Florida Injury Attorney Blawg

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.

Continue reading "Florida Subjects Medicaid Recipients to Arbitrary Medical Malpractice Limits" »

Is the loss of a loved one by medical malpractice less painful and catastrophic than such a loss by some other form of negligence? Either the Florida Legislature thinks so, or else it purposely created an arbitrary and capricious law to insulate medical providers from being held fully accountable for their negligence. The law in question is Section 768.21, of Florida's Wrongful Death Act.

768.21 says who can make a civil damage claim arising from the death of a loved one through the negligent act of another party. Subsection (3) provides that "[M]inor children of the decedent and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury." Subsection (4) declares that "[E]ach parent of an adult child may also recover for mental pain and suffering if there are no other survivors."

(Florida Statute 768.18 defines "minor children" as children under 25 years of age, notwithstanding the age of majority.)

Continue reading "Doctors Skirt Fault Under Florida's Wrongful Death Act" »

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.

Continue reading "Medical Malpractice Myths" »

Florida's Wrongful Death Act, located in sections 768.16 through 768.26 of Florida's statutes, controls legal actions arising from the loss of life on account of a tortfeasor's negligence. The Act refers to those who may recover damages for the loss as "survivors."

Survivors can be spouses, children and parents. The Act allows survivors to recover the decedent's medical expenses and future lost earnings and accumulations, and to be compensated for their own mental anguish.

Needless to say, the loss of a parent or child causes substantial mental anguish. Inexplicably, Florida's Legislature has carved out an exception for mental anguish damages caused by medical negligence. Specifically, the Act bars

• compensating adult children for mental anguish caused by the death of a parent


• compensating parents for mental anguish caused by the death of an adult child

These exceptions are arbitrary and capricious. Unfortunately, they have been upheld by the Florida Supreme Court. See Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 - Fla: Supreme Court 2000.

In addition to depriving survivors of their rightful due, these outrageous exceptions create a dangerous environment for many people who receive medical care in Florida. Strong and fair medical negligence laws demand accountability from providers and facilities. This promotes quality care. Weak laws allow the opposite. Making matters worse, the exceptions create a financial incentive for death as the prefered outcome following a serious malpractice event. Under Florida's civil justice system, those who survive their medical malpractice injuries can be far costlier than those who do not. Because money has a way of making people do rotten things, this is a troubling scenario.

Continue reading "Florida's Wrongful Death Act Fosters Better-Dead-Than-Alive Philosophy In Medical Malpractice Cases" »

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.

Continue reading "Fundamentals of Brain Injured Baby Medical Malpractice Cases in Florida " »

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.

Continue reading "NICA (Florida Birth-Related Neurological Injury Compensation Association) -- Illusory Remedy? " »

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...."

Continue reading "Time Bars in Florida for Bringing Medical Malpractice/Negligence Claims -- Statue of Limitations and Statute of Repose " »

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.

  Continue reading "Binding Florida Hospitals for Medical Negligence of Independent Contractors" »

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.

Continue reading "2012 Florida Legislature Seeks to Eliminate Rights of Medical Malpractice Victims" »

Effective October 1, 2011, individuals seeking redress for injuries caused by medical errors face yet another obstacle placed in their path by Florida's Republican-dominated legislature. The new legislation applies to cases that arise on or after October 1, 2011.

The new legislation, Florida Statute 766.1065, forces claimants to provide target defendants with a medical authorization form along with the notice of intent to initiate litigation. The problem is that the authorization requirements of 766.1065 appear to abrogate the privacy rights of patients under Florida Statute section 456.057(7)(a) and the Federal Health Insurance Portability and Accountability Act at 42 USC Section 201 et seq. (commonly referred to as HIPAA) and 45 CFR Section 164.512.

It is too early to tell how the conflict will be resolved. One would like to believe that privacy rights will hold sway, but the forces seeking to insulate medical providers and their malpractice insurance companies hold an inordinate amount of influence in this state, so the outcome is anything but predictable.

The consequences of failing to comply with 766.1065 could be fatal to the case, so it is best not to play with that fire. We recommend providing the required authorization form, but include a statement in the notice of intent to initiate litigation, in bold large face type, that the authorization does not abrogate or supersede the doctor-patient privacy/confidentiality rights deliniated in the aforementioned citations.

Perhaps even more problematic to the pursuit of due process than the authorization, is the further hurdle created by the new law that for physicians licensed in other states to provide expert testimony in Florida about the prevailing professional standard of care or to execute and submit presuit verified written expert medical opinions, they must obtain certain certificates. Florida Statute Sections 766.102(12) and 458.3175. This is an onerous requirement designed to make it more difficult for those harmed by malpractice to pursue just compensation.

Continue reading "Holding Negligent Florida Medical Providers Accountable Made More Difficult by Republican Legislators" »

Medical providers (doctors, hospitals, nurses), aligned, for the most part, with Republican politicians, believing them to be covering their backs, will be surprised to learn that, in a battle between them and medical malpractice insurance companies, they have been stabbed in the back.

Florida Statute 766.1185 (2003) is a safe-harbor statute for medical mapractice insurers. It gives them 210 days after a formal Complaint is served on one of its insureds to avoid having to satisfy an excess (of the policy limits) judgment. If the insurance carrier tenders the policy limits within the 210 days, it is safe from having to pay the excess portion of any judgment.

Although the insurance carrier may be safe, the insured is not. For the carrier to benefit from the safe-harbor statute, it is the tender alone, rather than a tender and acceptance, and thus a release of liability, that matters. The statute does not make acceptance of the tender mandatory. The operative act for carrier protection is the tender.

Continue reading "Florida Medical Malpractice Statute Exposes Providers to Excess Judgments" »

Not satisfied with the existing arbitrary damage caps on non-economic damages (e.g., pain & suffering) contained in Fla. Stat. 766.118 - presently under challenge in Estate of Michelle Evette McCall v. United States of America* as violating the Florida Constitution - Florida's 2010 Republican-controlled legislature created additional barriers to the rights of individuals harmed by medical negligence.

Caps on non-economic damages for Medicaid patients. Contained in 766.118(6), Medicaid recipients harmed by medical negligence are limited to $300,000 in non-economic damages. The arbitrary cap applies regardless of the damage, including death and catastrophic injury (e.g., brain damage; paralysis).

Sovereign immunity granted to private medical schools and their employees providing services at teaching hospitals (primarily affects the University of Miami through its dealings with Jackson Memorial Hospital). The new measure is contained in F.S. 766.1115. I have blogged recently about the dangers associated with sovereign immunity - Sovereign Immunity and Florida Personal Injury Law. Sadly, the Florida Legislature has seen fit to extend the dangerous doctrine to private for-profit corporations.

Continue reading "2010 Florida Legislature Further Curtails the Rights of Medical Malpractice Victims" »

In 2004, more than 80-percent of Florida voters passed Amendment 7, technically Article 10 Section 25 of Florida's Constitution, commonly known as the "Patients' Right to Know Act." The amendment provides that "patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident."

Not surprisingly, a number of hospitals quickly lined up to challenge the scope of the voter-approved constitutional amendment. In essence, they sought to keep from having to produce documents relating to the investigation of adverse medical incidents, and in one of the cases, relating to the selection, retention, or termination of a doctor accused of medical negligence.

In 2008, The Florida Supreme Court, in Florida Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla., 2007), ruled against the hospitals, declaring that the shroud of privilege that existed in Florida with regard to medical records had been lifted by Amendment 7 to "allow patients to better determine from whom they should seek health care, evaluate the quality and fitness of health care providers currently rendering service to them, and allow them access to information gathered through the self-policing processes during the discovery period of litigation filed by injured patients or the estates of deceased patients against their health care providers." (The quoted language was used by the Supreme Court from the written opinion of Judge Sawaya in Florida Hospital Waterman, Inc. v. Buster, 932 So.2d 344 (Fla. 5th DCA 2006).

Continue reading "Medical Malpractice (Amendment 7): Florida Hospitals Thumb Noses at Voters and Supreme Court" »

The question often arises in civil cases as to which witnesses the Plaintiff's lawyer is prohibited from communicating with outside the presence of the Defendant's counsel. The answer is governed by Florida Rule of Professional Conduct 4-4.2.

The Rule was put to the test in the context of a medical malpractice case in Lee Memorial Health System, d/b/a Healthpark Medical Center v. Jeffrey Smith and Melissa Smith, individually, and as Parents and Natural Guardians of Kiarra Summer Smith, a minor, 40 So.3d 106 (Fla. 2d DCA 2010). The Smiths filed a medical malpractice action on behalf of their daughter against Lee Memorial. In their complaint, they alleged that the hospital fell below the standard of care in calculating nutritional solutions. The injuries alleged in the complaint included permanent neurological damage, lack of normal head growth, and cerebral palsy.

While the suit was ongoing, the child was receiving care and treatment from a pediatric neurologist and several other physicians who were employed by Lee Memorial. The child's lawyers tried to meet with the doctors to discuss her medical condition. Lee Memorial asked the court to prohibit the meetings. The circuit court refused, so Lee Memorial petitioned the district court of appeal to do so. It also refused, reasoning as follows:

The prohibition against communicating with members of a represented organization [like Lee Memorial] is applicable to only three categories of persons or employees: (1) those who supervise, direct, or regularly consult with the organization's lawyer concerning the matter; (2) those who have the authority to obligate the organization with respect to the matter; or (3) those whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

The court decided that none of the child's treating doctors fell within any of these categories.

Continue reading "Florida Medical Malpractice - Communicating With Treating Doctors Employed By Defendant Hospital" »

Congressional Republicans are unrestrained hypocrits and ardent agents of America being a money-centered society over a people-centered society. The lure of big money trumps (pun intended) their lip service philosophy of limiting big government to empower the people.

H.R. 5, the so-called Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act of 2011, is a terrible bill and is as anti-consumer and anti-victim as it gets. This bill would severely limit the ability of injured patients and their families to hold health care and medical products providers accountable. It would also limit remedies against for-profit nursing homes, insurance and pharmaceutical industries, manufacturers of medical devices, and even against doctors who commit intentional torts, such as sexual abuse.

To accomplish all of this, the federal law would preempt laws on the books in every state addressing the same issues.

So much for states' rights.

The lowlights:

• Caps on economic and non-economic damages. The bill limits non-economic damages to $250,000 in the aggregate, regardless of the number of parties against whom the action is brought. This cap is more restrictive than any state cap currently in place. Non-economic damages compensate individuals for injuries such as loss of a limb or sight, loss of fertility, excruciating pain, and permanent and severe disfigurement.


• Reduced statute of limitations.


• Severe restrictions on punitive damages.


• Pharmaceutical companies are immune to punitive damages.


• Medical products and medical provider suits must be brought separately. Instead of having all of the parites present and allowing the jury to evaluate the evidence, this provision will allow the Defendant to blame another Defendant who is not a party to the case.


• Allowing all future damages over $50,000 to be paid periodically. This provision will prevent victims from receiving in a lump sum the money awarded by a jury after hearing the evidence. It allows insurance companies and large corporations to reap the interest benefits of a victim's jury award.


• Not surprisingly, H.R. 5 will not limit any defenses available to Defendants under state law.

Here is an example of Republican federal legislation that is harming the American people: Supreme Court of Florida Gives Free Ride to Car Rental Agencies
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Contact us at 866-785-GALE or by email to learn your rights.