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New Article Documents High Rates of PTSD in Former ICU Patients

When most people think of post-traumatic stress disorder (PTSD) they imagine a soldier returning home to civilian life after witnessing the atrocities of war in a far-away foreign locale. However, a recent article in the New York Times on July 22, 2013 entitled “Nightmares After the I.C.U.” introduces a form of PTSD that has been largely unidentified and untreated: PTSD that occurs as a result of hospital stays in an intensive care unit. The article states that “[a]nnually, about five million patients stay in an intensive care unit in the United States. Studies show that up to 35 percent may have symptoms of PTSD for as long as two years after that experience, particularly if they had a prolong stay due to a critical illness with severe infection or respiratory failure.”
The type of PTSD that occurs in patients is different from other forms of PTSD in that the patients often have vivid memories of events that did not occur. While a soldier may have flashbacks of a friend wounded by gunfire, a patient may recall torture and gruesome events that did not take place but nonetheless appears to be very real to them. The article reveals that researchers have begun to identify sedation as the source of some of the most debilitating flashbacks that former patients experience. Researchers are now finding that a certain class of drugs called benzodiazepines not only cause amnesia, which is often seen as desirable for patients experiencing traumatic events like having a ventilator in place, may lay the foundation for PTSD during recovery.
Treatment for these patients poses unique challenges because their fears and flashbacks relate to medical treatment and it can be difficult to persuade them to seek further medical attention for PTSD.
It is important that patients and their families recognize that not only will people who have been in an I.C.U. have a long journey to recovery physically; they may very well have a long path to psychological healing as well.

Add comment August 14th, 2013

Avoiding Readmission and The Importance of Discharge Instructions

When patients are discharged from a stay in the hospital the last thing on their mind is coming back for another stay. However, an article entitled “At Too Many Hospitals, a Revolving Door” from the New York Times paints a very different picture. The article outlines a recent study in the New England Journal of Medicine that found that nearly one in five older adults discharged from a hospital returns within thirty days. While not all readmissions can be avoided “a substantial proportion of readmissions could be prevented if hospitals did more to educate patients, ensure they’re able to care for themselves, and coordinate their care with other medical providers.” With hospitals beginning discharge planning upon admission to comply with the Joint Commission Standard, family members and patients are often given information about discharge days before actual discharge takes place. When discharge instructions are given to patients, health care providers sometimes assume that this information will be recalled days later when the patient is sent home, even when, at times, it is conveyed when patients are recovering from surgery and have difficulty concentrating.
The article list several suggestions for making sure that patients who are discharged do not end up being readmitted because of a failure in communicating adequate discharge instructions. It is important for patients and their caregivers to ask questions “[f]eel free to stop the person handling your discharge and say ‘wait, slow down, I don’t really understand how I’m going to get along day to day and how all this is going to work.”’
It is the responsibility of health care providers to adequately explain discharge instructions and communicate clearly and effectively with patients. When this obligation is taken seriously it can go a long way in helping to ensure that the patient that is being discharged on Friday will not be readmitted on Monday.

Add comment August 14th, 2013

Medically Stable or not? It’s a jury question!

Medically Stable or not: It’s a jury question!
The First District Court of Appeal, on June 21, 2012, held in University of Florida v. Marguerite Stone, as Personal Representative of the Estate of Ronald Stone, that the Good Samaritan Act, found at Florida Statute 768.13 (2003), is in most cases a factual dispute left to the auspices of the jury to decide.
The lower court determined the Good Samaritan Act did not apply and granted Appellee’s motion for directed verdict as to the inapplicability of the heightened standard of proof required under the Act, which is reckless disregard.
Stone presented at 12:45pm to the Emergency Room at the University of Florida Medical Center for severe stomach pain and vomiting. He received IV fluids and various tests. It was determined he would need surgical intervention thus a transfer was ordered to Alachua General Hospital. In preparation of same, it was determined he should have a CT scan first because it would be faster than obtaining one at the subsequent hospital. The CT scan indicated a severe problem existed such that the radiologist noted that it was “worrisome for gastric outlet obstruction” a condition which is serious and can be life threatening. Despite this diagnosis, the subsequent hospital who received the patient at 6:30pm, placed the patient on the surgical floor and sought surgical consult for the next morning. Stone went into cardiac arrest at 11:39pm and was transferred to the ICU where he died the following morning at 9:00am after arresting a second time.
In Stone, the determinative issue was whether, at the time the care was provided to Mr. Stone, at Alachua General Hospital, he was stabilized and capable of receiving medical treatment as a nonemergency patient. If so, the heightened standard of proof (reckless disregard) in the Good Samaritan Act does not apply; if not, the Act applies.

Add comment June 26th, 2012

An Unverified Expert Opinion is Not Enough

As we know, courts will look for every opportunity to allow a litigant to have their day in court but they will not do so when every opportunity is available to follow the statutory procedures within the statute of limitations period.

In a recent opinion out of the Fourth District Court of Appeal, the court recognized that a plaintiff used a letter authored by a medical expert as their presuit opinion but that the letter, being unverified, was nothing more than that-a letter. The letter did not suffice as an expert opinion when suit was filed because it failed to be a “verified written expert opinion.”  The Plaintiff had every opportunity to convert the letter by verifying it within the requirements of Chapter 766,  but failed to do so before the expiration of the statute of limitations for a medical malpractice action. This left the court with little to do but dismiss the case with prejudice for failing to provide a properly verified corroborating expert opinion prior to the expiration of the statute of limitations.


Berry v. Padden, et al, 37 Fla. L. Weekly D743a (4th DCA, March 28, 2012)


Add comment April 30th, 2012

New Trial Granted for Defense Counsel Improper Conduct

In an interesting turn of events, the Second District Court of Appeal turned the tables on an earlier opinion
after consideration of the remand by the Florida Supreme Court on the issue of
whether improper conduct on the part of defense counsel during trial, some of
which on the record and some not, should be enough to grant a new trial.

The jury returned a verdict in favor of the Defendant which prompted the Plaintiff-Estate to file a motion for
new trial based on improper conduct of the defense counsel. The Estate erred in
not moving for the mistrial during the course of the trial.

The court noted “the trial transcript reflects contentious and raucous 5-day jury trial, fraught with
objections and bench conferences.” The actions of Defense counsel caused
Plaintiff to make numerous objections which lead to the Estate risking the
alienation of the jury or causing the jury to infer that one side of the case
is trying to hide or disguise matters that would be useful to the jury.

The trial judge noted during the hearing on the motion for new trial that she was gravely concerned over the actions of Defense
counsel which lead to a swift motion for recusal of the trial judge by the
Defense who actually witnessed the behavior. The trial judge was then recused
leaving a subsequent judge to try and evaluate what occurred during the trial.

The court determined that the counsel’s conduct can be said to have “gravely impaired a fair consideration
and determination of the case by the jury.” They further determined the conduct
was incurable. The court noted “we cannot condone the practice of counsel engaging
in overly zealous representation amounting to misconduct and then reaping the
benefit of recusing the judge who was in the best position possible to assess
the effect of that misconduct on the fairness of the trial.”

The resulting moral to the story….seek a mistrial during the course of the trial and be sure that all conduct is on
the record!

Sullivan v. Mark David Kanarek, MD, et al, 37 Fla. L. Weekly D439 (2d DCA, Feb. 17, 2012)



Add comment April 30th, 2012

Presuit Notice to Dr. is Sufficient to Impute Knowledge to Hospital Where a Legal Relationship Exists

NOTICE IS NOTICE, don’t ignore the words “Agents, Employees, and Apparent Agents”:
The intended Plaintiff sent presuit notice of intent to sue to the physician and his group alleging malpractice by this doctor and his group while caring for the Plaintiff at the hospital. Such notice included the doctors “agents, employees, and apparent agents”. Presuit was denied by the Intended Defendants. Later Plaintiff prepared her complaint alleging vicarious responsibility of the Hospital for the actions of the physician as the entities were a joint venture, to which the hospital moved for, and was granted, a dismissal for Plaintiff failure to presuit the hospital. The Third District Court of Appeal, in April 2011, reversed noting that dismissal was premature because presuit notice to the doctor was sufficient to impute notice to the hospital. Under the complaint and the joint venture agreement, Plaintiff demonstrated a legal relationship between the doctor and hospital.
Citing the Florida Supreme Court’s holding in Kukral v. Mekras, 679 So. 2d 278 (Fla. 1996) and followed by Arch Plaza, Inc. v. Perpall, 947 So.22d 476 (Fla. 3d DCA 2007), “Florida courts have consistently construed the medical malpractice pre-suit statutory scheme ‘liberally so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts’.”
Melissa Ann King v. Baptist Hospital of Miami, Inc. et al, 37 Fla. L. Weekly D830 (3rd DCA, April 11, 2011)

Add comment April 30th, 2012

Hospitals Hampering Florida’s Right To Know Amendment

The Miami Herald recently reported that Florida hospitals are finding ways to hamper patients’ access to medical records as provided in the voter-approved provision of the Florida Constitution.

Seven years ago, Florida voters overwhelmingly approved a Constitutional amendment that allows patients access to hospital records of adverse incidents involving medical procedure errors and poor care.  According the Herald, “[t]he Patient’s Right to Know Act was hailed as a major victory for individuals seeking to know more about their hospitals and doctors.  But it hasn’t always worked out that way.”  

The Herald highlights the recent case of Harlan Ginsberg, who presented to Margate’s Northwest Medical Center in 2006 complaining of kidney stones.  Mr. Ginsberg alleged that the physician who performed the surgery to remove the stone mistakenly cut a tube that delivered urine to his bladder and removed a kidney that another physician testified was healthy.

As part of the litigation, Ginsberg’s attorney requested records of other adverse incidents, as permitted by the Constitutional amendment.  The Hospital first refused to release the records, and then said that it would only produce the records if Ginsberg would pay $77,550 in advance for their release.  The Hospital alleged that such administrative costs were warranted due to the many hours needed to compile the requested records.

Ginsberg’s attorney filed a motion with the Court to compel the records, but did not get a ruling.  He withdrew the motion to expedite trial.  Thereafter, the plaintiff lost the case before the jury.

The case has caught the attention of the Florida First Amendment Foundation.  The Foundation’s President has said that hefty fees such as those imposed in the Ginsberg case are “ridiculous” and “amount to an effective denial of access.”

Ginsberg’s attorney is considering an appeal.

Add comment December 12th, 2011

5th DCA Says No Presuit Needed Against Psychiatric Facility

The Fifth District Court of Appeal recently reversed a final summary judgment entered in favor of a psychiatric facility, finding that the plaintiff had no obligation to engage in the presuit normally required in medical malpractice cases.

James Joseph, a former patient of University Behavioral Center (“UBC”), filed suit against the psychiatric facility after he was allegedly punched by another patient.  The attack caused Joseph to suffer a detached retina and, eventually, the loss of his left eye.  L.F., the individual who threw the punch, was a fellow patient at UBC.  Joseph alleged that, prior to the attack, L.F. had bullied and punched him on numerous prior occasions, causing Joseph to ask UBC to separate the two.  UBC refused.  Joseph alleged that UBC was negligent in failing to protect him.

UBC filed a motion for summary judgment contending that Joseph’s claim was for medical negligence, and that Joseph had failed to comply with the presuit requirements of Florida’s Medical Malpractice Act, including the two-year statute of limitations.  The trial court agreed and granted UBC’s motion.  Joseph appealed, contending that his claim was for ordinary negligence.  The 5th DCA agreed with Joseph and reversed.

In reversing the summary judgment, the Court held that the claim did not arise “out of the rendering of medical care by licensed health care providers subject to the prevailing professional standard of care,” and stated that “the fact that a wrongful act occurs in a medical setting does not necessarily mean that it involves medical practice.”

Joseph v. University Behavioral LLC., et. al., __ So.3d ___ (Fla. 5th DCA 2011).

Add comment October 24th, 2011

Public Health Trust Is Not Immune From Suit Through Sovereign Immunity Or Florida’s Good Samaritan Act

Last week, the Third District Court of Appeal denied a petition for certiorari filed by The Public Health Trust of Miami-Dade County.   The appeal stemmed from a trial order denying the Trust’s motion for summary judgment on its defense of sovereign immunity and the Trust’s motion for judgment on the pleadings, alleging it was immune from suit under Florida’s Good Samaritan Act.

The underlying suit involved allegations of negligence in the quadruple amputation of a three year old girl.   The Plaintiffs claim that physicians and staff failed to act quickly enough- in the first hour and a half or more of the young girl’s arrival at the hospital- to provide her with appropriate fluids and antibiotics, which they contend would have avoided the need for the amputations.

The Trust filed a motion for summary judgment, because one of the other named state hospital defendants had previously settled the case against it for $200,000. The Trust argued that, because $200,000 is the statutory cap under Fla. Stat. 768.28(5), it had sovereign immunity, to the extent that it could be found liable to pay any additional damages.

The Third DCA rejected this contention, holding that the trial court was correct in denying summary judgment as to this issue.   The Court explained that it is “by no means certain at this time that the Trust’s alleged negligence ‘arose out of the same incident or occurrence’ as did the [claim against the other state entity] now settled.”  The Third DCA further explained that, even if the Plaintiffs had been paid the maximum statutory amount permitted under the statute, “the trial court still has jurisdiction to enter a judgment against the Trust for purposes of supporting a potential claims bill to the legislature.” 

The Third DCA found the Trust’s other argument likewise unavailing.  The Trust sought review of the trial court’s denial of its judgment on the pleadings, due its assertion that it was immune from suit under Florida’s Good Samaritan Act, Fla. Stat. 768.13 (2004).  This statute provides that hospitals shall not be held liable for civil damages as a result of emergency medical care, unless such treatment demonstrates “a reckless disregard for the consequences so as to affect the life or health of another.”  Rejecting the use of the Act to invoke sovereign immunity, the Court held that the Good Samaritan Act may provide the Trust with a defense from liability, but it does not provide it sovereign immunity from suit.

The Public Health Trust of Miami-Dade County v. Shaniah Rolle, et. al., ___ So.3d____ (Fla. 3d DCA 2011).

Add comment October 5th, 2011

Medical Incident Reports Not Protected As Work Product

The Third DCA recently addressed whether a healthcare facility’s adverse medical incident reports are protected as attorney work product. In a unanimous opinion, the Court held that the work product privilege does not extend to comments and findings of hospital personnel routinely contained in adverse medical incident reports.

In reaching this decision, the court compared the petitioners’ constitutional right under Amendment 7, titled “Patients’ right to know about adverse medical incidents,” to the attorney work product protection afforded by Rule 1.280(b)(3), Florida Rules of Civil Procedure.

The fact work product privilege protects information which relates to the case and is gathered in anticipation of litigation. Opinion work product privilege protects an attorney’s mental impressions, conclusions, opinions, and theories concerning litigation. Unlike the opinion work product protection, fact work product is not entitled to absolute protection. Because Amendment 7 abrogates any fact work product privilege, the Court’s decision turned on whether adverse medical incident reports were protected as opinion work product. Relying on a Second DCA case, the Court held that, despite being prepared in anticipation of litigation, the petitioners had a right to the documents in question. Acevedo v. Doctors Hosp., Inc., 2011 WL 3586185 (Fla.3d DCA 2011).

Add comment September 1st, 2011

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