Florida Injury Attorney Blawg

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.

What are the rights of expectant parents for the death of a fetus from an incident like a slip and fall or medical malpractice? Surprisingly, because a fetus is not considered a person under Florida's Wrongful Death Act, Tanner v. Hartog, 696 So.2d 705 (Fla. 1997), neither parent may bring a claim for wrongful death or for loss of companionship. U.S. v. Dempsey, 635 So.2d 961 (Fla. 1994).

Because the law treats the death of a fetus as a physical injury to the mother, the mother may bring a personal injury action against the at-fault party. The action can include a claim for emotional injuries.

The viability of a father's claim for negligent infliction of emotional distress is far less certain. The answer depends, in part, on the mysterious and unpredictable "impact rule."

In Florida, whether a person may recover for emotional injuries is governed by the impact rule. Florida's impact rule provides as follows: "[b]efore a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress injuries must flow from personal injuries the plaintiff sustained in an impact. The rule actually requires some impact on the plaintiff, or, in certain situations, the manifestation of severe emotional distress such as physical inuries illness." Fla. Dep't of Corr. v. Abril, 969 So.2d 201, 206 (Fla. 2007)."

The rule was developed to limit "fictitious or speculative claims." Willis v. Gami Golden Glades, LLC, 967 So.2d 846, 850.

Continue reading "Florida Civil Law - Compensation for Loss of Fetus (Stillbirth) Due to Negligence" »

Florida law imposes a duty on insurers to act reasonably in the discharge of the fiduciary duty they owe their policy holders. In the case of an injury claim against a policy holder (insured), the insurance company is duty bound to settle within the policy limits when it can and should do so. When the insurer fails and a final judgment is then entered against the insured in excess of the policy limits, the insurer will be responsible for satisfying the entire judgment if it is shown that it failed to act fairly and honestly towards its insured with due regard for her or his interest.

The law encourages insurance companies to settle claims that could and should be settled. The law reduces the number of cases that are forced to trial. The law protects policy holders from bearing the burden of excess judgments.

The law is important.

The law works.

The law does little to protect medical providers from excess judgments!

Florida Statute 766.1185 (2003) affords insurance carriers a safe harbor from excess judgments in medical malpractice cases. It provides that an insurer shall not be held in bad faith for failure to pay its policy limits if it tenders its policy limits by the 210th day after service of the complaint in the medical negligence action upon the insured.

The statute does not require the injured party to accept the tender. So long as the carrier tenders the limits, it is immune from any liability for an excess judgment.

Not so the medical provider.

Unless the insurance company's tender is accepted, the medical provider remains personally liable for the excess judgment.

In essence, the insurer has relatively little to lose by having its tender declined. If the case proceeds to trial and an excess judgment is obtained, the excess is the responsibility of the medical provider rather than the insurance company. Good deal for the insurer, bad deal for the insured. When the most the insurer will ever have to pay is the policy limits, why not roll the dice? Who would not want to roll the dice with nothing on the table to lose?

Because of this, 766.1185 leaves medical providers far more vulnerable to excess judgments than insureds in non-medical malpractice cases.

Continue reading "Florida Doctors Vulnerable to Excess Judgments in Medical Malpractice Cases" »

Under no circumstances may a civil action alleging medical malpractice/negligence be started in Florida more than seven years from the date of the incident or occurrence out of which the action accrued. This 7-year limitation is imposed by what is called a statute of repose, set forth in Florida Statute 95.11(4)(b). This is not to say that every medical negligence claim can be instituted up to seven years from the date of the incident or occurrence out of which the action accrued. Most cannot.

The time limit for starting most medical malpractice cases is controlled by the section of 95.11(4)(b) that provides as follows: "An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident 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...." This is Florida's medical negligence statute of limitations. It is not the same thing as the statute of repose.

How is the 4 year sol limit stretched to 7 years? By showing that "fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury...." id. When the burden is met, "the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred." Hence, the 7 year cap.

(IMPORTANT NOTE: Nothing shall bar an action brought on behalf of a minor on or before the child's eighth birthday. 95.11(4)(b))

Continue reading "Statute of Repose and Florida Medical Malpractice/Negligence Claims" »

I voted for President Obama and fully expect to vote for him again in 2012. However, I am disappointed by one of his remarks delivered in the 2011 State of the Union message. In speaking about taking steps to improve the economy, the president mentioned that he is willing to work with the Republicans on medical malpractice reform legislation. I am hoping that his words were only rhetoric, chum if you will, to get a few cheers from the Republicans during the address, rather than an expression of his true intentions.

Among the lawyers who handle medical malpractice cases and know the realities of this practice area beyond the rhetoric, the word "deform" is substituted for the word "reform." This is because the word "reform" suggests a good thing, while the word "deform" imparts a whole different meaning.

Make no mistake about it, the medical malpractice "reform" favored by Republicans is not a good thing for individuals harmed by serious medical mistakes. Their idea is to make it more difficult, if not completely impractical, for individuals harmed by medical negligence to seek redress through the civil justice system. I consider this a bad thing rather than a good thing, hence the use of the word "deform."

For many years, powerful forces, in particular, the insurance industry, have pounded into the psyche of American society that our country faces a medical malpractice crisis. However, the truth is far different than the propoganda.

Continue reading "President Obama Mentions Medical Malpractice Reform ("Deform") in 2011 State of the Union" »

The Readers' Forum section, The Miami Herald published a letter from a South Florida doctor containing various assertions about medical malpractice litigation. The letter angered my wife, who decided that a response was necessary. Here it is:

Dr. Jerome Reich's statement that "about 25-30 percent of the cost of our system is directly related to malpractice litigation, defensive medicine because of the threat of litigation and flagrantly ridiculous cases that some attorneys take on a contingency basis simply for "settlement"" is inflammatory and wrong.

Through years of misrepresentations, the insurance and medical industries have convinced the general public that every medical malpractice jury verdict favors the patient regardless of the merits of any particular case. The statistics tell a much different story. According to a 2001 study conducted by the Bureau of Justice Statistics, medical malpractice plaintiffs win only 27% of trial cases. There are many other studies with similar results. Interestingly, when this issue was brought up before the Florida legislature several years ago, the people making these inflammatory statements would not do so under oath.

A large focus of the conservative position on health care reform has been that frivolous lawsuits drive up health care costs and require doctors to practice "defensive medicine" that is costly and wasteful. However, the health economists and independent legal experts who study the issue do not believe that is true. They say that malpractice liability costs are a small fraction of the spiraling costs of the U.S. health care system, and that the medical errors that malpractice liability tries to prevent are themselves a huge cost both to the injured patients and to the health care system as a whole. Tom Baker, a professor at the University of Pennsylvania Law School and author of The Medical Malpractice Myth states "If you were to eliminate medical malpractice liability, even forgetting the negative consequences that would have for safety, accountability, and responsiveness, maybe we'd be talking about 1.5 percent of health care costs."

The bottom line to me is that medical malpractice lawyers provide a much needed service. Heaven forbid that you or a family member be the victim of medical malpractice and have no legal recourse. Without legal recourse, what incentives are there to make our medical system better?

Continue reading "Letter to Editor (Miami Herald) Regarding Medical Malpractice Litigation (Florida)" »

Through years of misrepresentations, the insurance and medical industries have convinced the general public that every medical malpractice jury verdict favors the patient regardless of the merits of any particular case. Like a non-stop chant - think Florida State University football games - they scream of a crisis involving frivilous claims and fleeing doctors (but refuse to make the same claims under oath). The statistics tell a much different story.

According to the Insurance Information Institute, a study of almost 11,000 medical malpractice trials between 1985 and 1999 found that provider-defendants won approximately 81 percent of the time. A Bureau of Justice Statistics study of medical malpractice cases tried in large counties across the United States found that defendants won approximately 73 percent of the time. By contrast, the study reports that plaintiffs won 52 percent of all tort trials (not just medical malpractice trials) in its sample that took place in 2001.

Despite the availability of these enlightening numbers, the false misrepresentations have not abated. Sadly, the legislators of many states, Florida included, have accepted, purposely or not, the misrepresentations like a grouper swallowing its prey. The result has been the enactment of laws making it prohibitive to pursue a claim for negligence against medical providers.

In Florida, pre-suit requirements can exact the expenditure of upwards of $10,000 before a lawsuit can be instituted, versus a more reasonable $400 filling fee to initiate a claim against a non-medical provider. In addition, the Florida Legislature, aided and abetted by Governor Jeb Bush, placed arbitrary damage caps on awards against medical providers. (See this blog.) Claims against non-medical providers do not have similar arbitrary damage caps.

Continue reading "The Truth (and Lies) About Medical Malpractice Litigation - Florida Perspective " »

Annually, well more than one million Americans have refractive surgery to correct their vision. Refractive surgery is any type of surgery that alters the refractive power of the eye. Lasik is the most well known of the procedures, but others are available, including Lasek, PRK, and Epi-Lasik. Most of the refractive surgeries rely on laser, but Conductive Keratoplasty (CK) uses radio wave energy.

Unfortunately, as common as the procedures have become, preventable injuries do occur. Most of the injuries can be divided into five major categories:

• Contraindications for surgery


• Surgeon error


• Failure to treat postoperative complications in a timely and proper manner


• Failure to obtain informed consent


• Equipment malfunction

A surgeon is supposed to evaluate the patient prior to surgery. A policy statement from the American Academy of Ophthalmology (AA0) explains the reasoning for the surgeon evaluation:

"The best interest of the preoperative patient is served by preoperative evaluation by the operating surgeon. Ethical and qualify of care standards are met only if the individual patient's needs are addressed.... It is the ophthalmologist's responsibility to provide quality control, prospectively, in the preoperative assessment."

Unfortunately, the preoperative evaluation by the surgeon is not always done. This increases the chances that contraindications are missed. The consequences of performing surgery with contraindications can be extremely severe, including the need for corneal transplants.

Other reasons for negative surgical outcomes include poor skills of technicians responsible for reading measurements and surgeons taking unnecessary chances.

Surgeon Error
The surgeon's inadequate technique or skills may result in poor alignment of the corneal flap or cutting into the cornea. In some instances, the wrong prescription is programmed into the laser.

Continue reading "Refractive Surgery (Lasik, PRK, Lasek, CK) Malpractice Litigation in Florida" »

In its infinite wisdom (sarcasm intended), the Florida Legislature, in 2003, placed arbitrary caps on the amount of money persons harmed by medical negligence may recover for noneconomic damages. (Noneconomic damages are defined in Florida Statute 766.202(8) as follows: "Noneconomic damages" means nonfinancial losses that would not have occurred but for the injury giving rise to the cause of action, including pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act.) This blog will attempt to summarize the caps, as set forth in Florida Statute 766.118:

IF THE NEGLIGENCE IS COMMITTED BY A "PRACTITIONER" ("Practioners" include MDs, DOs, chiropractors, podiatrists, naturopathists, optometrists, dentists, midwives, physical therapists and nurse practioners as well as their employers (i.e. hospitals, private practice groups). See 766.118(1)(c)):

• For personal injury: $500,000 per claimant, regardless of the number of practitioner defendants, and no practioner shall be liable for more than $500,000, regardless of the number of claimants.
• For negligence resulting in a permanent vegetative state or death: $1,000,000 is the total amount recoverable from all practitioners, regardless of the number of claimants.
• In cases that do not involve death or permanent vegetative state, if the trial court determines that the patient has sustained a catastrophic injury and the noneconomic harm sustained by the injured patient was particularly severe: $1,000,000 total by all claimants from all practitioner defendants.

• Personal injury: $750,000 per claimant regardless of the number of nonpractitioner defendants.
• Permanent vegetative state or death: $1.5 million per claimant.
• In cases that do not involve death or permanent vegetative state, if the trial court determines that the patient has sustained a catastrophic injury and the noneconomic harm sustained by the injured patient was particularly severe: $1.5 million.

Continue reading "Limits on Non-Economic Damages in Florida Medical Malpractice Cases" »

Florida Statute Section 768.21 outlines who is eligible for benefits under Florida's Wrongful Death Act. (See this blog for an easy-to-understand breakdown.) With one exception, the statute - although debatable as to its fairness - treats all victims alike. The exception? The survivors of those who have died from medical malpractice/negligence.

Sections (3) & (4) of Statute 768.21 determine the eligibility of children and parents of decedents to compensation under the Act. Section (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," while Section (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 "Florida's Wrongful Death Statute Creates a Privileged Class" »