Articles Posted in Medical Malpractice

On March 13, 2014, the Florida Supreme Court, by its decision in McCall v. United States of America, exposed the fraud of “Tort Reform” perpetrated on the American public by Karl Rove, George Bush, Jeb Bush and others of that ilk.

Michelle McCall, a U.S. military veteran, died from shock and cardiac arrest as a result of severe blood loss after giving birth. She was removed from life support on February 27, 2006. A medical malpractice lawsuit was brought by her survivors, Ms. McCall’s parents and the newborn child. Following a lengthy trial, the district court concluded that the survivors’ noneconomic damages, or nonfinancial losses, totaled $2 million, including $500,000 for Ms. McCall’s son and $750,000 for each of her parents.

However, the district court limited the Petitioners’ recovery of wrongful death noneconomic damages to $1 million upon application of section 766.118(2), Florida Statutes (2005), Florida’s statutory cap on wrongful death noneconomic damages based on medical malpractice claims.

The Petitioners (the survivors) challenged the arbitrary damage caps of 766.118 by appealing to the United States Court of Appeals for the Eleventh Circuit. Even though the survivors lost the appeal, the Eleventh Circuit asked the Florida Supreme Court to take jurisdiction, pursuant to pursuant to Art. V, § 3(b)(6), Fla. Const., because there was no controlling precedent of the supreme court of Florida. The supreme court accepted the invitation.
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Not willing to accept the voice of the people as expressed through jury verdicts, the Florida Legislature has imposed arbitrary limits on how much individuals harmed by medical negligence/malpractice can be compensated for their losses.

Florida law recognizes two types of recoveries for people harmed by negligence, economic and non-economic. Economic losses include past and future income and medical expenses. In broad terms, non-economic losses are pain and suffering.

America’s jury system has its roots in Mosaic Law — Mosaic Law and American Jurisprudence. The system works.

Parties to lawsuits present evidence at trial. Following instructions from trial judges on how to weigh and consider evidence, juries deliberate carefully and thoughtfully behind closed doors — see, 12 Angry Men (1957 film). For the most part, juries get it right. On the rare occasions they don’t, their mistakes are corrected by trial judges and appellate courts.

Civil jury verdicts enable the powerless to hold the powerful accountable for wrongdoing. Florida’s Republican-controlled Legislature opposes this principle, and makes its view known every legislative session with proposed legislation aimed at neutralizing the importance of civil jury verdicts. (But for push-back from organizations like the Florida Justice Association, of which I am a proud member, the Legislature’s efforts at neutralization would be even more severe, the political equivalent of castration.) Arbitrary and capricious, one-size-fits-all damage cap limits, coming under the guise of “Tort Reform” or justified by the myth of a “Medical Malpractice Crisis” — (See this blog: Medical Malpractice Myths — are a particular legislative favorite.
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From time-to-time we publish in our blog letters and articles written by others on subjects of interest to us. Here are two excellent letters published in the March 1, 2013 issue of The Florida Bar News. Each addresses medical malpractice issues.
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Med Mal

This is a response to Robert William Patton’s defense-oriented letter on med mal experts. I have done complex medical malpractice cases for plaintiffs for the past 40 years and never filed a “frivolous med mal case.”

The sole cause of medical malpractice is bad doctors and health care providers. Nothing has ever been done to attack and remedy that root cause. Over 100,000 patients a year are killed by medical malpractice. It is so bad now that every patient should have a “patient advocate” with him/her when entering a hospital. The “Public Citizen Health Letter” has rated Florida one of the 10 worst states for pursuing disciplinary actions against physicians four times since 2001. The Florida Agency for Health Care Administration is a joke. The only thing that keeps healthcare providers accountable is med mal suits.

The defense bar and other conservative elements have put up every obstacle possible to prevent plaintiffs from filing these suits. The biggest obstacle is the presuit requirements, which are designed for doctors to investigate the case and, hopefully, settle them before suit is filed. After filing hundreds of medical malpractice cases, I have never had a plaintiff make a settlement offer during the presuit stage, before the complaint is filed. The defense always comes up with some “expert” to file an affidavit to refute the plaintiffs claims in pre-suit.
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Our previous blog addressed Florida’s statutory scheme, known as NICA (Florida Birth-Related Neurological Injury Compensation Association, Sections 766.301-766.316 Florida Statutes (1988), for providing “compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation.” See Section 766.301(2) Florida Statutes (1988). NICA is the exclusive remedy in cases that meet its requirements. Because its remedies may not be adequate to cover the damages, our blog encourages lawyers to make every effort to avoid NICA where the brain injury was caused by medical negligence. We explained that the remedies available under Florida’s traditional tort system often outweigh those under NICA.

Where NICA can and should be avoided to pursue medical malpractice remedies, the Plaintiff must prove fault and damages to prevail. This blog addresses some of the common causation and damage issues.

Hypoxia, or a lack of oxygen, is the leading cause of brain injury in newborns. During labor, the uterus contracts in order to push the baby through the birth canal. (Pitocin, a drug used to induce labor, intensifies uterine contractions.) Throughout the labor process, obstetrical personnel are able to monitor the fetus’ heart rate and well being through electronic fetal monitoring. (Every labor and delivery unit in every hospital in the country, uses electronic fetal monitoring.) As the labor progresses and the contractions become stronger and more frequent, the baby is exposed to tremendous amounts of stress. As the stress mounts, underlying problems, such as a knotted or twisted umbilical cord, or a placental problem, become heightened. Time is of the essence when a problem is exposed. Any breakdown in the monitoring process, such as through inattention or misinterpretation, can prove costly. Moreover, proper lines of communication must be maintained between the nurses and the obstetrician. A failure to properly alert the physician or of the physician to respond appropriately, can have critical consequences.

The first step in investigating a brain injured baby medical malpractice case is to have the fetal monitoring strips reviewed by an expert for evidence of hypoxia, whether it was documented by the health care providers, and whether they acted appropriately.

Medical malpractice defendants will try to deflect responsibility by blaming the brain injury on something other than a lack of oxygen. Other excuses include infection and inflammation.
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Claiming that medical malpractice premiums being charged to obstetric physicians were becoming dangerously high, in 1988 the Florida Legislature enacted legislation creating the Florida Birth-Related Neurological Injury Compensation Association (“NICA”) (Florida Statutes 766.301 – 766.316). The Legislature’s stated intent was to reduce medical malpractice claims by providing “compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation.” Section 766.301(2) Florida Statutes (1988).

NICA sounds good on paper. However, in practice NICA all too often falls short for the neurologically injured infants who require a lifetime of care, and their families.

The differences between the type and amount of compensation available under NICA and a medical malpractice claim can be substantial, with the upside of a successful malpractice claim being of far more benefit to the victim. However, NICA is the exclusive remedy for claims meeting its requirements. In addition, although NICA is a no-fault system, it is administered in an adversarial way to deny and limit benefits, including making families first seek and exhaust benefits under private insurance policies and government programs, an often daunting task under circumstances for less trying than while dealing with the needs of a brain-injured child. There are numerous other hurdles that make NICA far less appealing in practice than in theory.
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The outside limit in Florida for suing for medical negligence is seven (7) years from the date of the incident or occurrence giving rise to the action. This time limit is set forth in Florida Statute 95.11(4)(b) and is known as the Statute of Repose.

Florida’s Statute of LImitations for medical malpractice, also part of 95.11(4)(b), is 2 years from the time the malpractice “is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued….”
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Most people do not know that many doctors who work in hospitals are not hospital employees, but independent contractors. This is not a distinction without meaning.

The distinction can have significant legal consequences for the victims of medical negligence seeking to be fairly compensated for harm done, especially catastrophic damage.

Generally, employers are bound by the negligence of their employees. This is the concept of respondeat superior, where a passive party is liable for the negligence of another party.

The legal principle is not applicable in relationships involving independent contractors. The general rule is that entities, including hospitals, are not liable for the negligent acts of independent contractors.

Thankfully, there are exceptions to the rule, circumstances wherein an entity can be held to account for the negligent conduct of an independent contractor. In the context of hospitals, these are the exceptions:

• The medical provider is either an actual or apparent agent of the hospital. See Roessler v. Novak, 858 So.2d 1158, 1161-62 (Fla. 2d DCA 2003). Three elements must be present for apparent agency: (a) a representation by the principal; (b) reliance on that representation by a third party; and (c) a change in position on the reliance. Mobil Oil Corp. v. Bransford, 648 So.2d 119, 121 (Fla. 1995). Importantly, apparent agency does not arise from the subjective understanding of the third party. Izquierdo v. Hialeah Hosp., Inc., 709 So.2d 187, 188 (Fla. 3d DCA 1998). Rather, as indicated in the Mobil Oil case, its presence is wholly dependent on the appearance created by the principal. In Roessler, the appellate court recited the following facts as creating enough of a question on the issue of apparent agency to reverse the trial court’s order dismissing the claim against the hospital:
  

  In the present matter, evidence presented to the trial court for the purpose of the summary judgment proceeding demonstrated that Sarasota Memorial maintained a radiology department which was physically located within the hospital’s grounds. Sarasota Memorial contracted with SMH Radiology Associates, P.A., for it to be the exclusive provider of professional radiological services at the hospital. Dr. Lichtenstein was an employee of SMH Radiology on the date he interpreted Mr. Roessler’s scans. Neither Dr. Lichtenstein nor SMH Radiology had offices outside of Sarasota Memorial’s hospital grounds. The radiologists employed by SMH Radiology, including Dr. Lichtenstein, worked at Sarasota Memorial to provide all professional radiological services twenty-four hours a day, seven days a week, to Sarasota Memorial’s inpatients and outpatients.

Mr. Roessler sought the services offered by Sarasota Memorial when he went to Sarasota Memorial’s emergency department. 1163*1163 He was admitted to Sarasota Memorial as an inpatient through Sarasota Memorial’s emergency department. Once Mr. Roessler arrived at Sarasota Memorial and was admitted as an inpatient, the hospital provided him with the health care services and providers it determined to be necessary. Such services included inpatient professional radiological services, which were provided by Sarasota Memorial through its radiology department. After abdominal scans were taken in its radiology department, Sarasota Memorial assigned Dr. Lichtenstein to interpret them. Like the plaintiff in Cuker, 605 So.2d 998, Mr. Roessler did not attempt to secure a specialist on his own, but instead accepted the physician provided to him by the hospital.

• The hospital fails to exercise due care in the selection and retention of an independent contractor medical provider on the hospital staff. See Insinga v. LaBella, 543 So.2d 209, 214 (Fla. 1989). In Insigna, a patient died in the hospital from botched treatment from a phony doctor who had been granted hospital privileges. The decedent’s estate sued the hospital negligent selection and retention of the imposter. Relying on the general proposition that principals are not liable for the negligence of independent contractors, the lower court dismissed that part of the claim against the hospital. The Florida Supreme Court disagreed with the lower tribunal, finding, “as a matter of public policy, that hospitals are in a better position to protect their patients and, consequently, have an independent duty to select and retain competent independent physicians seeking staff privileges.”
• Where the duty is non-delegable. See Pope v. Winter Park Healthcare Group, Ltd., 939 So.2d 185, 187 (Fla. 5th DCA 2006). With regard to hospitals, the duty may arise out of a statute, a regulation, or a contract. Id. at 187-88. The contract concept is summarized well in a jury instruction the appellate court in Irving v. Doctor’s Hospital of Lake Worth, Inc., 415 So.2d 55 (Fla. 4th DCA 1982) decided should have been given by the trial judge: “[O]ne who undertakes by contract to do for another a given thing cannot excuse himself to the other for a faulty performance, or a failure to perform, by showing that he has engaged another to perform in his place, and that the fault or failure is that of another or independent contractor.” Irving was an action involving the liability of a hospital for alleged negligent diagnosis and treatment by an emergency room physician that resulted in serious injury to appellant’s minor daughter. The ER physician was an independent contractor, rather than an employee of the hospital. The DCA reasoned that since the hospital was under contract to render medical care to the child, it could not excuse the fault of the ER doctor because he might have been an independent contractor.
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As if the arbitrary and capricious damage caps already on the books were not enough, the 2012 Republican-controlled Florida Legislature is moving forward with legislation designed to keep those harmed by medical negligence from ever being compensated for their losses.

Senate Bill 1506 will allow doctors to get patients to waive their right to compensation for losses suffered from medical malpractice.

That’s right, not a single penny for past and future medical expenses, lost wages, or for pain and suffering!!!

How could this be, you ask. Simple. With a Governor Rick Scott and a super-majority of radical Republicans controlling both chambers of the Florida Legislature, anything is possible.

Eliminate zoning restrictions on pristine land. Done. Tax dollars to private religious schools. Done. Reduce spending for public schools. Done. Suppress voting rights. Done.

Ending the rights of malpractice victims. Almost done.
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