Articles Posted in Medical Malpractice

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Earlier this month, an appellate court in California issued a written opinion broadly interpreting what is considered a medical malpractice claim under the state’s statutory framework for cases involving medical negligence. In the case, Nava v. Saddleback Memorial Medical Center, the court determined that the plaintiff’s injury that occurred while he was being transported in the hospital on a gurney should have been brought within the one-year statute of limitations applicable to all medical malpractice cases.

Hospital BedThe Facts

Nava was a patient at Saddleback Memorial Medical Center. One day during his stay, he was being transferred from one part of the hospital to another on a gurney when the gurney tipped and Nava fell to the ground. As a result of the fall, Nava suffered fractures to his clavicle and his knee cap.

Nava filed a personal injury lawsuit against the hospital. The complaint was filed more than one year but less than two years after his injury. This is important because the applicable statute of limitations for negligence claims is two years; however, the statute of limitations for medical malpractice claims is one year.

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Last month, an Illinois appellate court issued a written opinion in a medical malpractice case, applying the “discovery rule” to potentially allow a plaintiff’s late-filed case to proceed to trial. Normally, all medical malpractice cases must be filed within the statute of limitations. However, when applied by a court, the discovery rule can act to toll a statute of limitations until the plaintiff discovers that there may be a viable medical malpractice case against the defendant. Thus, in the case of Moon v. Rhode, the court reversed a lower court’s decision that had held the discovery rule did not apply to the plaintiff’s case and remanded the case for further analysis from the lower court.

SurgeryThe Facts of the Case

The plaintiff’s mother was treated by several doctors for rectal prolapse. Several days after she was treated by the doctors, she passed away, allegedly due to those doctors’ negligence. The plaintiff filed a timely medical malpractice lawsuit against the doctors.

During the course of the plaintiff’s investigation of the initial lawsuit, the plaintiff received an opinion from an expert that another doctor, the defendant in this case, was also partially responsible for failing to notice certain problems evident on an MRI his mother had several years back. The plaintiff then filed this medical malpractice lawsuit against the defendant.

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Medical malpractice cases are subject to very strict rules, including statutes of limitations, which require that the plaintiff file the case within a certain amount of time. If a plaintiff fails to file the case before a statute of limitations runs, the court loses jurisdiction to hear the case, and the plaintiff will not be permitted to put on their case.

SurgeryThere are, however, certain exceptions to statutes of limitations that can prevent the time from accruing. One of these is the “continuing course of treatment” doctrine, which tolls the statute of limitations in a medical malpractice case while the allegedly negligent medical provider is still providing medical care to the plaintiff after the alleged act of negligence. A recent case illustrates this concept.

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Florida courts are accustomed to dealing with large amounts of cases, and while many of these cases present actual injured parties deserving of compensation, courts are always on the look-out for frivolous cases. This is true across all aspects of the law, but perhaps nowhere more true than in the context of medical malpractice cases. In fact, the Florida legislature has created specific procedural requirements that apply only to medical malpractice cases in hopes of whittling down the number of cases each year.

StethescopeWhether right or wrong, the reality is that medical malpractice plaintiffs must be extremely cautious about how they proceed with their case. One procedural misstep could result in an otherwise meritorious case getting dismissed. In fact, that is exactly what happened to one family who filed a medical malpractice case against a hospital in Texas.

Christus Health Gulf Coast v. Carswell:  The Facts

The Carswell family lost their loved one while he was in the care of the defendant hospital back in 2004. In the wake of the tragedy, the family filed several wrongful death claims, alleging that facility’s medical negligence and seeking compensation as a result. However, about three years after the initial case was filed, the family added additional claims, alleging that the hospital staff fraudulently obtained consent for a private autopsy.

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doctors clothes 2The idea of “separation of powers” is a basic component of the American legal system. The legislative branch passes laws, the executive branch enforces those laws, and, when necessary, the judicial branch interprets the laws.

In the recent case of North Broward Hospital District v. Kalitan, the District Court of Appeal for the Fourth District of Florida was asked to determine whether a previous ruling of the Florida Supreme Court concerning the constitutionality of a cap on damages was applicable to a particular medical malpractice suit.

The previous case, Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), held that Florida Statutes § 766.118, which purported to limit noneconomic damages awards in wrongful death cases arising from an act of medical negligence, was unconstitutional under the Florida Constitution.

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clock3One of the most important considerations in any lawsuit is the statute of limitations, the period that the law allows for filing suit. Failure to file suit within the time afforded by the limitations period usually means that there can be no recovery, regardless of the merits of the action.

That said, there are a few, limited exceptions to the general requirements of the statute of limitations. While it is always best to err on the side of caution and file sooner rather than later, the exceptions can come in very handy in some cases.

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Biologist preparing cryopreserved samples for IVF

Generally, there are two types of damages available in personal injury cases:  economic damages and noneconomic damages. Economic damages compensate an injured person for things like lost wages, property damage, and medical expenses. Noneconomic damages provide remediation for pain and suffering, loss of consortium, and similar losses.

Several years ago, the Florida legislature passed a statute that placed a cap on noneconomic damages in medical malpractice cases. Recently, the statute supreme court was called upon to determine whether the cap could be applied retroactively.

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LawThe settlement of lawsuits is encouraged under Florida law, so much so that the so-called “Florida Settlement Rule” states that a party who refuses a settlement offer can be held liable for the attorney fees and costs incurred by the maker of the offer if the maker is successful at trial. Of course, there are many stipulations that come with the rule, and the issue of whether or not the rule was complied with is a frequent source of litigation in and of itself.

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Safety Idea before Child Birth

Pregnancy can be a long and stressful process for most women. When it comes delivery time, men and women included can become overwhelmed with both excitement and concern. Bringing a new life into the world is a wonderful miracle and is often one of the most beautiful, natural occurrences known to humanity.

However, giving birth certainly doesn’t come without its concerns and worry for expectant parents. Sometimes a safe delivery can sometimes bring more stress than happiness, especially if malpractice exists during delivery. Paying attention to several important details can help ensure a safe delivery for the child and fewer concerns for parents.

Prepare a Birth Plan

Having a birth plan is a great way to ensure that parents take the time to go through the details, potential hazards, and steps to ensure a healthy and safe delivery. While some situations do arise that can cause a change in a birth plan, such as an emergency c-section, having a birth plan to stick to can help guide parents and their doctor through a safe delivery process.

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As an Aventura medical malpractice attorney, I was very interested in a report on a claim filed by the widow of a man who fell seriously ill after surgery at the Mayo Clinic Florida. According to a Nov. 9 article from First Coast News, Peggy Wolford of Stuart is suing the clinic for medical malpractice leading to the wrongful death of her husband, Dennis Wolford, in 2008. Dennis Wolford received two liver transplants at the clinic, in 2006 and 2008, but was allegedly infected with hepatitis C while a patient there. Peggy Wolford’s suit claims the most likely source of the infection was an employee at the clinic who was fired and criminally charged for stealing patients’ IV drips of a painkiller in order to get high. Peggy Wolford’s suit says the medical expenses related to the transplants and infections have cost her the couple’s home and forced her to declare bankruptcy.

The clinic made news in August when it released a press release saying an employee had caused a hepatitis C outbreak. Steven Beumel, 47, was a radiation technician at the clinic before he was arrested for stealing drugs to feed his painkiller addiction. He is accused of injecting himself with Fentanyl, a painkiller, intended for patients undergoing invasive procedures. After he was done, he would allegedly replace the drug with plain saline solution, but re-use the needle he had used on himself — exposing patients to anything he had in his system and depriving them of the painkiller. A report from September says at least three people were believed infected with hepatitis C, and at least two have died. Wolford’s lawsuit alleges that her husband died from hepatitis C acquired at the clinic, almost certainly from Beumel.

As a Davie medical malpractice lawyer, I suspect Peggy Wolford will have a strong case. The hepatitis C outbreak at the Mayo Clinic Florida was an important story for the local press at the time, and one report suggested that the clinic and health authorities knew about the outbreak long before they figured out where it came from. Affected families can reasonably argue that the clinic failed to supervise Beumel or take as much corrective action as the situation required. In most situations, employers are legally responsible for the actions of their employees while at work, and for supervising those employees adequately. Dennis Wolford’s situation was particularly horrifying because hepatitis attacks the liver, and Wolford was in the clinic to receive a liver transplant. In that situation, the clinic would have a special duty to prevent anything that weakens the liver and immune system further.

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