Medical Malpractice Category Archives — Page 4 of 4 — South Florida Injury Attorneys Blog Published by South Florida Injury Lawyers

January 7, 2015

Fifth District Court of Appeals Reverses Grant for a New Trial in Medical Malpractice Case

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.

November 19, 2014

Second District Court of Appeal Reverses in Medical Negligence Suit

by Frankl Kominsky Injury Lawyers

A key issue that arises in negligence litigation generally and medical negligence cases in particular is properly defining and asserting the applicable duty of care. Since the existence of a legally cognizable duty of care is essential for every claim of negligence, successfully proving that a defendant’s conduct was negligent depends on properly fitting that conduct within the borders of a recognized duty of care. This requirement is at the heart of the Second District Court of Appeal’s recent decision in Granicz v. Chirillo, in which the court addressed whether a physician could be held liable for medical negligence following the suicide of a patient.

As noted above, the Granicz litigation arose from a patient’s suicide on October 9, 2008. Prior to her suicide, the patient had been receiving treatment for depression from her primary care physician, the defendant in this case. Prior to 2005, the patient had been taking Prozac, but the physician switched her medication to Effexor at the time he began treating the patient in 2005. At some time in June or July of 2008, the patient stopped taking her medication because of side effects. On October 8, 2008, the patient called the office of the physician and spoke with a medical assistant. The patient told the medical assistant that she hadn’t been feeling right since June or July and had ceased taking her Effexor. In addition, the patient informed the medical assistant that she was under mental strain, been prone to crying, suffering from gastrointestinal problems, and having sleeping issues that resulted in increased reliance on sleeping medication. The medical assistant recorded this information in a note for the physician. The physician reviewed the note shortly thereafter and decided to change her medication to Lexapro and refer her to a gastroenterologist. Afterward, an employee from the physician’s office called the patient and told her she could pick up samples of Lexapro as well as a prescription for the drug from the office, which the patient did later that day. However, an appointment with the physician was never scheduled, and the physician never spoke with the patient directly. On the following day, the patient’s husband found the patient hanging in the garage of their home.

October 29, 2014

Fourth District Court of Appeal Affirms Dismissal of Broward Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

Given that the Florida law imposes specific evidentiary standards, pre-suit filing requirements, and other obligations on medical negligence cases, it follows that properly distinguishing medical negligence from standard negligence is important for successfully asserting and proving claims that ambiguously skirt the line between standard negligence and medical negligence. This issue is at the center of a recent decision from the Fourth District Court of Appeal, Buck v. Columbia Hospital Corporation Of South Broward. In Buck, the court needed to determine whether it was proper for a trial court to dismiss a wrongful death case for failing to comply with the medical negligence pre-suit requirements of Chapter 766, Florida Statutes.

The act of negligence resulting in the death at issue in this case occurred in May 2012. At that time, the decedent was brought to Westside Regional Medical Center in Broward County and admitted for complications related to chronic obstructive pulmonary disease. Two days following her admission, the decedent was scheduled to have x-rays performed and was transported to the radiology floor. Prior to the decedent’s x-rays being taken, transport techs at the medical facility lifted the decedent from the transport gurney in order to place her on the x-ray table. In the course of this movement, the decedent was dropped on the x-ray table, which caused the decedent to sustain a fracture of her lumbar spine. Various factors, including the decedent’s age and medical condition, limited the treatment options for the broken back. The decedent’s condition deteriorated thereafter, and the plaintiff alleges that the broken back ultimately caused the death of the decedent.

October 15, 2014

Supreme Court of Florida Resolves Conflict in Broward Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

Medical malpractice litigation is not uncommon in Florida. As a result, many state courts have had the occasion to weigh in on the proper standard for medical negligence liability. Although there is harmony among state courts regarding most issues, division does occasionally arise and consequently require resolution by Florida’s highest court. For instance, in one recent case, Saunders v. Dickens, the Supreme Court of Florida resolved a conflict among various state appellate courts regarding the burden of proof for negligence in a medical malpractice action.

The alleged acts of medical negligence that gave rise to Saunders started on July 7, 2003. On that day, the plaintiff visited a neurologist and described symptoms including cramping and feelings of numbness in his extremities, back pain, leg pain, and unsteadiness. After this visit, the plaintiff was admitted to a hospital, where he underwent several MRIs, which did not include an MRI of the cervical spine area. The neurologist then consulted with a neurosurgeon after receiving the results of the MRIs. The neurosurgeon recommended a lumbar decompression procedure, and the plaintiff underwent surgery. However, the plaintiff’s condition failed to improve following the surgery. At this point, the plaintiff returned to the neurosurgeon, who conducted further exams and determined that the plaintiff was experiencing cervical decompression, which would require additional surgery. The surgery was never scheduled, although the plaintiff had been cleared for surgery on November 6.

However, the plaintiff experienced a deep vein thrombosis in December, which prevented the plaintiff from scheduling or undergoing surgery thereafter. The plaintiff then consulted with a different physician, who recommended a second lumbar decompression surgery as well as a cervical decompression surgery. The plaintiff underwent the lumbar surgery but never underwent the cervical surgery. The plaintiff’s condition continued to deteriorate and ultimately resulted in quadriplegia. During the pendency of this appeal, the plaintiff died.

September 17, 2014

Federal District Court Grants Summary Judgment in Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

A common legal issue that arises in the context of imprisonment or other forms of detention is liability for failing to provide or negligently providing medical care to those detained. Irrespective of the location of medical malpractice, however, common evidentiary standards required for medical malpractice actions apply. These issues are at the core of the Southern District of Florida’s recent decision in Segundo v. United States, which involves claims alleging negligence on the part of the medical staff leading to the cardiac death of a detainee at Krome Detention Center in South Florida.

The detainee had been transferred to Krome Detention Center in 2010, and his Transfer Summary noted his severe, preexisting diabetes. At the time of booking, the detainee underwent a medical evaluation that corroborated this prior medical history of diabetes. Following admission, the detainee continued to take oral diabetic medications, and his blood glucose level was checked twice a day. The admission medical evaluation also included a screening EKG, the results of which came back normal and did not indicate any acute or chronic myocardial ischemic changes or other findings associated with coronary artery disease. From the time of his arrival until the day before his death, the detainee did not complain of chest pain, shortness of breath, weakness, fatigue, or other symptoms associated with cardiac dysfunction.

However, the day before his death, Krome medical staff evaluated the detainee for a sore throat, runny nose, and cough. The day after, the detainee stated he felt ill but was nonetheless communicative and able to move. While staff was taking the detainee to the Urgent Care Center at the Krome compound, he suffered an arrhythmia and died. A autopsy report found the detainee’s cause of death to be severe atheroscleros in the left anterior descending coronary artery. Given the normal EKG just days before the death, no evidence in the record suggested that medical staff at Krome should have predicted the subsequent cardiac death. Following the detainee’s death, the personal representative for his estate brought a wrongful death lawsuit against the United States under the Federal Torts Claims Act, alleging negligence on the part of Krome’s officers, agents, and employees.

August 27, 2014

Supreme Court of Florida Invokes Constitutional Provision in Decision on Proper Scope of Discovery in Medical Malpractice Suit

by Frankl Kominsky Injury Lawyers

Although the average course on civics or government thoroughly reviews the provisions of the United States Constitution, many overlook the importance of state constitutions as sources of important rights. While certain state constitutional provisions – for instance, the Florida Constitution’s analog to the Fourth Amendment – are interpreted co-extensively with their federal counterparts, some do provide particularized protections that should not be overlooked. In a recent case, Ampuero-Martinez v. Cedars Healthcare Group, the Supreme Court of Florida raised one such provision: Article X § 25(a) of the Florida Constitution.

Art. X § 25(a) of the Florida Constitution, titled “Patients’ right to know about adverse medical incidents,” provides Floridians with the 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.” Ampuero-Martinez arose from a discovery dispute in a medical malpractice case involving the death of the plaintiff’s father at a medical facility in Miami-Dade County. The plaintiff sought medical records from the facility where her father’s death occurred, and the defendant medical facility objected to the production request. The trial court overruled this objection, but the defendant filed an immediate appeal to the Third District Court of Appeals, which reversed the trial court in part, holding that the trial court failed to properly limit discovery pursuant to § 381.028(7)(a) of the Florida Statutes.

The Supreme Court’s decision in Ampuero-Martinez is quite short for good reason. Three years prior to the Third District Court of Appeal decision, the Supreme Court of Florida had definitively held that § 381.028(7)(a) unconstitutionally contravened the constitutional protection afforded by Art. X § 25(a). See Florida Hosp. Waterman, Inc. v. Buster, 984 So.2d 478 (Fla. 2007). Consequently, the Supreme Court quashed the Third District’s decision and remanded the case to the trial court for reconsideration in accordance with the standards set forth in Buster. In Buster, the court held that several provisions of § 381.028, legislation that had been enacted by the Florida Legislature to “implement” and otherwise give force and effect to Art. X § 25(a), contravened the broad rights provided by the then newly-enacted constitutional provision. Specifically, the court noted the following conflicts:

June 25, 2014

Palm Beach Teen Takes the Stand in Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

Seventeen years after his mother was involuntarily administered laxatives by medical professionals acting at the behest of federal agents, Jordan Taylor took the stand in a Miami-Dade County Courthouse on Monday to discuss the circumstances of his life that could be linked to that regrettable event.

On February 14, 1997, Taylor’s mother was detained by Customs Enforcement agents who suspected she was smuggling drugs into the United States. For the following three days, the mother, who is a U.S. citizen by birth and was seven months pregnant at the time, was held at Jackson Memorial Hospital, where medical professionals acting under the direction of the aforementioned Customs officials administered prescription laxatives in order to determine whether she was in fact carrying drugs.

The laxative administered to her, called GoLytely, had not been recommended for pregnant women in 1997, and its effects had not yet been studied in either pregnant women or pregnant animals. According to the complaint, Taylor’s mother complained of abdominal pain and vaginal bleeding, but pressure to take the laxative persisted. Shortly after this unwanted stay at Jackson Memorial, she prematurely gave birth to Taylor.

April 23, 2014

Florida Supreme Court Rules Statutory Caps on Non-Economic Damages Unconstitutional as Applied in Wrongful Death Medical Malpractice Case

by Frankl Kominsky Injury Lawyers

After months of anticipation, the Supreme Court of Florida has issued its much-awaited decision in Estate of McCall v. United States of America. In a heavily divided opinion that spans nearly 100 pages, the majority of the court held that Florida’s statutorily imposed caps on wrongful death non-economic damages in medical negligence actions violate the right to equal protection afforded by the Florida Constitution. Although family members of the deceased person who died while receiving medical care from Air Force clinicians will welcome the news, the split decision leaves many unanswered questions that will likely need to be hashed out in other decisions.

In February of 2006, the deceased, McCall, was receiving care from family practice clinicians at a United States Air Force clinic when test results showed that her blood pressure was high and that she was suffering from severe preeclampsia, which required that labor be induced immediately. McCall eventually gave birth, but she later went into shock and cardiac arrest as a result of severe blood loss that occurred during the course of her labor and several associated treatments. Following this episode, McCall never regained consciousness and was removed from life support shortly thereafter.

This case arrived at the Supreme Court of Florida in somewhat atypical fashion. This wrongful death action was originally brought in Federal District Court, and the United States was found liable for McCall’s death. The federal court determined that there were economic damages amounting to nearly $ 1 million and non-economic damages amounting to $2 million, including $500,000 for the McCall’s son and $750,000 for each of McCall’s parents. Despite this finding, the Federal Tort Claims Act states that damages are to be determined using the law of the state where the tortious act occurred. Accordingly, the District Court applied Florida’s statutory cap on wrongful death non-economic damages in medical negligence actions, codified as § 766.118 of the Florida Statues. The law limits non-economic damage recovery from all defendants to $1 million in this type of suit, irrespective of the number of claimants. The decision was appealed, and the Federal Appeals Court upheld the application of the cap on damages, holding the cap did not constitute a taking under either Florida law or federal law and did not violate the Equal Protection Clause of the U.S. Constitution. However, since federal courts avoid rendering decisions with respect to unsettled state law, the federal Appeals Court granted the plaintiffs’ motion to certify several questions to the Supreme Court of Florida regarding the interpretation of Florida constitutional law .