Professional Malpractice

Medical Malpractice Damage Caps May Soon Be Eliminated

December 12, 2016 | Associates and Bruce L. Scheiner

There are now two Florida appellate courts – including the one that oversees courts in Fort Myers – that have ruled in favor of eliminating medical malpractice damage caps of non-economic damages in personal injury lawsuits. That means we could be very close to seeing the elimination of damage caps in all medical malpractice lawsuits in the state. The most recent ruling was handed down by Florida’s 2nd District Court of Appeal in Port Charlotte HMA v. Suarez.

The Florida Supreme Court was already considering an earlier ruling to this same effect made by Florida’s 4th District Court of Appeal in North Broward Hospital v. Kalitan. Both rulings cite precedent set by the Florida’s Supreme Court’s 2014 opinion in McCall v. U.S., which struck down medical malpractice damage caps in wrongful death cases, finding them unconstitutional. But McCall, which invoked the constitutional right to equal protection, applied only to those cases in which the patient had died. Surviving patients are still subject to damage caps, which were approved by then-Gov. Jeb Bush, who sided with lawmakers citing a “medical malpractice crisis.” It was asserted such caps were needed to stem the tide of doctors fleeing the state due to hefty medical malpractice payouts. The state supreme court conducted its own analysis and found these and other claims upon which the law was enacted were simply untrue (the number of doctors in Florida was actually increasing during this time and there was no evidence of frivolous lawsuits or excessive verdicts).

Other states, including Illinois and New Hampshire, have previously struck down damage caps in medical malpractice lawsuits. Continue reading ›

Cefaratti v. Aranow – Surgical Sponge Left in Patient Prompts Injury Lawsuit

June 10, 2016 | Associates and Bruce L. Scheiner

In 2013, USA Today published a startling statistic: Twelve times every single day, surgeons sew up a patient with surgical sponges and other supplies mistakenly still inside. In some cases, patients become very ill as a result. Some do not survive.

But discovering the exact source of internal pain (usually abdominal) is often a process. Although in some cases, these “retained surgical items” include clamps, forceps or other hardware, they are most often the gauzy sponges doctors use during surgery. The incidents are referred to in the medical community as “never events,” as they are simply never supposed to happen.

And yet, it’s an ongoing problem. Consider the recent Connecticut Supreme Court case of Cefaratti v. Aranow. Central to this case was the question of the statute of limitations and whether the “continuing course of treatment” extended the timeline plaintiff had to file her claim. Continue reading ›

Medical Malpractice Damage Caps to be Considered by Florida Supreme Court

April 5, 2016 | Associates and Bruce L. Scheiner

The Florida Supreme Court has agreed to consider whether the 4th District Court of Appeals made the right call in finding damage caps on personal injury verdicts stemming from medical malpractice unconstitutional.

In the case of North Broward Hospital District v. Kalitan, defendant appeals finding that the $500,000 damage caps for medical malpractice injuries are unconstitutional. The appeals court based its ruling on the 2014 Florida Supreme Court decision in McCall v. U.S., which was a wrongful death lawsuit stemming from medical negligence.

In McCall, the Florida Supreme Court ruled that damage caps in wrongful death cases involving medical malpractice were arbitrary and violated plaintiffs’ constitutional rights to equal protection. Further, the court pointed out the stated purpose of the legislators’ action – a purported crisis with health care insurance premiums – was ill-founded. In fact, there is little evidence to suggest that imposing a cap on damages lowers health care insurance costs. Continue reading ›

Dupuy v. NMC Operating Co. – Dirty Surgical Instruments Cause Illness

March 23, 2016 | Associates and Bruce L. Scheiner

Fort Myers medical malpractice lawsuits are different from other kinds of claims alleging general negligence. Basically, cases against doctors, nurses and other health care professionals are held to a higher standard than other types of claims.

It’s not enough that there was a bad outcome or even to show that the health care provider was negligent. Instead, what one has to show, is that the actions of the health care worker breached the applicable standard of care. For this, you have to hire an expert witness with the same professional training as defendant who can attest to that professional standard (it varies by profession and location) and how the defense violated it.

Additionally, there are a host of notification requirements and other rules that apply to medical malpractice claims that simply don’t apply to other types of negligence lawsuits. Continue reading ›

Avoidable Medical Complications Prompt Millions in Penalties Against Lee Memorial

December 27, 2015 | Associates and Bruce L. Scheiner

The Fort Myers News-Press reports that Medicare is penalizing Lee Memorial Health System millions of dollars over the next 12 months because the hospital’s rate of avoidable patient infections and other preventable issues is too high.

The hospital system will not receive $2.4 million in Medicare payments in 2016 as a result of hospital-acquired infections, which include bloodstream infections, and also for problems with bedsores and falls.

According to Kaiser Health News, hospitals in Lee Memorial were among 721 punished by the federal government for high rates of patient injuries and infections. Some cases involved the most renowned hospitals in the country, including the Cleveland Clinic, the Hospital of the University of Pennsylvania in Philadelphia and the Brigham and Women’s Hospital in Boston. In fact, 1 in every 7 hospitals nationally will have their Medicare payments reduced by 1 percent over the course of the 2016 fiscal year, which began in October. In total, 31 hospitals in Florida faced similar penalties. Continue reading ›

Report: 1 in 10 Elderly Suffer Some Form of Abuse

December 1, 2015 | Associates and Bruce L. Scheiner

Recently in central Florida, two certified nursing assistants were fired and arrested on charges of battery on an elderly person after footage from a hidden camera appears to show them striking an elderly Alzheimer’s patient in their care.

The 76-year-old victim’s son said he and his wife noticed the bruising on his body, but assumed it was the result of frequent falls. His father wasn’t able to communicate the truth, according to ABC 10 News. The son then placed a “nanny cam” in his father’s room. They discovered staffers taunting him, handling him roughly and even striking him.

The worst part about all this is that it’s not all that uncommon. A new study published in the latest edition of The New England Journal of Medicine indicates 1 in 10 elderly people will suffer some form of abuse in their lives. That’s a largely conservative estimate, considering it involves self-reported abuse. Many people, like the victim in the aforementioned central Florida case, can’t speak up about what’s happening to them. Diseases like Alzheimer’s and dementia rob them of the ability to recognize and articulate these wrongs, to say nothing of the fear that keeps some suffering in silence. Continue reading ›

Birth Injury Lawsuit Results in $9.6 Million Judgment for Victims

November 27, 2015 | Associates and Bruce L. Scheiner

In Northern California, there is a 3-year-old little girl who is blind. She has to be fed through a tube in her stomach. She suffers seizures. She cannot walk or talk or take care of herself. It’s not likely she’ll ever be able to do those things, and most likely, she will die an early death.

The situation is heartbreaking, and made even worse by the fact her family asserts her condition was caused by a doctor who waited far too long to order a Cesarean section for the mother when she was in labor with the girl in 2012.

Now, in a bench trial at a U.S. District Court in Sacremento, a federal judge ruled the physician did indeed wait too long before initiating a C-section. This was in light of the fact that the fetus’s heart rate was worsening and there was little chance her mother was going to be able to deliver the child vaginally. Continue reading ›

Wrong, Missed, Delayed Diagnosis Happens to Majority of Americans, New Report Says

November 3, 2015 | Associates and Bruce L. Scheiner

At some time in their lives, Americans will experience a missed, delayed or wrong diagnosis from a health care provider. That’s according to the latest in a series of in-depth patient safety reports by the Institute of Medicine, which is part of the National Academy of Sciences.

The first of these studies, released in 1999, was the bombshell, “To Err is Human,” which revealed some 100,000 people die every year in the U.S. as a result of health care errors. The latest estimates indicate the actual figure is likely four times that high. But diagnostic errors are scarcely mentioned in this literature. Now, researchers contend this under-studied issue accounts for far more problems than other types of mistakes, such as surgical mishaps or medication errors.

Much of research in the past has spotlighted mistakes that occur in hospitals. This is, of course, important. After all, that’s where emergency services are rendered, many surgeries take place and patients receive longer-term, inpatient critical care. However, it’s not where the majority of diagnostic errors happen. They occur in surgical centers, outpatient facilities and doctors’ offices. Continue reading ›

State Farm Mut. Auto. Ins. Co. v. Earl – Motorcycle Accident Lawsuit

July 3, 2015 | Associates and Bruce L. Scheiner

Auto insurance companies often will not pay an insured what is owed under uninsured/underinsured motorist coverage provisions without a fight.

Uninsured/underinsured motorist coverage is coverage paid for by the insured in the event he or she is injured due to the negligent actions of another driver who either has a low maximum payout or lacks insurance. Although this type of coverage isn’t mandatory in Florida, it usually comes standard in most auto insurance packages, and people have to sign a waiver declining it if they choose to do so. It’s a good idea to have it, however, because recent studies indicate 1 in 4 drivers in Florida don’t have any coverage at all.

In the case of State Farm Mut. Auto. Ins. Co. v. Earl, a motorcyclist suffered severe injuries in a 2008 crash after a semi-truck merged into his lane, forcing him off the highway at 65 mph. The motorcyclist survived, but the trucker didn’t stop and was never found. (Other witnesses on the road confirmed his account of what happened.)

Malpractice Risk Shadows Cosmetic Dentistry Boom

January 29, 2014 | Associates and Bruce L. Scheiner

America’s quest for that beautiful smile will continue to keep people flocking to their dentist for tooth whitening and implants, according to a recent survey of cosmetic dentists.

But as with any medical procedure, there is a risk of injury.

Our dental malpractice attorneys have a keen grasp of the complex issues relating to dental negligence.
Continue reading ›