Articles Posted in Medical Malpractice

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.

X-RayUnderstandably, 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.

DoctorForeign 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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hospital hallwayMany 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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courthouseIn response to a perceived crisis in medical insurance costs, the Florida legislature passed the Medical Malpractice Act (“MMA”), which was designed in part to deal with perceived rising medical malpractice costs in the state. See Franks v. Bowers, 116 So. 3d 1240, 1247 (Fla. 2013). In a specific effort to curb these costs, the Act included a  statutory scheme governing arbitration agreements covering potential medical malpractice claims. Although the law clearly evidences the legislature’s intent to allow medical providers to enter into arbitration agreements with patients, there continues to be ample litigation regarding how much the terms of such agreements may veer from the provisions under the MMA. See Fla. Stat. §§ 766.207, 766.212 (outlining the required contents of medical malpractice arbitration agreements). Indeed, in a recent decision, Hernandez v. Crespo, the Supreme Court of Florida ruled that a medical malpractice arbitration agreement executed by a woman who delivered a stillborn fetus after being turned away from a doctor’s appointment was void as a matter of public policy.

The key facts at issue in Crespo are as follows. The principal plaintiff in this action was 39 weeks into her pregnancy and experiencing contraction pains when she was turned away by her physician for showing up late to the appointment. The original appointment was scheduled for August 17, 2011, and she was rescheduled for an appointment on August 21, 2011. On August 20, 2011, the plaintiff delivered a stillborn fetus. A little more than a year later, on December 19, 2012, the principal plaintiff and her husband, the other plaintiff in this action, served notice on the doctor from whom she was turned away and Women’s Care Florida that they intended to initiate litigation regarding the treatment she received, which they alleged caused the stillborn birth. The plaintiffs ultimately filed suit on May 23, 2013, and about a week thereafter, the defendants moved to stay proceedings and compel arbitration pursuant to an arbitration agreement that had been executed between the parties. On August 29, 2013, the plaintiffs requested binding arbitration, pursuant to Fla. Stat. § 766.207, which the defendants rejected, arguing that they sought to enforce the signed agreement, which forestalled the need for § 766.207 arbitration. The trial court ultimately granted the motion compelling arbitration, but Florida’s Fifth District Court of Appeals reversed, finding that the arbitration agreement at issue violated public policy. The Fifth District did note, however, that its ruling was in direct conflict with a Second District decision on the issue.

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therapistIn a long-awaited decision, Chirillo v. Granicz, the Supreme Court of Florida provided much-needed clarity on the thorny question of the liability that may extend to a psychotherapist for his or her patient’s suicide. The decision resolves conflicting rulings from two of Florida’s Courts of Appeal and provides coherent guidance to litigants wondering whether the conduct of a treating psychotherapist is actionable.

Granicz was brought by the widower of a patient who had received mental health care treatment from a primary care physician for about three years prior to her suicide. The physician began providing treatment to the patient in 2005, and in September of that year, he switched the patient’s antidepressant medication from Prozac to Effexor. In October 2008, the patient contacted the physician’s office and told a medical assistant she had ceased taking the Effexor because she believed it was causing various deleterious side effects, including difficulty sleeping and digestive problems. After reading notes on this conversation taken by the medical assistant, the physician called the patient, told her that he was changing her prescription to Lexapro, and referred her to a gastroenterologist. The physician told the plaintiff that she could obtain samples of Lexapro from the office, but he did not schedule an appointment to meet directly with the plaintiff. Some days thereafter, the patient went to the office to obtain the samples.

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pediatrics hospitalAlthough it’s common knowledge among Florida’s medical malpractice practitioners that state law requires a complaint for medical negligence to be accompanied by an expert affidavit, it is not uncommon for some to not realize that simply having the affidavit is not necessarily sufficient to comply with the requirements of the law. Indeed, courts in our state regularly dismiss medical negligence cases supported by an affidavit because the plaintiff fails either to provide sufficient notice to the defendant of his or her intent to sue or to provide the defendant with sufficient access to information about the expert during this notice period. These subsidiary requirements under Florida’s medical negligence laws were at issue in a recent decision from Florida’s First District Court of Appeal, Morris v. Muniz.

Morris arose from an alleged act of medical negligence that occurred at Gulf Coast Medical Center. Specifically, the plaintiff alleged that the negligence of various medical professionals resulted in the death of her daughter, who died three days after the plaintiff gave birth to her. Following her loss, the plaintiff initiated a wrongful death lawsuit against various defendants, including Gulf Coast and several medical professionals involved in the birth. Shortly after the lawsuit was filed, the defendants moved to dismiss, arguing that the plaintiff failed to comply with pre-suit notice and investigation requirements under Fla. Stat. Section 766.205(2). The plaintiff opposed the motion, but the trial court dismissed the action, finding that the plaintiff failed to provide the defendants with reasonable access to information regarding her expert during the pre-suit investigation period.  The plaintiff then brought the current appeal.

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pediatrics-1529152-1920x1280-300x200In a recent decision, Saunders v. Dickens, 151 So. 3d 434 (Fla. 2014), the Supreme Court of Florida ruled that in a medical negligence action, “a physician cannot insulate himself . . . from liability . . . by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care.” Prior to the Supreme Court’s repudiation of this type of testimony, trial courts typically permitted experts to opine about this issue, leaving the propriety of numerous medical malpractice decisions in dispute. Indeed, the Fourth District Court of Appeal was recently tasked with addressing this issue in Cantore ex rel. Felix v. West Boca Med. Ctr., Inc., in which the court needed to determine whether a trial court’s admission of a subsequent treating physician’s testimony required a new trial.

Cantore arises from an adverse jury verdict in a medical malpractice case brought by the parents of a minor against West Boca Medical Center and Variety Children’s Hospital (a.k.a. Miami Children’s Hospital). Two years prior to the incidents at the heart of this case, the minor was diagnosed with hydrocephalus, which is a condition characterized by the excessive buildup of cerebral spinal fluid in the cranium. The minor’s case of hydrocephalus was caused by a benign tumor that blocked the outflow of fluid from her cranium. At that time, the minor underwent a procedure to correct the blockage. However, scar tissue began to develop and was uncovered by a CT scan performed about two years later at West Boca, showing that spinal fluid had begun to accumulate again. A doctor at Miami Children’s scheduled the minor for another corrective procedure.

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hospital-1233639-1920x1440-300x225Given the different procedural and substantive rules that apply in medical negligence cases, distinguishing medical negligence from ordinary negligence is a fundamental issue in cases that possibly implicate medical negligence. Indeed, many attorneys are aware of the far more arduous standards that apply to medical negligence, and they will often try to purposefully describe the facts and underlying legal theories of a case in order to avoid it being placed in the ambit of medical negligence liability. Although artful pleading can occasionally be successful, courts define medical negligence broadly and, as a result, stymie many creative attorneys’ attempts to avoid these heightened rules for liability. For instance, the scope of medical negligence was an issue in a recent decision from Florida’s First District Court of Appeal, Shands Teaching Hosp. and Clinics, Inc. v. Estate Of Lawson, which addressed whether an alleged act of negligence arising from services provided at a psychiatric unit qualified as “medical negligence.”

Lawson followed a tragic accident in January 2013. The plaintiff in this case is the estate of a woman who, two months prior to the date of the accident, had been admitted to the facility for a psychiatric condition. Although she was confined in a locked psychiatric ward, the woman was able to retrieve an employee’s unattended keys and badge and abscond from the facility. The woman went to a nearby interstate, where she was struck by an oncoming truck and died. Her estate brought suit against the facility, arguing that the defendant’s action amounted to “ordinary negligence.” The facility moved to dismiss, contending that the complaint sounded in “medical negligence,” and therefore the plaintiff needed to comply with the provisions of Section 766.106(1)(a) of the Florida Statutes. Since the plaintiff did not comply with the mandatory pre-suit requirements of Section 766.106(1)(a), the facility argued that the complaint should be dismissed.

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photo_5256_20080312Many medical negligence actions are characterized by information asymmetry. Indeed, although a person may be aware that she has been injured, she may be unaware of the source of this injury and, moreover, whether the conduct leading to the injury was actually negligent. Given the imbalance in information that often exists, discovery is of particular importance in many medical malpractice cases. In fact, since 2004 the Florida Constitution has contained a provision that affords citizens a right to access particular information in medical negligence cases. The breadth of this provision, Fla. Const. article X, section 25, was recently addressed in a decision from Florida’s Second District Court of Appeal, Bartow HMA, LLC v. Edwards.

Edwards arose from an alleged act of medical negligence during a gallbladder removal surgery that resulted in the severing of the plaintiff’s common bile duct. Following this surgery, the plaintiff brought suit against the hospital where the surgery was performed and the physician who performed the procedure. During discovery, the plaintiff served the hospital with a request for all documents created within the five years prior to the procedure that related to the physician’s treatment of any patient and for all documents related to the hospital’s review of the plaintiff’s care and treatment. The hospital did not comply with the request in its entirety, arguing that certain documents were subject to privilege and thus beyond the bounds of discovery. Among the documents the hospital declined to produce were those related to a peer review of the adverse medical incident at issue that was requested by the hospital’s counsel. The plaintiff brought various motions seeking disclosure of the documents, and the trial court eventually entered an order requiring the hospital to produce all documents related to its peer review of the adverse medical incident. The hospital then brought this interlocutory appeal.

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photo_10943_20090512-270x300Last year, we posted about the Supreme Court of Florida’s decision in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), which held that caps on noneconomic damages in wrongful death medical negligence cases were unconstitutional under the equal protection clause of the Florida Constitution. In a recent case, North Broward Hospital District v. Kalitan, the Fourth District Court of Appeal, which encompasses both Palm Beach and Broward County, addressed a question that remained in the wake of McCall: whether the reasoning in McCall applies with equal force to noneconomic damages caps in personal injury medical negligence cases. In a decision with a far-reaching impact, the Fourth District Court of Appeal concluded that it does, and it held that noneconomic damages caps in personal injury medical negligence cases are also unconstitutional.

The events that led to the Kalitan litigation occurred in 2007. That year, the plaintiff in this action went to North Broward Hospital District for outpatient surgery to treat carpal tunnel syndrome in her wrist. The procedures required the plaintiff to be placed under general anesthesia. During intubation, which was required for administration of the anesthesia, the plaintiff’s esophagus was perforated. Prior to this incident, the plaintiff had never had bodily pain beyond symptoms associated with carpal tunnel. After awaking from the procedure, the plaintiff complained of severe pain in her chest and back. The anesthesiologist was notified. Unaware of the perforation, the anesthesiologist ordered that the plaintiff be administered a drug for chest pain. The plaintiff was later discharged, and a friend drove her home. The following day, the friend went to check on the plaintiff and found her unresponsive. The friend took the plaintiff to the emergency room, where the perforation was discovered. The plaintiff was rushed for emergency surgery. The plaintiff was in a drug-induced coma for several weeks thereafter and had to undergo several more surgeries and intensive physical therapy. She continues to suffer with persistent physical pain and mental disorders arising from the trauma that occurred.

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