Articles Posted in Medical Malpractice

Given 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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Many 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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Last 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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Although most people have a basic understanding of the effect a statute of limitations has on a person’s ability to bring suit, the application of a statute of limitations can often be more complicated than expected. For instance, the Fourth District Court of Appeal recently ruled in an interesting case that involved when the statute of limitations begins to run when the injured party is incapacitated and, as a result, needs to have a guardian appointed.

The decision, Barrier v. JFK Medical Center Limited P’ship, arose from an alleged case of medical negligence that occurred in 2010. The plaintiff in this action is the mother, and legally appointed guardian, of the injured person. Her adult son had been transported to a hospital from a substance abuse facility after he attempted to commit suicide. Fewer than 10 hours after his discharge, the same substance abuse facility contacted the hospital to report that the patient was in a lethargic state and unresponsive. He was returned to the hospital, where drugs were discovered in his possession. Within two hours of his arrival, he was discharged again and into the custody of the police. While in police detention, he suffered from a cardiac arrest resulting from a drug overdose and went into a coma from which he has not emerged.

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Negligence liability is fundamentally predicated on the expectation that people should exercise reasonable care in their actions when such actions have the potential to cause harm to another. Although the courts play the principal role in defining the scope of “negligence,” legislatures also actively participate in defining the scope of reasonable care. For instance, Florida law provides that “the discovery of the presence of a foreign body . . . commonly used in surgical, examination, or diagnostic procedures, shall be prima facie evidence of negligence . . . .” § 766.102(3)(b), Fla. Stat. (2011). Pursuant to this rule, courts will place the burden on a defendant in cases when a plaintiff has established that a foreign object was left in him or her. Given the shift in the burden, establishing the presence of a foreign body can have a meaningful impact on medical malpractice litigation, and litigants may battle about the rule’s applicability to the issues presented in their case. The dynamics of the rules application were recently addressed in a recent decision from the Fourth District Court of Appeal, Dockswell v. Bethesda Memorial Hospital, Inc.

The plaintiff in Dockswell had been admitted to the defendant hospital for surgery. The procedure included the placement of a drainage tube. A nurse came in the following day to remove the tube, and the plaintiff was conscious at this time. The plaintiff saw the nurse remove the tube and felt no immediate discomfort. However, a 4.25-inch section of the tube was inadvertently left in the plaintiff. Four months later, after the plaintiff complained of continued pain in the region where the section of tube was left, a CT scan revealed the presence of the tube, which was removed during a subsequent surgery. The plaintiff then filed the current medical negligence suit, and the parties presented conflicting expert testimony on whether the nurse complied with the applicable standard of care. During a charge conference prior to trial, the plaintiff sought the inclusion of a jury instruction based on the foreign object rule. The trial court denied the requested instruction, finding that the plaintiff had to present direct evidence of negligence because the foreign object rule is limited to situations when the plaintiff is uncertain about the person responsible for the negligence. The jury ultimately returned a verdict favorable to the defendant, and the plaintiff appealed, arguing that the trial court erred in denying his foreign object jury instruction.

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When negligence regarding the administration of medication is mentioned, most people would typically think of doctors or nurses. However, other medical professionals may be liable for negligence related to the prescribing of medicine. In fact, Florida’s Fifth District of Appeal recently rendered judgment in an interesting case involving a pharmacist’s liability for the death of one of his customers.

The decision, Oleckna v. Daytona Discount Pharmacy, relates to the treatment of a now deceased patient for stress syndrome. The patient began his treatment in 2009 and received a prescription for Xanax and Hydrocodone or Oxycodone from a local physician. Over the next two years, the physician repeatedly prescribed these drugs before the date that the patient should have depleted his previous prescription. The defendant in this case, a local pharmacy, filled at least thirty of these prescriptions, even though they were prescribed closely in time. In March of 2011, the patient died due to drug intoxication of Alprazolam and Hydrocodone. The estate of the deceased brought suit against the pharmacy, alleging the pharmacy was liable for various forms of negligence associated with filling the deceased’s prescriptions. The pharmacy moved to dismiss, arguing that it could not be held liable for negligence under the circumstances. The trial court granted the motion, and the estate appealed.

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During the discovery process, the sharing of information is considered normal, if not the entire purpose of the endeavor. Indeed, the exchange of evidence often promotes bringing the truth to light efficiently or, at the very least, narrowing the issues in contention. However, some information remains beyond the scope of this liberal sharing process, and litigants will often fight vigorously to preserve the information over which they still have an entitlement to privacy. This situation arose in a recent case that was appealed to Florida’s Third District Court of Appeal, Bailey v. Miami-Dade County.

Bailey arose from an alleged act of negligence at Mt. Sinai Medical Center, involving Miami-Dade Fire Rescue employees and Mt. Sinai staff who dropped a patient who had suffered cardiac arrest aboard a cruise ship from a gurney. The patient later died, and her husband brought a wrongful death action against Mt. Sinai, alleging medical negligence and ordinary negligence. After commencing the action, the complaint was amended to include a count of ordinary negligence against Miami-Dade County. Prior to filing this action, the plaintiff retained a physician to prepare a medical affidavit, which is required for all actions involving medical negligence in Florida. During the discovery process, the physician’s name was disclosed to the defendants on expert interrogatories. The existence of the physician’s affidavit was also disclosed, but the plaintiff refused to proffer the affidavit, asserting work product privilege. Shortly thereafter, Mount Sinai settled, leaving Miami-Dade as the only defendant and ordinary negligence as the sole claim. When the trial court issued an order directing the parties to submit their witness lists, the physician’s name was not listed on the expert witness disclosure list, even though he had been listed as a expert who would testify on the earlier expert interrogatories. The defendant immediately sought to depose the physician, and the plaintiff refused, again citing work product privilege. The plaintiff sought a protective order, but the trial court denied the request, leading to the current appeal.

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Even when performed safely, surgery presents a variety of different risks for a patient. However, not typically among the variety of different risks one considers prior to surgery is the possibility that medical equipment to be implanted is defective. Despite not falling within the ambit of typically considered risks, medical devices, like other products, can be defective in either their design or their construction and lead to patient injury. Harm arising from an alleged defect in medical equipment serves as the central issue in Witt v. Howmedica Osteonics Corp., a recent decision from the District Court for the Southern District of Florida.

At issue in Witt is an alleged defect in an artificial knee manufactured by Howmedica Osteonics Corporation. Specifically, the plaintiff alleged in her Amended Complaint that the artificial knee had “unreasonably dangerous design defects such as the potential of the Knee to loosen after being implanted, leading to failure of the Femoral Component” and that the plaintiff’s alleged diagnosis of “loose right knee prosthesis” was “due to failure of the X-Small Right Medial/left Lateral EIUS Knee Femoral Component …” Following her diagnosis, the plaintiff brought a suit against Howmedica for both strict product liability and negligence. In this decision, the trial court had to determine whether to grant Howmedica’s motion to dismiss, which argued that the plaintiff had failed to plead facts in the Amended Complaint that, if taken as true, would state a plausible claim to relief.

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Although initiating a lawsuit should be essentially the same regardless of the subject matter involved, many types of cases do require that a plaintiff engage in specialized procedures or risk having his or her claims lost. Among the most important of these specialized procedures in Florida is the pre-suit notice and investigation scheme for medical negligence cases provided by Section 766.106 of the Florida Statutes. This notice and investigation process is the subject of a recent decision from Florida’s Third District Court of Appeals, Salazar v. Coello.

To provide background, Section 766.106 requires that a plaintiff with a putative medical negligence claim conduct a pre-suit investigation, after which he or she must, prior to filing a complaint, notify each of the prospective defendants of his or her intent to initiate litigation. The statute further requires that the plaintiff provide, if available, a list of the following along with the notice:  1) all health care providers the plaintiff has seen for the injuries of which he or she has complained subsequent to the purported act of medical negligence; 2) all health care providers the plaintiff has seen in the two years prior to the alleged act of negligence; 3) copies of all medical records on which the expert providing an affidavit in support for the plaintiff’s claim has relied; and 4) a standardized authorization form. Suit may not be filed for 90 days following delivery of this notice, and during this 90-day period the defendant or its insurer are supposed to conduct a review of the claim and determine possible liability. Importantly, during this 90-day investigative period the statute of limitations is tolled against all potential defendants.

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Generally, jury verdicts are rarely disturbed. Unless there is a grievous error that likely had a material impact on the judgment reached, judges will neither issue a ruling notwithstanding the verdict nor order a new trial. This aversion to modifying judgment was illustrated in a recent decision from Florida’s Fifth District Court of Appeal, Weissman v. Radiology Associates of Ocala, P.A., which involved the propriety of a trial court’s order for a new trial in a wrongful death case that had resulted in a jury verdict in favor of the plaintiff.

Weissman concerned an alleged act of medical negligence leading to the wrongful death of a patient. Following the patient’s death, the representative for the deceased plaintiff brought suit against Radiology Associates of Ocala and personnel. After a trial, the jury returned a verdict in favor of the plaintiff. Thereafter, the defendants performed a background investigation on the jurors and filed a motion for the court to conduct juror interviews, alleging that there existed material non-disclosures among several of the jurors. The court performed these interviews and then granted the defendants’ separate motion for a new trial, having found that three jurors had indeed failed to make material disclosures during voir dire questioning. The plaintiff then brought an appeal.

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