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Archive for January, 2012

Florida’s Courts Don’t Understand Suicide Medical Malpractice

Written by Spencer Aronfeld on . Posted in Medical Malpractice

Florida’s First District Court of Appeal unplugged the rights of victims of the negligent failure to diagnose suicide in the case of Rebecca A. Tuten as the personal representative of James Tuten v. Alexander Fariborzian, Meridian Behavior Healthcare, Inc.

Here are the facts:

On behalf of her husband, Jame’s, estate, Rebecca Tuten sued Dr. Alexander Fariborzian, a psychiatrist, and Meridian Behavioral Healthcare, a psychiatric facility,for his negligent wrongful suicide death in Florida. Mr. Tuten was receiving outpatient care at Meridian for depression and suicidal ideations. He attempted suicide in 2007 and voluntary admitted himself. After only 3 days, he was released on medication. Two months later he again attempted suicide and was admitted in the intensive care unit of a local Florida hospital. After being discharged from the ICU he was readmitted into Meridian, but again after just 3 days of care, he requested to be discharged. This time, Dr. Fariborzian denied his request and a petition was filed to involuntary continue his admission pursuant to Florida’s Baker Act. Dr. Fariborzian supported the petition for the Baker Act.

At the court hearing for the Baker Act procedure, Mr. Tuten requested to be discharged and Dr. Fariborzian certified that he was competent to provide his own consent for release with an order to receive follow-up care. The very next day Mr. Tuten shot his wife and then fatally shot himself.

The court dismissed her first complaint and she amended it to include a count against the doctor for breaching the standard of care when he certified that Mr. Tuten was competent to consent and against the facility for vicarious liability and for improperly discharging him. Procedurally similar to a case we are currently working on, where we represent the family of a nurse suing his own employer/hospital for the negligent care that we believe led to his suicidal death, the Court dismissed Mrs. Tuten’s case and she appealed to Florida’s First District Court of Appeal.

She raised three points on appeal. She argued that the trial court erred in dismissing her complaint under the Baker Act, that both the psychiatrist and facility breached their duty of care and that the court refused to allow her to amend her complaint.

The court dismissed her claim under the Baker Act by holding that a petition for involuntary placement can be withdrawn prior to a hearing and that Dr. Fariborzian opined that Mr. Tuten could decide for himself if he needed to be committed. Essentially, this means that if a psychiatrist petitions a court for the involuntary commitment of a psychiatric patient and then before the hearing decides to change his mind, even if he is wrong about his evaluation, there is no cause of action.

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The court dismissed the second count by holding that there is no common law duty requiring the facility or doctor to keep a patient committed against his will once the treating doctor decides that the patient is well enough to make up his own mind regarding commitment . Because, and I quote the court, “the internal workings of the human mind remain largely mysterious.”

The court seems to comfort itself by the fact that Mr. Tuten’s death occurred outside of the hospital’s custody. Using the illogical reasoning of the Chacko court, which apparently gives Florida’s psychiatric hospitals, and their staff unlegislated immunity from liability if one of their suicidal patients pulls the trigger after being discharged, regardless of whether the assessment and discharge was done appropriately.

As a Florida lawyer who sues hospitals and doctors I understand that Mr. Tuten was not in the hospital’s custody when he shot his wife and ended his own life, but I am outraged that this Court seems to give Florida’s corporate medical cartel the comfort of practicing medicine without consequence to the safety and well being of those suffering from depression and suicidal ideations.

Suddenly, the human mind is such an abstract and wondrous mystery that suicides defy prediction or prevention. Somehow, courts are able to divine the intent of parties to contracts or whether or not an accused acted with premeditation. That the court seems to be able to grasp and see through the looking glass of human nature with 20-20 vision. But the suicidal ideations of Mr. Tuten, who already had tried suicide not once but twice before, was not enough for the First District Court of Appeal to simply allow the case to go to a jury to decide? I find it reprehensible that trial and appellate judges, have the audacity to substitute their interpretation of what is reasonable medical and psychiatric care for that of a Florida jury.

If this Alachua County Florida wrongful death case went to a jury and the jury told Mrs. Tuten that her husband had received the appropriate care, I would be disappointed but I would applaud the fact that she had her day in court and that the jury did its constitutionally designed function. This result is unjust and I humbly suggest unconstitutionally deprives not only Mrs. Tuten justice but potentially thousands of Floridian’s affected by the failure to diagnose suicidal ideations and prevent their catastrophic consequences. I realize that not all suicides are predictable or preventable. As a Miami-Dade County patient safety advocate I do not believe that Florida’s doctors and health care providers should not be accountable for failing to diagnose a potentially suicidal patient and giving that patient the appropriate care. It is simply no different to me than failing to diagnose a stroke or pre-term labor. Psychiatric Medicine is a science and not some mystical medieval folk art. I suggest that they spend some time reviewing some of the recent studies published by the National Suicide Prevention Hotline that have identified genetic markers that are important in understanding risk of multiple suicide attempts.

Our Florida psychiatric medical malpractice lawyers express our sincere condolences to the Tuten family and hope that the Florida Supreme Court will hear their case and reverse the First District Court of Appeal’s unjust decision.

Why Is Florida The Nation’s Rape Capital?

Written by Spencer Aronfeld on . Posted in Sexual Assaults

The legal definition of “rape” in the United States has not changed for nearly 100 years. Since 1920, only forcible vaginal penetration by a man has been classified as rape. This excluded situations where victims were drugged or intoxicated or the alleged anal raping of boys by former Penn State University football coach, Jerry Sandusky.

In 2011, the U.S. Justice Department requested that the F.B.I. form a committee comprised of local and state law enforcement agencies to expand the definition. As a lawyer who helps victims of sexual assault in Florida, I cannot believe it took this long.

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President Obama’s administration led the crusade to expand the definition to include forcible anal or oral penetration of a man or woman or the rape of a woman by another woman. Yet, they failed to include non-consensual sex forced upon a man by a woman. I personally handled a case in Florida where a female healthcare provider improperly touched a male patient’s genitalia in a nursing home.

Florida’s criminal law refers to rape as sexual battery and defines it as oral, anal or vaginal penetration by a sexual organ or object. Florida Statute §794.011 1(h) clearly excludes any penetration done in the context of a medical procedure. I disagree with this exclusion as I have represented several women who have been sexually assaulted during medical procedures at South Florida hospitals.

States are now required to report all rapes to the F.B.I. which maintains national statistical data in the Uniform Crime Reports. However, based upon the outdated and inconsistent definitions, many rapes go unreported to the F.B.I.’s uniform crime report. The 2011 numbers have not yet been released, but Florida reported 5,373 forcible rapes in 2010. That is 28.6 forcible rapes (under the old definition) per 100,000 Floridians. Those are only the rapes that are reported to law enforcement. This makes Florida one of the states with the highest probability of being raped.

The Florida Department of Health has a campaign with specific suggestions on how to prevent being a victim of rape called “TALK ABOUT IT.” Our Coral Springs sexual assault victim’s rights advocates suggest you take a moment to consider their suggestions:

1. Trust your instincts.

2. Avoid people who ignore your feelings.

3. Let a friend know where you are going to be.

4. Know how to get help.

5. Always go out in a group.

6. Be aware of your surroundings.

7. Only accept drinks from someone you know and trust. Never leave a drink unattended.

8. Find out about a person before you agree to go out.

9. Talk about the reality of rape and sexual assault with your friends and family.

10. Identify your limits and clearly state them.

11. Trust your instincts.

Our Pembroke Pines personal injury law firm is devoted to the safety and protection of Floridians who have been victimized by a sexual assault or rape as the result of inadequate security in shopping malls, schools or businesses. We also hold hospitals, nursing homes and health care providers accountable if they improperly touch or sexually abuse patients.

Does Florida’s FDOT Care About Monorail Safety?

Written by Spencer Aronfeld on . Posted in Slip and Fall/Premises Liability

As a lawyer who sues the Florida Department of Transportation for injuries caused by its carelessness it did not surprise me that that those fancy high speed automated monorails that zip nearly 9000 passengers per day between terminals on the premises of Miami’s International Airport (MIA) would end up causing a serious Miami accident.

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The Florida Department of Transportation has taken a hands-off approach to inspection and safety of the MIA monorails even though MIA is located within the State of Florida. What is even stranger is that the FDOT oversees identical monorails at both Tampa and Orlando airports. Wonder why? It probably has something do with money.

Sadly, on November 23, 2008, a horrible accident happened at MIA when a three-car monorail on Concourse E with passengers on board flew past its designated stop and slammed into a wall. The accident caused serious personal injury to several Miami passengers and millions of dollars of property damage.

The FDOT did not investigate the accident, but rather, it was left to the National Transportation Safety Board (NTSB). The NTSB holds itself out as an “independent federal agency” charged with the investigation of accidents and the promotion of transportation safety. As I recently reported on the “Huffington Post,” the NTSB investigation revealed that accident could have and should have been prevented by appropriate supervision of the maintenance team. More importantly it recommend that the FDOT be involved in overseeing the safety of monorails in the State of Florida regardless of compensation.

Florida’s Statute §330 requires the Florida Department of Transportation to administer and enforce the rules and regulations for public airports. I guess the FDOT did not get the memo when it decided to essentially allow the maintenance technicians for the MIA monorail to decide how and when they were to inspect, maintain and repair monorails. That is essentially like allowing a ten-year-old to babysit a nine-year-old without parental supervision, making disaster a certainty.

As a Miami-Dade County PI lawyer, I believe that accidents like this are preventable with proper oversight and accountability. The FDOT needs to work closely with all monorail systems within the state to ensure their safe operation.