Articles Posted in Medical Malpractice

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In 2003, then Governor Jeb Bush signed into law Fla. Stat.§ 766.118, which capped the amount of recovery a plaintiff could receive from defendants for medical malpractice. The medical community claimed that doctors were fleeing Florida because of the sky-high cost of medical malpractice insurance and these caps would help to keep doctors in Florida and attract doctors to Florida. This statute limited noneconomic damages, otherwise known as pain and suffering, to between $500,000 and $1.5 million, depending on whether the healthcare provider is deemed a “practitioner” or a “nonpractitioner” and if the plaintiff died, was left in a vegetative state, or can prove “catastrophic injury.”https://www.ocalainjurylawyersblog.com/files/2014/06/Screen-Shot-2014-06-27-at-3.20.51-PM.png

In November of 2006, Susan Kalitan arrived at Broward General Hospital for an out-patient carpal tunnel surgery, which is performed under general anesthesia. While the doctor and two nurses were administering the anesthesia, Kalitan’s esophagus was punctured. When she awoke in the recovery room, she immediately began complaining of chest and back pain, but because her heart rate and rhythm appeared normal, her complaints were ignored and she was sent home where her health deteriorated. The next morning Kalitan was discovered by a friend and rushed to the hospital. Kalitan was diagnosed with a perforated esophagus. Due to the perforation, fluid and food had escaped her esophagus and found its way into her chest cavity for more than 24 hours, causing a life-threatening infection. Kalitan had to have chest and neck surgery performed to remove the foreign material from her chest and remove the infection. She was then placed into a drug induced coma for three weeks while she recovered and fed through a feeding tube. When Kalitan awoke from her coma she remained in the hospital for several more weeks; she underwent speech pathology to learn to speak and swallow again and physical therapy to learn how to walk again. Kalitan remained on a feeding tube for six months. These are just of few of the complication that Kalitan continued to suffer because of the negligence of the anesthesiologist and Broward General Hospital.

In 2008 Kalitan filed a medical malpractice suit against North Broward Hospital District (“North Broward”) and the doctors and nurses who administered the anesthesia and their employers. In 2011 the case went to trial and the jury found the anesthesiologist, nurse anesthetist, student nurse anesthetist and the nurses at North Broward negligent and awarded her $4,718,000 in damages; $718,000 in economic damages and $4,000,000 in non-economic damages. Unfortunately, because of Fla. Stat.§ 766.118, Kalitan’s damages were reduced by the trial judge to $2,793,011. Both Kalitan and the Defendants appealed the decision and the Fourth District Court of Appeals reversed based upon the Florida Supreme Court’s decision in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014). In McCall the Court found that the caps in Fla. Stat.§ 766.118 were unconstitutional in multiple claimant personal injury cases.

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Diagnostic errors are defined as any mistake or failure in the diagnostic process leading to missed, wrong, or delayed diagnoses.  Diagnostic errors make up the largest number of malpractice claims in the U.S. today.  Researchers at Johns Hopkins Medical Center, Baltimore, reviewed all U.S. paid malpractice claims from the past 25 years, and found that diagnostic errors accounted for the largest fraction of claims, the most severe patient harm, and the highest amount of payouts.  One  report predicts most people will experience at least one wrong or delayed diagnoses over their lifetime. One conservative estimate stated 1 in 20 adults who seek outpatient care every year will experience an error in their diagnoses. Unfortunately, up until recently, diagnostic errors had been a mostly unrecognized area of patient safety.medical-doctor-1314902-m

Most of these errors are not even realized. Often, diagnostic errors result from poor coordination of care. Doctors not paying attention when writing a prescription, or nurses not being careful with medication are two often-seen examples.  However, some doctors may realize the misdiagnoses, but choose not to confront the patient as a way to save face if the problem isn’t serious. Getting the right diagnosis is critical, because it is the starting point for every other health care decision.

Patients can help tremendously in making sure they get the right diagnosis, experts say. Make sure to always be clear, complete and concise when describing your illness. Describe when your symptoms began and what made them better or worse. Remember past treatments. Letting your doctor know what medicines helped and what side effects they had can save you and your doctor time and frustration.  Ask your clinician questions such as ‘What could be causing my problem?’, and be sure to always get a second opinion as well.

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Earlier this month, the Supreme Court of Mississippi allowed a victim of alleged medical malpractice to put up an expert witness to testify as to whether the victim may have avoided having a stroke had the defendant hospital provided him with the proper medical care. In the case of Memorial Hospital at Gulfport v. White, the plaintiff was a patient at Memorial Hospital who claimed that the Hospital’s negligence in failing to diagnose his pre-stroke symptoms contributed to his having a stroke in the days after he visited the hospital.

stethoscope-1427015According to the court’s opinion, White first went to a different medical center complaining of slurred speech and tingling in his arms and legs. Staff at that hospital conducted a CT scan, which came back negative, and they sent White home with no treatment.

The next day, White continued to have slurred speech and was now experiencing numbness on the left side of his body. He went to the emergency room at Memorial Hospital, where he was diagnosed with hypertension, given medication, and sent home. He was advised to follow up with his primary care physician in a few days.

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Florida’s 4th District Court of Appeals handed down a decision earlier this month that will effectively remove the caps on non-economic damages, such as pain and suffering, in Florida medical malpractice and personal injury lawsuits. The Court decided that arbitrarily limiting the amount that an injured plaintiff can recover for non-economic damages violated the equal protection clause of the state constitution. As a result of the ruling, plaintiffs in medical malpractice lawsuits can seek and be awarded any amount of non-economic damages that the judge or jury sees fit.

courthouse-1567074The Case of Susan Kalitan

Susan Kalitan filed a malpractice lawsuit in 2008 against the North Broward Hospital District and several physicians who treated her during an outpatient carpal-tunnel surgery that she had performed in 2008. Kalitan was placed under general anesthesia for the surgery, and after she returned home, she began suffering from an infection in her esophagus and was required to return to the hospital to undergo chest and neck surgery. She was placed in a drug-induced coma for three weeks while recovering.

After the trial, the jury awarded Ms. Kalitan $4.7 million in damages, $4 million of which were non-economic damages for pain and suffering. The award was reduced by $2 million using the limits put into place by a 2003 law, and Kalitan appealed.

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Earlier this month, the Supreme Court of West Virginia decided an interesting case that may influence the way Florida courts interpret a pressing legal issue in the State. In the case of Tug Valley Pharmacy, LLC v. All Plaintiffs Below, a group of 29 plaintiffs banded together to sue three pharmacists and one physician, alleging that the medication they received from the defendants led them to become addicted to and abuse controlled substances.

pills-out-of-bottle-1394618-mThe Case at Trial

The group of plaintiffs claimed that the defendants provided them with prescriptions for certain medications, namely oxycodone, xanax, and Lortab, which furthered their addictions and ultimately led them into criminal behavior, including possession, distribution, fraud, misrepresentation, and doctor-shopping. Most of the plaintiffs admitted to using prescription drugs recreationally prior to receiving the prescription from the defendant doctors.

Specifically, the plaintiffs claimed that the defendants were aware of and perpetuated the “pill mill” activities of medical providers, such as refilling prescriptions too early, filling prescriptions for large amounts of medication, providing contradicting medication to the same patient, and providing medications that are known to work together to provide a “better high.”

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Earlier this year in a closely divided decision, the Mississippi Supreme Court decided the case of Holaday v. Moore, in which the court affirmed the denial of a doctor’s motion to dismiss the charges against him for being brought after the statute of limitations had expired. The plaintiff added the defendant to an earlier filed suit after discovering that the doctor potentially had more involvement than they’d believed based on his prior representations.

in-the-medical-lab-1237146-mThe plaintiff alleged that the defendant intentionally concealed his involvement in the incident, and they didn’t discover his true involvement until discovering inconsistent testimony through various other doctors’ depositions. The defendant argued that the plaintiff had the necessary information to sue him within the two-year statute of limitations from the discovery of her injury, along with the other defendants.

The Plaintiff’s Injury and the Defendant’s Involvement

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Earlier this month, a Fox News affiliate posted an article discussing pharmacy errors in general but also covering the fact that the nationwide drugstore chain, Walgreen’s, has currently had several claims made against it alleging the negligence of pharmacy personnel. According to the report, there have been two recent accusations that Walgreen’s provided the wrong drug to pharmacy patients.

pills--tablets-1-689648-mIn the first instance, a mother went to pick up what she believed was her son’s allergy medication. However, instead of the allergy medicine, the filling pharmacist provided the boy’s mother with a strong anti-psychotic medication. The woman gave her son two doses of the medicine and then noticed the ill effects of the medication. Her son could not talk or breathe. She took him to the hospital where the error was discovered. and hospital staff told the woman that she likely would have lost her son had she given him one more dose.

The second alleged error took place when a 15-year-old girl went to fill her prescription for antibiotics. However, instead of antibiotics she was provided Olanzapine, a medicine used to treat schizophrenia. The girl told reporters that her heart started racing, and she started to get blurred vision. Thankfully, she was treated at the hospital and made a full recovery.

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A prominent medical malpractice case against a doctor at the University of Texas Health Science Center of Houston began earlier this month. According tobaby-hand-1439526-m a report by the Times-News, a patient was 35 in 2009 when she went to the emergency room for abdominal pain and was diagnosed with appendicitis. During preparation for the surgery, the doctors discovered that the patient was three weeks pregnant. An emergency appendectomy was performed.

When the patient was about 23 weeks pregnant, she started feeling abdominal pains again. When she went to the emergency room it was discovered that she again had appendicitis and that a portion of her appendix was not removed during her earlier surgery. Unfortunately, the patient’s daughter was born four months prematurely because of the recurrent surgery.

The patient brought a suit for medical malpractice against the doctor because of his alleged negligent actions in performing the surgery. The plaintiff’s attorney is claiming that the defendant doctor did not follow standard medical care, was not using reasonable care, and did not use his best judgment. The defendant doctor is claiming that he had no choice to perform the surgery in the manner that he did because of her pregnancy. The plaintiff’s first witness is an expert witness who will testify as to the defendant’s actions.

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The Supreme Court of Idaho reversed a medical malpractice case in favor of the plaintiff. The defendant is a nursing home that specializes in long-term rehabilitation care. The plaintiff’s mother was a resident of the nursing home for five years. Apparently, during her stay there, the plaintiff’s mother had a fall. Subsequently, emergency room physicians administered medication that caused the plaintiff’s mother to have extreme side effects, including nausea, vomiting, and other issues. She was placed in the “comfort care” unit of the nursing home, and unfortunately she died shortly thereafter.

old-folks-116318-mThe plaintiff filed a complaint against the nursing home, claiming that it knew of his mother’s fall risk and that it did not provide adequate support to prevent the fall. The company moved to dismiss the case, claiming that the plaintiff did not prove that it acted below the appropriate standard of care.

The nursing home provided an affidavit from the nursing care director that it did follow appropriate protocols, and as a result the plaintiff also provided affidavits from two experts stating that the nursing home did indeed fall below the standard of care. The Court initially ruled in favor of the defendants, but the Supreme Court of Idaho found that the affidavits provided by the plaintiff were reliable and should have been admitted because they go to genuine issues of material fact.
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The Florida justice system sees hundreds of thousands of cases each year. Many of these cases are medical malpractice cases. Essentially, a medical malpractice case is a claim of medical negligence, alleging that, but for the medical professional’s negligence, the plaintiff would have avoided the harm that they suffered.

stethoscope-220620-mIn an effort to make sure that the court system is able to handle each case with the individual attention it deserves, and to ensure that both sides are treated fairly, Florida lawmakers have come up with a series of procedural rules that must be followed in all medical malpractice cases. When these procedural rules are not followed, a medical malpractice plaintiff may lose their ability to bring their case. However, the procedural steps are only required when the plaintiff is bringing a medical malpractice suit.

Pierrot v. Osceola Mental Health, Inc.

In the recent case, Pierrot v. Osceola Mental Health, Inc., a Florida court had the occasion to explain when the procedural requirements for medical malpractice cases apply. The basic facts are as follows: A pregnant woman was involuntarily committed to a mental health facility (Osceola Mental Health) after she told witnesses that she was suffering extreme abdominal pain. After the woman was taken to the hospital, the staff failed to properly care for her and she died a few days later. The plaintiff in this case then filed suit under the “Baker Act” Continue reading →