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Posts filed under 'Medical Malpractice'

Florida’s 90 Day Tolling Period in Medical Malpractice Actions for “Potential Defendants”

Florida’s medical mcalendaralpractice law is very complicated as there are many procedural requirements set forth in Chapter 766 of the Florida Statutes. If these rules are not strictly followed, the court may strike pleadings and, in a worst case scenario, a potential lawsuit may subsequently be barred by the applicable statute of limitations.

An early stage in any medical malpractice action is a process called “pre-suit.”  During pre-suit, one of the statutory requirements is that you put potential defendants on notice of your intention to initiate litigation.  No lawsuit can be filed for a period of 90 days, and during this 90 days, the statute of limitations is tolled.  (This tolling period can be further extended an additional 90 days by filing an extension of the statute of limitations.)  When the pre-suit 90 day period is completed, the claimant can file a medical malpractice lawsuit within either the remainder of the original statute of limitations period, or 60 days, whichever is greater.

Although this process seems relatively straightforward, there have been disputes over the precise meaning of the statute and how the tolling periods applies.  It is clear from Section 766.106(3)(a) that the statute of limitations is tolled for 90 days for potential defendants who have been served with the notice of intent; however, an issue arises as to whether this tolling period also applies to defendants who have not been served with a notice to intent to sue.

Recently, the Third District Court of Appeal issued a ruling answering this question. Salazar v. Coello, 2014 WL 7156859 (3rd DCA 2014).  The Court held that Section 766.106(3)(a) tolls the statute of limitations for all likely defendants, even if they were not served with a notice of intent to initiate litigation.  Id.  The Court undertook an extensive review of the Florida Statutes and concluded that the Florida Legislature intended that the statute of limitations is tolled as to any defendant, even those who were not originally served with a notice of intent.  Id.  The Court further reasoned that the Florida Legislature did not intend for there to be any difference between the terms “prospective defendant” and “potential defendant” that are used in the statute.  Id.

This is an important ruling because, as in the Salazar case, if the statute of limitations was not tolled during this 90 day period, the notice of intent would have been filed after the expiration of the statute of limitations, and consequently, any subsequent pleadings would likely have been stricken.  Thus, the Plaintiff ultimately would not have been able to hold a potentially negligent party accountable for medical negligence.

Add comment January 23rd, 2015

Federal Court Allows Cruise Line to be Sued for Medical Malpractice

rci_rd_exterior_1On November 10th 2014, the Eleventh Circuit overturned the long-standing rule that cruise lines could not be sued for medical malpractice.  In Franza v. Royal Caribbean Cruises, 2014 WL 5802293 (11th Cir. 2014), the Eleventh Circuit allowed a Plaintiff to sue a cruise line for the alleged medical negligence of the onboard ship doctor and nurse.  This is a remarkable ruling because, since 1988, both federal and state courts have held that parties were not allowed to sue cruise lines for the medical negligence of its ship doctors and nurses.  The long standing rule was adopted by the Fifth Circuit in Barbetta v. S/S Bermuda Star, 848 F. 2d 1364 (5th Cir. 1988), which held that cruise lines could not be vicariously liable for the negligence of its ship doctors or nurses because it could not exercise the required “control” over these individuals.

In Franza, the Eleventh Circuit declined to adopt the Barbetta rule and allowed the Plaintiff to sue Royal Caribbean Cruises for the alleged medical negligence of its ship doctor and nurse.  The Court reasoned that, since 1988, the world of maritime commerce has changed immensely.  Modern legal norms, the complexity of the cruise industry, and modern technology abolished whatever value the Barbetta rule once had.  The Court held that, “we now confront state-of-the-art cruise ships that house thousands of people and operate as floating cities, complete with well-stocked modern infirmaries and urgent care centers.”

This ruling is important for several reasons.  First, this decision is groundbreaking in its field because it opens up a new venue for medical malpractice lawsuits against cruise ships.  Additionally, this ruling poses a potentially game-changing problem for cruise lines.  Some cruise lines have actually required its passengers to agree to forum selection clauses indicating the United States District Court for the Southern District of Florida as the only court with jurisdiction.  Presumably one of the reasons behind this decision was to avoid putative lawsuits for medical malpractice of ship doctors and nurses.  As such, this ruling is a victory for cruise line passengers who seek to hold ship doctors and nurses responsible for negligent medical treatment and care.  There is now a conflict among the Circuit Courts, and since there is no binding Supreme Court ruling on this issue, there will likely be future litigation on this topic.

Add comment November 24th, 2014

If an action “arises out of medical diagnosis, treatment, or care” you must follow pre-suit requirements

GurneyRecently, in Buck v. Columbia Hospital Corp. of South Broward, Case No. 4D13-2165 (Fla. 4th DCA) (September 10, 2014), the Fourth DCA affirmed the dismissal of a complaint for failing to comply with the pre-suit requirements of Chapter 766 of the Florida Statutes. The issue was whether this cause of action was ordinary negligence or medical negligence.  This distinction is essential because when there is medical negligence, you are required to follow the pre-suit requirements set forth in Chapter 766.  Failure to comply these requirements may result in a dismissal of the complaint.  Unfortunately, this is exactly what happened in this case.

In Buck, the Plaintiff alleged that while the decedent was being transported from a gurney to an x-ray table at a hospital, hospital employees dropped her onto an x-ray table causing a lumbar spine fracture.  Buck alleges that this eventually caused the decedent’s death. The hospital moved to dismiss the complaint for failing to comply with pre-suit requirements and the trial court granted the motion.  The Fourth DCA affirmed this decision.

The Fourth held that a claim for negligence is subject to the pre-suit requirements of Chapter 766 if, “the wrongful act is directly related to the improper application of medical services and the use of professional judgment or skill.” The Court further reasoned that, “[w]hen determining whether a complaint alleges a cause of action in medical negligence versus simple negligence, the key inquiry is whether the action arises out of medical diagnosis, treatment, or care.”  The Court held that the Plaintiff’s cause of action alleged medical negligence because hospital employees were engaged in the “rendering” of medical care and services when they lifted the decedent from the transport gurney and placed her on the x-ray table as part of a medical procedure.

This case illustrates that it is absolutely essential to hire knowledgeable, experienced, and skilled medical malpractice attorneys when dealing with matters involving medical negligence. If Buck had complied with the pre-suit requirements of Chapter 766, it is likely that the complaint would not have been dismissed.

Add comment October 22nd, 2014

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

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