Articles Posted in Medical Malpractice

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barricade.jpgEffective 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.
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doctor.jpgMedical 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.
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scales of justice.jpgNot 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.
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thumbing nose.jpgIn 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).
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doctor conference.jpgThe 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.
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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.

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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 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.
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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.
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doctor.jpgUnder 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))
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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.
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