Posts filed under 'Medical Malpractice'
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
The 2nd District Court of Appeals recently addressed the adequacy of medical provider notice regarding the Neurological Injury Compensation Plan, where some, but not all, medical providers have complied with statutory notice requirements.
The Glenn family filed suit seeking damages for severe injuries suffered by their newborn daughter. They sued and settled with the obstetrician and Bayfront Hospital, the hospital in which the child was born. The lawsuit proceeded against the remaining defendant, All Children’s Hospital, the employer of the neonatal nurses who attended the infant after her birth.
All Children’s Hospital claimed that it was immune from tort liability under the Florida Birth-Related Neurological Injury Compensation Act (“NICA”), and that the plaintiffs’ only remedy was to pursue a claim against the Florida Birth-Related Neurological Injury Compensation Plan. The plaintiffs countered that they had not been provided with sufficient notice, such that NICA immunity was not appropriate.
An administrative law judge held that NICA requirements provide that all medical providers involved in an event must comply with the statutory notice requirements, or else none of them enjoy immunity from tort liability. The 2nd DCA took the opposite position and held that notice by a single provider was sufficient to immunize all from tort liability.
The Florida Supreme Court quashed that 2nd DCA opinion and held that a provider who has given the required notice is shielded from tort liability, while those that have not are not. The Court held that if one of several providers has failed to give required notice, the plaintiff may choose to 1) accept NICA remedies and forgo any tort action against any provider involved in the delivery, or 2) pursue a tort action only against the provider who failed to give the notice and forgo any NICA remedies altogether.
Based upon this ruling, the lower court determined that the Glenn’s could not sue All Children’s Hospital in tort for a NICA-compensable injury, because that hospital did not fail to give required notice.
The Supreme Court subsequently remanded for further consideration two issues raised by the plaintiffs: Whether Bayfront Hospital’s failure to provide notice could be imputed to All Children’s Hospital because it is an agent of Bayfront; and whether All Children’s Hospital should be liable in tort because the injuries to the infant did not occur during labor, delivery, or immediate post-resuscitative efforts.
The 2nd DCA ruled that the agency theory had not been raised in the proceedings below, and therefore was not appropriately raised on appeal. The Court nevertheless reversed and remanded to allow for examination as to whether the injuries were compensable under NICA. All Children’s Hospital v. Glenn, 2011 Fla. App. LEXIS 1987 (Fla. 2nd DCA February 18, 2011).
February 23rd, 2011
Researchers at the University of California School of Medicine recently released the findings of a study that indicate that babies born at night may be at greater risk of developing neonatal encephalopathy, a rare brain condition that can lead to epilepsy, cerebral palsy, or death. The researchers looked at almost 2 million California births over a 14-year period and found that newborns delivered between 10 pm and 4 am had a 22% increased risk of the brain condition.
Although the researchers admit that very little is known about the causes of neonatal encephalopathy, they note that “investigators have suggested that the level of medical care may decrease during the night, producing a ‘circadian rhythm of quality of care.’ That is, both fatigue, and decreased staffing during the night could potentially have a negative impact on level of care. In some instances, senior and highly experienced physicians may be less available during the night, also having a potential impact on quality of care.” This theory is further supported by the study’s findings that an increased risk of neonatal encephalopathy was also found in rural and teaching hospitals as compared to non-rural and non-teaching hospitals.
The researchers note that the brain condition currently afflicts more than 10,000 newborns in the United States each year and suggest further study to determine its cause.
Nighttime Delivery and Risk of Neonatal Encephalopathy, American Journal of Obstetrics and Gynecology, Volume 204, Issue 1 , Pages 37.e1-37.e6, January 2011.
January 7th, 2011
The Hawaii Supreme Court recently heard oral arguments on the constitutional validity of the state’s cap on medical malpractice damages. The cap, which applies to most tort cases, provides that “physical pain and suffering” damages in Hawaii are limited to $375,000.
The case at issue involved a 14 year old girl who alleged that a doctor had given her high-dose steroid treatments, not commonly accepted in the medical community, which had resulted in her myopathy, and left her unable to breathe, eat, or speak on her own for months. The plaintiff is now permanently disabled and will never walk again.
At trial, the jury awarded $2 million for “pain and suffering”. The trial court reduced that amount to the $375,000 permitted by the statute, although the judge did acknowledge that it was not clear if any of the money awarded was compensation for emotional distress. Both parties appealed, and the Hawaii Supreme Court agreed to take the case directly.
At oral argument, the plaintiff asserted that the cap was unconstitutional because it usurps the power of the jury and otherwise violates the separation of powers and the rights to due process and equal protection. Plaintiff argued that the cap “…treats the most severely injured victims differently than those victims with less serious injuries,” as only the latter are fully compensated.
Plaintiff’s counsel expressed his hope that the Hawaii court will strike down the cap, and that other states will follow. He added that such decisions will send the message to legislatures that damages caps are not an effective means of addressing the problems they are trying to solve. Ray v. Kapiolani Med. Specialists, No. 29988 (Haw. October 21, 2010).
November 12th, 2010
On October 13, 2010, Florida’s Third District Court of Appeals, in Deno v. Lifemark Hospital of Florida, No. 3D09-984 (Fla. 3d DCA 2010), upheld the ruling of an arbitration panel, holding that the relevant statutory cap on non-economic damages in medical negligence cases allows victims to receive up to $250,000 per claimant, but not per defendant.
The issue arose out of a lawsuit in which the estate and survivors of William S. Deno sued a hospital and an individual doctor, claiming that medical negligence in performing a heart procedure had resulted in Deno’s death. The two defendants separately agreed to voluntary arbitration, as did the estate. Thereafter, the arbitration proceedings against the hospital and physician were consolidated into one.
The arbitration panel awarded each claimant $250,000, determining that this conclusion was consistent with the statutory cap limiting non-economic damages to $250,000 per incident. The estate appealed, arguing that the statutory limit should be interpreted to allow for $250,000 per claimant per defendant.
In affirming the decision of the arbitration panel, the Third DCA held that the panel’s decision was consistent with the statute and statutory scheme. The Court explained that the statutory interpretation proposed by the estate was “inconsistent with the idea of a uniform cap,” as the amount of non-economic damages would fluctuate depending on the number of defendants in a case.
Florida lawyers have expressed their disappointment in the ruling. They warn that plaintiffs no longer have any incentive to opt for arbitration, particularly in cases involving multiple defendants.
October 19th, 2010