Articles Posted in Medical Malpractice

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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?
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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.
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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

Contraindications for Refractive Surgery
Some patients are poor candidates for refractive surgery. Eye diseases, such as keratoconus, corneal dystropies, or retinal detachments, are the most common contraindications for these patients.

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.
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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.

IF THE NEGLIGENCE IS COMMITTED BY A NONPRACTITIONER:

  • 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.

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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)
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To the surprise of many, most of the doctors who work in Florida’s hospital emergency rooms are not hospital employees. Instead, they are independent contractors. (It is quite rare for Florida hospitals to employ their ER physicians.) Equally surprising is that Florida law does not hold a hospital liable for a doctor’s negligence simply because the hospital grants privileges or credentials to the doctor, unless there was negligence in the credentialing. These matters become important when emergency room malpractice causes serious personal injuries and death.

With the reality of arbitrary statutory damage caps limiting the monetary exposure of medical negligence defendants, it is often necessary [for the victim or the victim’s family] to recover from multiple parties to be justly compensated for serious injuries or death. For such damages resulting from negligent emergency room services, the hospital would seem to be a natural target. Not so.

Today’s hospitals typically take the position that the doctors working in their emergency rooms are independent contractors, individuals for whom they have no legal liability when things go wrong. Strictly speaking, they may be right. Independent contracts are not employees, whose negligence subjects the employer to liability under the principle of respondeat superior (the Latin meaning is ‘let the master answer’).

Thankfully, Florida law does not accept the strict view of this consequential subject.

The main legal principles being used to hold hospitals accountable are:

  • Non-delegable duty
  • Actual agency
  • Apparent agency
  • Negligent credentialing

Non-delegable duty. This theory, which is not limited in its application to medical negligence cases, is most often utilized for activities involving the risk of serious injury or loss. In the context of emergency rooms, the risk is addressed by statutes and rules which set forth strict guidelines for modes of operation. Recent court decisions have relied on these rules and regulations to find that hospitals have a non-delegable duty to provide various non-negligent services in its emergency rooms.

Actual agency. The elements necessary to establish an actual agency relationship are: acknowledgment by the principal that the agent will act for him, the agent’s acceptance of the undertaking, and control by the principal over the actions of the agent.

Apparent agency.The main element of this principle is the impression through words and actions a hospital conveys to the public about its ER. Through advertising and appearance (e.g., uniforms; logos; paperwork; etc.), the general public can reasonably believe that an ER’s physicians are hospital employees. This is usually a fact question requiring a decision by the trier of fact, typically a jury.

Negligent credentialing. Involves granting privileges to an unqualified physician to practice medicine in the hospital. The mechanism for allowing a doctor to ply his trade in a hospital setting is supposed to be more than a rubber-stamp process. Thoughtful consideration based on rigorous standards should be followed.
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Our law firm was recently hired by a military veteran who claims to have been infected with the liver disease Hepatitis C by equipment used to perform colonoscopies at the Veterans Administration (VA) hospital in Miami, Florida.

Last year the VA acknowledged contamination issues with endoscopic equipment used to perform colonoscopies in its Miami facility between 2004 and 2009. It has notified more than 3000 patients of the potential for infection and recommended testing, one of whom is our client. To her great disappointment, she tested positive for Hepatitis C.

Although the VA admits to the contamination problem, it does not so readily admit to it being the cause of infection in every veteran who has been tested positive for the virus (or HIV; there have been reported cases of HIV infection). Because Hepatitis C, among serious and sometimes fatal medical conditions, is relatively easy to contract, the refusal of the VA to take responsibility for every case of infection is understandable. (However, shouldn’t there be a rebutable presumption in favor of the veterans that the virus was caused by the VA?)

We expect the government to conduct comprehensive discovery in our case in an effort to establish other risk factors, such as intravenous drug use, blood transfusions, promiscuous sex, etc. From past experience, we know that the government’s lawyers and even the FBI will attempt to look into every relevant aspect of our client’s history for evidence to blame for the infecton other than its contaminated equipment.
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wheelchair.jpgA 71 year old Florida man and his wife of nearly 50 years were recently awarded a total of 11.8 million dollars in a unanimous ruling by a three-person arbitration panel in a civil case involving allegations of medical malpractice against Dr. Alfred O. Bonati and his Gulf Coast Orthopedic Center. The panel determined that William Clark was harmed by back surgery performed below the prevailing professional standard. Mr. Clark’s permanent injuries have left him wheelchair bound.

The award allocated damages for past and future medical and related expenses; past and future pain and suffering; and past and future loss of consortium. In addition, the arbitration panel, consisting of one person selected by the plaintiff, one picked by the defendants, and third a neutral former judge, also left open the chance of an award of punitive damages.
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