Articles Posted in Medical Malpractice

Most people are surprised to learn that most hospital emergency room physicians are not hospital employees. Instead, they are independent contractors.

“An independent contractor is a natural person, business, or corporation that provides goods or services to another entity under terms specified in a contract or within a verbal agreement. Unlike an employee, an independent contractor does not work regularly for an employer but works as and when required, during which time he or she may be subject to law of agency. Independent contractors are usually paid on a freelance basis. Contractors often work through a limited company or franchise, which they themselves own, or may work through an umbrella company.”

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Here is my Letter to the Editor, word for word, that was published by the Miami Herald on June 25, 2014:

WRONGFUL DEATH CAP

Re the June 19 letter DeGennaro the best person to lead Miami VA: While Barth Green may be a prominent South Florida doctor, he is hardly a legal scholar. While writing in support of Dr. Vincent DeGennaro, his “close friend and respected colleague,” he tries to bolster his argument by adding gratuitous debunked comments about doctors fleeing Florida because of its torts laws.

In McCall v. United States of America, the Florida Supreme Court declared that the statutory cap on noneconomic damages in medical malpractice cases was unconstitutional. (In reaching this conclusion, the court determined that the numbers Governor Jeb Bush and his cronies presented to the Florida Legislature to demonstrate a medical malpractice crisis were cooked. In other words, the numbers were phony.)

As important and right as this decision is, a gigantic and dangerous wrong remains alive within the medical malpractice civil justice system.

Florida’s Wrongful Death Act is the civil law blueprint for addressing a wrong resulting in death caused by negligence. Section 768.21 Florida Statutes lays out who may be compensated for the loss of a loved one and by what measure. In all but one type of case where death has resulted from negligence, the children, no matter their ages, of a parent who has died without leaving behind a surviving spouse may recover from the wrongdoer for pain and suffering and the loss of the decedent’s companionship and protection. (See this blog for an easy to understand wrongful death survivors and damages chart.)

The one exception? For death caused by medical malpractice.
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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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