left the room.

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All Florida medical malpractice lawsuits must be filed within a certain amount of time, or the judge overseeing the case will dismiss the plaintiff’s case. Pursuant to Florida Statutes section 95.11(4)(b), Florida medical malpractice cases must be filed within two years “from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” Notwithstanding the above rule, all Florida medical malpractice cases must be filed within four years of the alleged act of negligence.

Understandably, the inclusion of the phrase “should have been discovered with the exercise of due diligence” can lead to confusion and is often a point of contention in Florida medical malpractice cases. In a recent Florida appellate opinion, the court was tasked with determining whether a plaintiff’s case was filed within the two-year statute of limitations.

The Facts of the Case

The plaintiff had a mammogram performed, the results of which were interpreted by the defendant, a radiologist. The results of the mammogram indicated that there was a nodule in the plaintiff’s body, and the defendant believed that she may have malignant breast cancer. However, the defendant did not tell the plaintiff or her primary care doctor.

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Earlier this month, the Florida Supreme Court issued a written opinion in a medical malpractice case that required the court to discuss the Florida state statute that explains how judges should handle cases alleging that the defendant medical professional left a foreign object in the plaintiff’s body. The case was interesting in that, unlike many cases of its type, the plaintiff knew exactly who had left the object in his body, as well as when it should have been removed.

Foreign Objects

Section 766.102(3)(b) of the Florida Statutes states that when a foreign object is discovered in a plaintiff’s body after a surgery, that fact alone is prima facie evidence of negligence in a case against the most recent surgical care provider. The reason that this law – as well as other similar laws – was passed is because a patient waking up from surgery cannot identify who left the foreign object in their body in many instances because they were under anesthesia when the event occurred.

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Many find an extended stay in a medical facility to be a nerve-wracking affair. Likely not among the many fears that one considers in advance of a stay at a hospital, however, is the risk that the staff would intentionally exploit one’s vulnerability. Nevertheless, even the unexpected has the potential of becoming reality. For instance, in a recent decision, Florida’s Second District Court of Appeal tackled issues arising from an unfortunate case involving a woman who was allegedly sexually assaulted while receiving care at at a hospital’s mental health care facility.

In her complaint, the plaintiff alleged that while she was a patient at the aforementioned mental health care facility, a technician employed by the hospital sexually assaulted her in her room. She further alleged that she reported this attack to hospital officials, whom she claims intimidated her and declined to investigated the incident. She also asserted that there was a high prevalence of sexual assaults at this facility and that the hospital and its agents failed to exercise reasonable care in preventing the attack. Specifically, the plaintiff alleged that the purported assaulter had ready access to her room and acted suspiciously prior to the incident in common areas where his conduct was observable to others.

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