Posts filed under 'Medical Malpractice'
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)
April 30th, 2012
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)
April 30th, 2012
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)
April 30th, 2012
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.
December 12th, 2011
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).
October 24th, 2011
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).
October 5th, 2011
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).
September 1st, 2011
The Eleventh Circuit Federal Court of Appeals recently addressed the constitutionality of Florida’s statutory cap on non-economic damages in medical malpractice cases. Fla. Stat. § 766.118.
The Eleventh Circuit affirmed the district court’s application of Florida’s statutory cap and concluded that there was no violation of the Equal Protection Clause of the US Constitution under a rational basis standard.
The Eleventh Circuit further held that the statutory cap did not violate the Takings Clause of either the Florida or the US Constitutions, because the Court found that the plaintiffs were not deprived of vested property rights, and, therefore, no Takings Clause concerns arose.
Nevertheless, the Court granted the plaintiffs’ motion to certify questions to the Florida Supreme Court regarding the plaintiffs’ remaining challenges to the cap under Florida constitutional law.
The Eleventh Circuit certified the following questions to the Florida Supreme Court:
- Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution?
- Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right of access to the courts under Article I, Section 21 of the Florida Constitution?
- Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the right to trial by jury under Article I, Section 22 of the Florida Constitution?
- Does the statutory cap on noneconomic damages, Fla. Stat. § 766.118, violate the separation of powers guaranteed by Article II, Section 3 and Article V, Section 1 of the Florida Constitution?
Estate of Michelle Evette McCall v. USA, __ F.3d __ (09-16375) (11th Cir. 2011).
June 2nd, 2011
The first DCA recently ruled that a settlement proposal in a medical malpractice case was invalid, because it was conditioned upon joint acceptance by both plaintiffs.
After receiving a defense verdict, the defendants at issue successfully sought costs and attorneys’ fees from the trial court, pursuant to Florida’s Offer of Judgment Statute, Section 768.79(1), Fla. Statutes. Section 768.79(1) provides that a defendant is entitled to recover fees and costs where the defendant has offered a settlement amount that is rejected by the plaintiff, and the defendant is subsequently found not liable, or found liable for an amount that is at least 25 percent less than the defendant’s settlement offer.
In the case at issue, the terms of the settlement proposal stated the specific amounts that each party would receive, and there was no specific language stating that either plaintiff could not accept the settlement without the co-plaintiff joining. As such, the defendants argued that the plaintiffs were able to independently evaluate the settlement offer and had adequate notice that they could settle their claims individually.
The First DCA disagreed. The Court noted that, while the language of the proposal was not as “direct” in its language requiring mutual agreement, the proposal did contain language stating that, “If this Proposal for Settlement is not accepted in writing in thirty (30) days of service, it shall be deemed rejected by the Plaintiffs.” The Court held that this language was sufficient to create a requirement of joint acceptance. Citing the Florida Supreme Court decision of Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So.3d 646 (Fla. 2010), the First DCA held that, “a settlement offer conditioned on joint acceptance … is the antithesis of a differentiated offer,” and concluded that the Gorka decision effectively eliminates the ability to make joint offers in Florida. Schantz v. Sekine, 2011 Fla. App. LEXIS 3892 (Fla. 1st DCA March 22, 2011).
March 28th, 2011
The Fourth DCA recently reversed a trial court’s order granting summary judgment for a defendant hospital in a medical malpractice action. In so doing, the appellate court held that it was error to grant the hospital’s motion for summary judgment, where the hospital failed to establish that there was no issue of fact regarding causation. The Court noted that the trial court had apparently misplaced the burden upon the plaintiff by equating the plaintiff’s burden in a summary judgment motion to that which would be required to overcome a motion for directed verdict at trial. The Court held that summary judgment is only appropriate where the record affirmatively shows that the plaintiff cannot possibly prove his/her case, and concluded that the fact that the plaintiff has simply failed to come forward with sufficient evidence to prove his/her case is not grounds for summary judgment.
The Fourth DCA further noted that it was remanding the case in order to allow the trial court to reconsider the plaintiff’s motion to amend to add a claim for punitive damages. The Court noted that it appeared that the trial court had decided the motion, not on its merits, but on the fact that the motion was untimely, in that the plaintiff had apparently filed its motion to amend for punitive damages only four days before trial. Webster v. Martin Memorial Medical Center, 2011 Fla. App. LEXIS 2656 (Fla. 4th DCA 2011).
March 21st, 2011
