Articles Posted in Medical Malpractice

dollarsIt is common for health and disability (lost wages) insurance companies to pay benefits to their insureds who have been injured through the negligence of others. Most of the insurance policies contain language granting the insurance company a right of reimbursement for the money it has paid out from the proceeds recovered by the insured in the personal injury case for the same losses.

How much must be repaid depends on policy language and who is paying the settlement or judgment in the personal injury case.

Many of the insurance policies provide that the carrier has the right to be reimbursed in full up to the amount recovered in the liability case before the insured and the insured’s attorney receive penny one. When the compensation is paid by a tortfeasor, who is the person or entity responsible for causing the harm, reimbursement is determined by the formula set forth in  section 768.76(4), Florida Statutes. The statutory formula applies even where the insurance policy calls for full reimbursement to the carrier first. In Ingenix v. Ham, 35 So.3d 949 (Fla. 2nd DCA 2010), Gerald Ham’s health insurer, UnitedHealthcare, paid almost all of Ham’s medical bills relating to a medical procedure that ultimately resulted in his death. After settling with the medical providers (i.e., tortfeasors) in a medical malpractice lawsuit, Ham’s estate contended that it was only required to reimburse UnitedHealthcare a reduced amount according to the formula set out in section 768.76(4), Florida Statutes (2008). UnitedHealthcare took the position that it was entitled to full reimbursement in accordance with the language of its policy. The court held that section 768.76(4) controlled, limiting UnitedHealthcare’s reimbursement to the formula under section 768.76(4).

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maze2The difficulties and limitations associated with medical negligence claims are many. The list includes:

  • Medical malpractice claims have a shorter statute of limitations than ordinary negligence claims — two years versus four years. See § 95.11(4)(b) and § 95.11(3)(a).
  • Prospective medical malpractice plaintiffs must comply with complex and costly presuit requirements, as set forth in chapter 766, Florida Statutes, before filing a medical malpractice suit, which includes conducting “an investigation to ascertain that there are reasonable grounds to believe” that medical malpractice occurred. Ordinary negligence claims do not have these requirements. Id. § 766.203(2)see generally id. § 766.201-.212.
  • The restrictions that chapter 766 places on medical malpractice plaintiffs’ ability to prove their cases persist even after a lawsuit is filed, such as providing specific qualifications for medical experts testifying as to the standard of care. See generally id. § 766.102.
  • Certain adult children (over the age of 25) whose parents die as a result of medical negligence are barred from recovering lost parental companionship, instruction, and guidance and for mental pain and suffering. See § 768.21(8). This restriction does not apply if the death results from ordinary negligence. See § 768.21(3).
  • Certain parents of adult children who die as a result of medical negligence are barred from recovering for mental pain and suffering. See § 768.21(8). This restriction does not apply if the death results from ordinary negligence. See § 768.21(4).

“Because of the statutory restrictions and requirements that apply only to medical malpractice claims, any ‘doubt’ as to whether a claim is for ordinary negligence or medical malpractice should be ‘generally resolved in favor of the claimant.”‘ J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 947 (Fla. 1994).

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cemetery1I have railed at length in this blog against a Florida law that allows medical providers alone to avoid the same legal liability everyone else faces for causing the negligent loss of life. The offensive statute is section 768.21(8), Florida Statutes, which is part of Florida’s Wrongful Death Act.

Section 768.21, entitled “Damages,” describes who is entitled to what in wrongful death cases. Subparts (3) and (4) provide as follows:

(3) Minor 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. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.
(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.

Where the wrongful death resulted from medical malpractice, subpart (8) bars the recovery of “lost parental companionship, instruction, and guidance and for mental pain and suffering” of “all children of the decedent if there is no surviving spouse.” as otherwise allowed in subpart (3), and “mental pain and suffering” for “[e]ach parent of an adult child … if there are not other survivors” as otherwise allowed in subpart (4). Subpart (8) provides as follows:

(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

(For purposes of this statute, an adult child is a child over the age of 25)

This simple paragraph has caused heartache upon heartache to a countless number of parents and children whose loved ones died from medical malpractice. Every week our office receives phone calls from disbelieving adult children and parents seeking a magical solution that doesn’t exist. Often, we are their fourth and fifth call. Sadly, the best we can offer are condolences and the suggestion they complain to Florida’s Governor and its state legislators. Not very comforting words.

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doctorCivil disputes arising from death due to negligence are governed by statutes 768.16-768.26, known as the “Florida Wrongful Death Act.” Section 768.17 sets forth the legislative intent of the Act:

“It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.”

In all fairness, section 768.17 should read as follows:

With the exception of cases involving medical negligence, it is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.” (Language in bold added to make the point of this blog.)

Consider these scenarios:

Scenario No. 1:

Sixty five year old Tom was killed when his vehicle was struck from behind by a Coca Cola truck. Single, he is survived by two adult children over the age of 25. Tom’s children filed suit against Coca Cola and settled the case for a substantial sum of money. Most of the money was paid as compensation for their immense pain and suffering.

Sixty five year old Dick died on the operating table due to a surgeon’s negligence. Single, he is survived by two adult children over the age of 25. Because of an exception contained in Florida’s Wrongful Death Act, Dick’s children did not have a right to be compensated for their immense pain and suffering. The negligent surgeon was able to walk away scot free.

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hospital.jpgMost 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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caduceus-1219484-m.jpgHere 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.

scales of justice.jpgIn 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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scales of justice.jpgOn 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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doctor.jpgIs 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.)
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