Florida Injury Lawyer Blog

Nobody likes to lose. The feeling trial lawyers have when they lose a significant case must be like what generals feel when they lose a war. Loss is a part of life. And in the world of Florida personal injury trials, both parties can walk hopefully into a courthouse, but only one will leave with a favorable verdict.

Lawyers who defend doctors, hospitals, and insurance companies for malpractice claims get paid by the hour, regardless of the result. Certainly, the best defense lawyers should do everything they ethically can to ensure their clients escape liability--or paying for whatever they are being accused of. And when that happens in one of my cases I respect and congratulate my adversary.

In professional boxing, when and if both fighters make it to the final rounds still standing, the judges score the fight and declare a winner. Personal injury trials are much the same. If both parties can make it to the end of a long trial, the jury votes and decides the winner. Boxers that are unhappy with the decision can file a protest, usually to no avail. Litigants unhappy with a verdict or a trial judge's decision can appeal.

Most Florida medical malpractice defense lawyers have longstanding relationships with their clients. It is very common for hospitals to retain a particular firm to handle all of their claims, ranging from slip and falls in the waiting room to birth trauma. Those lawyers get to know intimately how those hospitals function and get to know the people who run them very well.

For the lawyers who represent injured patients and their families, it is a much different relationship. Because of their ability to work with defense clients on a regular basis, defense lawyers can help train their clients in what to do and say and how to keep records to avoid being sued in future cases. By contrast, rarely if ever do we attorneys for the plaintiffs know our clients before the event. And because of the nature of our work, it is even more unusual to represent a client more than once.

DO YOU HAVE A MEDICAL MALPRACTICE CASE?

Case selection for a Miami plaintiff personal injury lawyer who focuses on medical malpractice is perhaps the most difficult aspect of any case. Florida's legislature has made suing a doctor or hospital a complex and expensive process. Virtually every legislative session, Florida's medical malpractice laws change-- sometimes in subtle and little-known ways, requiring lawyers to study the statutes constantly, the way some brokers watch the market. Every shift in the law makes it more and more difficult for injured patients to hold medical providers accountable for their actions.

Lawyers who defend doctors and hospitals usually bill by the minute for the services they provide. In the computation of their time, defense clients pay for all the costs of defending the case up front. This includes retaining experts, travel, transcripts and jury consultants. In contrast, those of us who represent injured patients almost always take the cases on a contingency basis; in other words, we get paid only when we win and collect.

DOES THE DEFENDANT DOCTOR HAVE MEDICAL MALPRACTICE INSURANCE?

Winning is important, but collecting is even more important. Therefore, one of the first issues we have to address when screening potential malpractice cases is whether or not there is insurance coverage since Florida permits its doctors to practice without requiring that they maintain medical malpractice insurance. That means no matter how horrifying the facts of a given case may be, without the means to collect for the injury, many potential cases are simply not financially feasible for plaintiffs' lawyers to accept.

I have always found it sad that Florida law requires a doctor to have insurance to drive him- or herself to the hospital to perform a surgery, but allows the same doctor to operate on people without the same requirement.

IS THERE ENOUGH TIME LEFT TO SUE?

Assuming there is coverage to pay from, the next concern is whether or not there is time left to file the case. Florida Statutes Section 95.11 gives a very short two-year statute of limitations to sue a doctor or hospital for medical malpractice, in contrast to four years for virtually every other type of personal injury claim. This is perhaps the greatest injustice perpetrated against the injured patients by Florida law. Even for the most experienced lawyers, medical malpractice cases are the most complex, difficult, expensive, and time- consuming to understand and prove. And in many cases, the injured patients fail to realize that they are the victims of medical negligence for months or years after a procedure, diagnosis, or surgery goes wrong.

Despite the complexity of those injuries, Florida gives doctors a 50%-better chance of escaping liability based on the time limits to file a claim if they injure a patient on the operating table as opposed to in the parking lot of the hospital. Often we reject potentially viable claims simply because the two-year time limit has expired.

IS THERE A LEGAL SURVIVOR?

Lastly, is there a survivor? Florida's current medical malpractice wrongful death law essentially gives doctors and hospitals a license to kill unmarried patients or patients without children under the age of 25. The law requires that a patient killed by a health care provider must be survived by a living spouse or a child under the age of 25. That law discriminates against same-sex partners, the elderly, and young single patients.

My clients are astounded when I am forced to explain why I cannot undertake the representation of their widowed 72-year-old mother who developed bedsores that lead to sepsis or the unmarried live-in boyfriend who died from the failure to diagnose a stroke at an urgent care center.

I did select a case on behalf of the family of a nurse who committed suicide after I came to believe he was improperly discharged from the care of the very same South Florida hospital where he had worked for twenty years. The trial judge dismissed the suicide malpractice case without ever letting me present the facts to a jury. I appealed, but Florida's Third District Court of Appeal affirmed the trial court's dismissal without even issuing an opinion to explain their ruling. Our motion for rehearing is currently pending. If the appellate court denies that motion, the war will be lost.

This ruling affects the legal rights not only of my clients but also of every family who loses a loved one in Florida because of the negligence of a doctor or hospital in failing to diagnose and treat a suicidal patient. And, as in war, the generals rarely feel the results as much as the countless innocent victims that a bad decision can affect.

Rarely if ever, do I feel sympathy for any doctor or hospital that attempts to escape responsibility for their mistakes--especially when those errors injure or kill someone. But the case of Dr. Cyril Karabus, an Australian pediatric oncologist is different. According to the New York Times, Dr. Karabus, 78, has been held prisoner by the United Arab Emirates for the alleged manslaughter or a 3-year-old girl who died while under his care.

In 2003, Dr. Karabus was convicted in abenstia and without his knowledge for the murder of a severely ill child diagnosed with Leukemia. After her parents refused his recommendation for a bone marrow transplant, she developed a brain hemorrhage and died. A nurse later informed the family that Dr. Karabus forged her medical records and failed to administer the child the appropriate amount of platelets.

Unlike the United States, medical malpractice in the Emirates is often considered a criminal act. A medical review board in Dubai reviewed the case and concluded that based upon the evidence; he did not commit medical malpractice. But the prosecutors have appealed. This case has received international attention and last week because the World Medical Association is now warning all doctors not to travel to the U.A.E.

FLORIDA LAW

In Florida it is a crime to fraudulently falsify a medical record on a nursing home patient. §400.1415 is the law that governs nursing home and related health care facilities. Altering a medical record for a nursing home patient is a second degree misdemeanor and is grounds for the suspension or termination of a license.

Florida's doctors are subject to discipline when making a deceptive, untrue or fraudulent medical record or representation when treating a patient. Florida Statute §456.072 requires that doctors be disciplined and penalized for committing fraud.

Florida's Department of Health maintains the historic discipline reports for doctors, nurses, dentist and even massage therapist licensed in Florida. Even though the DOH's stated Mission is to "protect and promote the health of all people in Florida," it has failed to update the site for seven years. The last posted discipline report is dated May 8, 2006, which includes a well known celebrity Miami plastic surgeon who was found to have been purchasing and injecting patients with black market Botox.

For example, I have investigated several emergency room and urgent care malpractice cases in Florida I believe warrant a criminal investigation. The untimely death of Michael Jackson and subsequent criminal prosecution and conviction of Dr. Conrad Murray suggest that our nation is increasingly likely to consider criminal charges for doctors who abuse the privilege of practicing medicine.

Until then, we recommend that every patient in Florida research their doctor periodically by verifying his or her licensure on the Department of Health's website. We provide free consultations to anyone who believes they have been harmed by a doctor's mistake.

Injured patients should be advised; Florida has a very short statute of limitations to bring medical malpractice cases such as performing a surgery on the wrong site or patient against doctors or hospitals. Our experienced team is here to help you quickly analyze your claim and understand your legal options.

Lacrise Moody, is the mother of a little girl who broke her hip in a playground accident, in St. Lucie County Florida. The child can finally breathe a sigh of relief thanks to Florida's 4th District Court of Appeal which rejected her Fort Pierce Florida hospital's effort to escape accountability for medical malpractice.

Following the accident, Ms. Moody took her daughter to her pediatrician for an exam. The pediatrician took X-rays and believed that the girl might have a broken her right hip. She recommended that her mother take her immediately to Lawnwood Medical Center, a hospital where she had staff privileges.

Once admitted, the hospital's on-call orthopedic surgeon examined the child; but failed to diagnose her broken hip. The pediatrician agreed with the surgeon and discharged the girl. At home, the child's condition deteriorated rapidly. So her mother decided to bring her to another hospital for a second opinion.

The second hospital found her broken hip and diagnosed her with septic arthritis, septic shock, heart failure and MRSA. The child was admitted for several months and has been left with long-term and permanent health problems.

The family filed a medical malpractice case against the pediatrician, initial orthopedic surgeon and Lawnwood. Both defendant doctors quickly settled their cases and releases were signed and exchanged. The hospital was not included in the settlement.

The family's emergency room malpractice lawyers were very clear when drafting and reviewing the releases to make sure the child still retained all of her legal rights to sue the hospital. In fact, there was specific language included in the settlement documents making sure there was no confusion on this issue.

As soon as the releases were signed, the hospital tried to get the child's case dismissed claiming that they were no longer legally responsible for her injuries. In support of their position, they attached an illegible copy of the back of one of the admission papers they claim the mother signed in the ER.

This case is a typical example of how a hospital in Florida attempted to escape paying for their medical mistakes. Injured hospital patients and their families are often shocked to learn that most of the doctors and surgeons who provide medical care to them are not employed by the hospital. Hospitals, for the most part, try to distance themselves from what a doctor or surgeon has done by claiming that the doctor is only an "independent contractor" of the hospital. In other words, the doctor is not the hospital's employee; and therefore, it should not be legally accountable for a doctor's mistake.

Lawnwood tried to escape responsibility by relying on the fine print on the back of some paperwork that the mother was forced to sign in its ER. The child's mother denies having signed anything. In reality, patients or the parents of patients often unqualified to comprehend the legal ramifications of these complex forms when they are simply thrust upon them in the triage of an emergency room. Yet sadly, this happens everyday in hospitals across Florida. As a parent, I completely understand - I would sign anything to ensure my injured daughter receives care.

However, as a lawyer that sues hospitals and doctors for medical malpractice in Miami, I don't think that hospitals should be permitted to use the legal mumbo jumbo drafted by high-priced Florida insurance defense lawyers. These forms contain self-serving language designed to shield and protect hospitals from litigation and accountability to their injured patients.

Florida's Good Samaritan Act provides qualified immunity to ER doctors and hospitals that cause harm. A similar protection should be afforded to injured patients, especially children, who unknowingly sign away their rights under the duress of a medical emergency.

Hospital admission forms are contracts between a patient and a hospital. Commonly, admission forms detail the legal relationship between a hospital and doctors--who are not the responsibility of the hospital--yet this does not discharge the hospital responsibility to the patient for any negligence.

In this particular case, the admission forms were silent as to whether or not the hospital had liability to the patient. Again, the mother denies ever seeing or signing any of these forms. Fortunately for this injured child and her family, the Appellate court agreed with the family by allowing the case to proceed. Read the opinion here.

I hope this case send a strong message to Florida's hospitals, courts and most importantly to Tallahassee that the legal rights of injured patients deserve as much protection as the rights of hospitals and medical doctors.

The Florida Supreme Court seems to be on a roll. They just published another very plaintiff friendly opinion fortifying doctor-patient confidentiality in a Florida medical malpractice case. Ramsey Hasan sued his dentist, Dr. Lanny Garvar for not properly diagnosing his condition that resulted in a severe bone infection, physical and mental pain and disfigurement.

Mr. Hasan sought additional care for his bone damage from Dr. Jennifer Schaumberg, an oral surgeon. Coincidentally, Dr. Schaumberg has the very same dental malpractice insurance as Dr. Garvar. During the course of the litigation, Dr. Garvar's lawyers tried to have an ex parte or "private meeting" with Dr. Schaumberg even though she is not being sued.

Initially, Dr. Schaumberg was represented by a lawyer in a different law firm as Dr. Garvar. But soon after the case was filed, the attorney switched law firms to the firm representing Dr, Garvar. This means that the same dental malpractice insurance company selected, retained and paid for both Dr. Garvar and Dr. Schaumberg's lawyers.

When Mr. Hasan found out that Dr. Garvar's dental malpractice insurance company paid an attorney to confer with Dr. Schaumberg; he asked the judge to enter a "protective order" to prohibit the meeting. He claimed that the proposed meeting violated Florida's doctor/patient confidentiality privilege. Dr. Garvar argued that his lawyer should meet privately with Dr. Schaumberg based upon the First Amendment right to freedom of speech.

The trial judge agreed with Dr. Garvar. Mr. Hasan appealed to Florida's Fourth District Court of Appeal which also agreed and ordered that the private meeting go forward. Mr. Hasan then appealed to Florida's Supreme Court; which quashed the Fourth's ruling. The Supreme Court found that the physician-patient confidentiality statute prohibits a doctor who is not a party to a medical malpractice case from privately meeting with a defendant doctor's lawyers.

I applaud the Supreme Court's decision. I have faced this exact issue in a similar dental malpractice case, ironically with the lawyers representing Dr. Garvar. In medical malpractice cases the testimony and opinion of a patient's treating doctor regarding damage, cost of medical care and prognosis is very important. I believe that defendant doctors and their lawyers should never be allowed to communicate with a plaintiff's doctor privately. This is especially important when both doctors are insured by the same medical malpractice carrier. A patient's right to privacy can never be violated simply because they are suing another doctor or hospital for negligence.

To learn more about Florida's pro-doctor laws please read my recent blog for the Huffington Post: " Patients, Beware When Doctors 'Go Bare."

Continue reading "The Importance of Doctor-Patient Confidentiality " »

Nobody likes going to the emergency room, as most people do not really understand that their own life could be saved by prompt emergency medical intervention. For those without health insurance, the decision to trek to the ER is more complicated. According to Republican Presidential candidate Mitt Romney, our country's Emergency Rooms provide free government supported healthcare to the uninsured. Anyone without health insurance who has recently visited an ER will disagree. So does, Dr. David Seaberg, the president of the American College of Emergency Physicians (ACEP), who recently stated that "emergency care is not health insurance."

ER's are Overcrowded

Last year more than 136 million Americans who sought treatment at ERs and not just for medical emergencies. Many patients with good health insurance have trouble getting appointments quickly with their own primary care doctors, and end up going to the ER instead. Others, delay care often allowing their condition to go undiagnosed and treated, to the point that nothing can be done.

Knowing when and why to go the to the Emergency Room can save your life. According to the American College of Emergency Physicians (ACEP) you should go the nearest ER when you are experiencing any of the following warning signs:

Difficulty breathing or shortness of breath
Chest pain or pressure
Fainting, sudden dizziness, weakness
Changes in vision
Confusion or changes in mental status
Sudden or severe pain
Uncontrolled bleeding
Severe or persistent vomiting or diarrhea
Coughing or vomiting blood
Suicidal feelings
Difficulty speaking
Shortness of breath
Unusual abdominal pain or pressure.

Suing a Florida Emergency Room Hospital, Doctor or Nurse

Not only can going to the ER early save your life, but it can also save your legal rights if the ER makes a mistake. As a lawyer who sues Broward emergency rooms for misdiagnosing strokes, embolisms and heart attacks. Hospitals routinely defend these cases by blaming the patient for not having sought medical treatment sooner.

Every Florida medical malpractice case against a doctor, hospital or emergency room requires that the claimant prove three things:

1. Negligence (medical mistake).
2. Causation (did they actually cause a problem, injury or death).
3. Damages, (harm the mistake caused).

The "Dead Man Walking" defense basically claims that whatever mistake the hospital, doctor, or nurses made; it did not change the patient's ultimate outcome. This is a very effective argument, especially in cases that involve clear medical mistakes and indisputable injuries, such as birth injuries and brain damage.

Florida Statute Section 768.13, is known as the Good Samaritan Doctrine. It makes suing a Florida emergency room more difficult for patients than any other medical malpractice case. The "Good Samaritan Doctrine" provides protection to emergency room doctors and nurses from being sued unless it can be shown that the care was not just negligent but reckless. This elevated standard of proof, eliminates claims for mere medical errors even when the mistake hurts or kills a Miami hospital patient.

As a Florida bed sore lawyer, I believe that pressure ulcers are almost always preventable hospital injuries. Bed sores result from the necrosis or death of the epidermis and/or dermis layers of the skin. Bed ridden patients develop bed sores after being subjected to prolonged pressure and inadequate turning. Many elderly patients have significantly impaired circulation which leads to tissue breakdown.

The most typical areas that develop ulcers are on bony body parts like the thoracic and lumbar vertebrae, scapula, coccyx, sacrum, greater trochanter, ischial tuberosity, lateral knee, medial and lateral malleolus, metatarsals, and heels.

Most bed sores develop in the lower part of the body, on the hips and buttocks. Paraplegics have a 7% to 8% chance of death if they develop a pressure ulcer in the hospital, more than half will die within a year.

However, most if not all bed sores can and should be prevented by providing what all patients should receive: good nursing and medical care.

Our Miami hospital injury law firm makes the following recommendations to avoid developing a bedsore. It is important to remember that preventing a bedsore is far easier than treating them.

1. Frequently turn and reposition patients, even when in wheelchairs.
2. Instruct patients to change their own position frequently.
3. Use special mattresses specially designed to minimize bedsores.
4. Keep skin clean and dry, using mild soap and talcum powder.
5. Increase calories and maintain proper hydration.
6. Quit smoking. Smoking affects healing.

Our South Florida lawyers who help injured patients are currently representing patients who have developed bed sores, pressure sores and decubitus ulcers. If you have developed a bed sore during your admission to a hospital or rehabilitation center, seek immediate medical attention from a qualified wound care doctor, photograph the wound if possible and contact an experience bed sore injury lawyer.

As a South Florida lawyer who sues anesthesiologist for medical malpractice I am deeply concerned about patient safety and the quality of anesthesia care that is being provided in Florida's hospitals and ambulatory surgical centers. Anesthesia care is not only very complex and demanding, but when not performed properly, it can have a devastating affect on patients and their families.

I strongly encourage anyone considering undergoing an elective surgical procedure to ask the person providing anesthesia the following four questions before the day of surgery:

1. Is your anesthesia provider a doctor or a nurse?

You may be surprised to know that Florida is one of the states that allows certified nurses who have graduate level education in anesthesia to administer anesthesia, these nurses are called CRNA's. Florida Statute 464.015(6) requires that only a person who has a valid certificate to practice as Certified Registered Nurse Anesthetist may use the title CRNA. CRNA's typically work with surgeons, dentists, podiatrists and even anesthesiologists.

A current debate is raging in our country as to whether or not CRNA's should be allowed to provided anesthesia without a physician present. Not surprisingly, anesthesiologists argue their presence helps prevent deaths and surgical complications while the nurses say there is no difference in the drugs and equipment they use and the standards of care they follow.

Physicians who provide anesthesia have at least eight years of medical training and supposedly have the ability to diagnose and treat medical problems that can arise in the commonly referred to "preoperative period." "Peri" means "all-around" the surgical experience, and includes: medically evaluating the patient before surgery (preoperative); consulting with the surgical team; providing pain control and supporting life functions during surgery (intraoperative); supervising care after surgery (postoperative); and discharging the patient from the recovery unit. CRNA's do not have the training or experience to provide the same level of care.

Regardless of whether or not you select a doctor or nurse to provide you with anesthesia, you should ask specific questions regarding their qualifications and specific experience in your procedure.

2. Is the anesthesiologist insured for medical malpractice?

Sadly for Florida's patients injured by careless doctors, there is no requirement that doctors who provide anesthesia must carry medical malpractice insurance. Ironically, I have found that most nurse anesthetist I have sued in Florida do have medical malpractice insurance. Without medical malpractice insurance, you may have a difficult to impossible time collecting damages for any harm caused by an anesthesiologist in Florida.

3. What are the qualifications of the personnel in the recovery room?

PACU or the post anesthesia care unit is where patients emerge from anesthesia following surgery. A patient's breathing, circulation and level of consciousness have to be carefully monitored when coming our of anesthesia. It is up to the anesthesiologist to determine if the patients have sufficiently recovered and are ready to be sent home or moved to a hospital room. We believe that it is vitally important to have an anesthesiologist present in the recovery room in order to make this determination.

According to the American Society of Anesthesiologist, "the role of the anesthesiologist in this setting includes the provision of medical assessment and diagnosis, respiratory and cardiovascular support, and infection control."

4. Who will manage you medically after surgery?

Ask specific questions about who will be following you and when for pain control, prevention, treatment of infections and other post operative complications. We strongly urge you to be in optimal health before any elective surgical procedure.

If you have medical problems, such as diabetes, high-blood pressure or are a smoker, you should obtain clearance from a primary care physician before undergoing an elective surgery. You should discuss your health history in detail with your anesthesiologist who can determine if further medical clearance is necessary.

Our South Florida anesthesia mistake attorneys believe that the best way to avoid being a victim of surgery malpractice is to come prepared by doing research on the procedure as well as the specific members of your surgical team.

Americans are struggling to pay for health care. I have practiced as a Miami emergency room injury attorney for over 20 years and I have personally witnessed the alarming increase in the number of our clients that either have no health insurance or cannot afford to receive treatment following an injury.

President Obama's idea to force individual Americans into a private contract for healthcare is admirable. After having spent the last twenty years of my life representing those who either did not have access to healthcare or were the victims of careless Florida doctors and hospitals I believe that having medical insurance does not guarantee a patient will receive healthcare that is within the prevailing standard of care.

I am uncertain as to what President Obama means when he uses the term "healthcare" instead of "insurance." Massachusetts is a perfect example of universal healthcare gone wrong, due to a shortage of doctors.

If President Obama's plan is to work there has to be doctors, nurses and hospitals available to provide safe medical care to the patients. And most importantly there needs to be mandatory medical malpractice insurance to protect patients when and if these doctors make mistakes.

This debate seems to have eclipsed a more dangerous law that recently voted on and passed by the U.S. House of Representatives, H.R.5. "Protecting Access to Healthcare (PATH) Act."

The measure passed by a vote of 223-181. It may have serious effects on Florida nursing home injury victims, as well as many others hurt by careless doctors or hospitals. H.R. 5 places arbitrary caps on the amount of money that plaintiffs can receive in a medical malpractice law suit, regardless of what the jury verdict is.

According to the Bill's sponsor, Rep. John "Phil" Gingrey [R-GA11] jury trials in medical malpractice cases are "a costly and ineffective mechanism for resolving claims of health care liability and compensating injured patients." They argue that the mere threat of a lawsuit "is a deterrent to the sharing of information among healthcare professionals which impedes efforts to improve patient safety and the quality of care." Among the stated goals of H.R. 5 is to "reduce the incidence of defensive medicine and lower the cost of health care liability insurance."

As a Broward County medical injury attorney, I feel as though it is irrational to believe that providing doctors and hospitals immunity or caps on damages will in any way increase the sharing of information which will provide improved patient safety and reduce injuries. In my experience, doctors and hospitals prefer to operate in secret, preventing access to the most fundamental information to allow patients to make informed decisions about their own healthcare. Until such time as healthcare providers agree to put patient safety ahead of profits, I do not think they should be afforded any additional protection from law suits. In my opinion, trial lawyers and those who represent those injured by careless doctors and hospitals are the strongest and most effective means to reduce unintended patient injury and death.

Continue reading "OBAMACARE DEBATE DISTRACTS US FROM "THE PATH"" »

As a Florida anesthesia malpractice injury attorney, I was concerned by a recent FDA study that revealed that nearly 650 fires occur in United States operating rooms, during routine surgeries, every year. Often times, these fires can cause serious injury and disfigurement, and when the fire occurs in the patients airway, it can be fatal. In addition, there can be a profound psychological impact on the medical staff that is involved in a surgical fire.

Most agree that the root cause of surgical fires involves the use of supplemental high concentrations of oxygen, via an open delivery system, which creates an oxidized enriched atmosphere next to an ignition source, such as an electrosurgical unit or laser. This is referred to as the "Fire Triangle."

Since the FDA regulates many of the medical devices used in surgery, such as medical gases, skin preparation agents, electrosurgical units, and surgical drapes, they have undertaken initiatives to reduce the numbers of surgical fires. The FDA and the Anesthesia Patient Safety Foundation agree that anesthesia professionals can contribute to patient safety and minimize the risk of surgical fires. A Fire Prevention Algorithm has been suggested to be used, before surgeries, to assess the particular risk for specific patients undergoing specific surgeries.

As a lawyer, who sues doctors for operating room mistakes, I believe that the prevention of surgical fires in operating rooms is not just the responsibility of the anesthesiologist, but rather the responsibility of the surgical team. The surgical team consists of the surgeons, operating room nurses, and anesthesia professionals, who should work together to identify a patient's risk and then minimize it. Accordingly, the "Universal Protocol," which is used to confirm that the correct patient is receiving the appropriate procedure on the correct body part, needs to also include a risk assessment for a surgical fire.

In addition, hospitals and outpatient surgical centers should be equipped with the appropriate fire prevention tools, starting with an educational program to teach operating room personnel how to assess the risk for OR fires and understand how the risks can evolve as a surgery proceeds. Communication is the key, between the anesthesia provider and the surgeon on the other side of the drape, to understand the elements of the "Fire Triangle." If a patient's oxygen concentration needs change during an operation, the anesthesiologist and surgeon must communicate with each other to consider what the changes might mean in terms of a fire risk.

Our Broward County operating room injury lawyers believe that one of the primary reasons that surgery medical malpractice occurs is because of a lack of communication between the different members of the team, in regards to the overall care of the patient. A surgical fire check list is key to reduce the risk of fire in any healthcare facility. We recommend that before undergoing any operation you ask both your surgeon and anesthesiologist whether or not they have a surgical fire prevention protocol in place. It could just save your life.

I have been a practicing attorney specializing in personal injury and medical malpractice in Florida for over twenty years. Rarely does anything in the realm of my job shock me anymore. I have seen doctors lie, hospitals destroy records and convenience stores conveniently destroy the surveillance video of a client's assault.

When our Miami medical malpractice law firm recently filed a law suit against the Florida Department of Corrections ("FDOC") on behalf of a prisoner who we allege received negligent medical care while incarcerated, I learned of Florida's Statutes §960.297 and §960.293 for the very first time. According to the statute, the State of Florida or a local subdivision can file a civil law suit or in our client's case, a counterclaim to a law suit against the State, to recover money for the cost of incarceration and "other correctional costs" of $50.00 a day based upon the length of the sentence imposed by the court. If convicted of a capital or life felony the amount the State is entitled to $250,000. The State has up to 5 years after the date of release to sue for reimbursement. Read the counterclaim filed against our client by the FDOC here: Fla DOC counterclaim for restitution-9238.pdf

What does this mean in terms of prisoners who are injured due to the State's neglect? It means that the Department of Corrections can hurt a prisoner by negligently causing an injury or for civil rights abuses and can then turn around and sue the injured prisoner for repayment of the cost of keeping him imprisoned. To my knowledge this type of law does not exist in any other context. This insane law is the equivalent of allowing doctors or hospitals to sue patients who they injure or kill for the cost of the medical treatment, or a manufacturer of a dangerous medical device, like a De Puy Hip, to sue a patient for the cost of the implant.

I believe that if a judge or jury finds that the acts of the Florida Department of Corrections caused or contributed to the cause of the injury that is the subject matter of a law suit, the FDOC should be barred from bringing suit for repayment of the cost of incarceration. Furthermore, the 5 year statute of limitations for collecting repayment for incarceration should be limited to the same period of time that a prisoner would have to initiate a law suit against the FDOC. Furthermore, I believe that this law should not be enforced against any prisoner when the prison is privately run.

It seems to me that a prisoner, once released, has fulfilled his obligation to society. If the prisoner works while in prison, providing labor on farms, performing road repairs, serving meals or participating in sanitation processes, that labor should be offset by any amount owed for reimbursement. As a Miami Beach hotel injury attorney, I believe that suing prisoners who have been injured at the hands of the Florida Department of Corrections for reimbursement of the cost of incarceration violates the Eighth Amendment. Requiring a newly released prisoner, who was injured in prison and trying to obtain employment and be reunited with his/her family, to defend a law suit to collect money just does not seem like the best way to give someone a fresh start.

Feel free to email Florida's Governor Rick Scott and let him know how you feel about this law.

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.

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.

Continue reading "Florida's Courts Don't Understand Suicide Medical Malpractice" »

As a Miami Beach lawyer who sues careless hospitals I was pleased to see that our Florida Supreme Court finally struck back at the ultra doctor-friendly Florida Legislature in the case of West Florida Regional Medical Center v. Linda See when it ruled that information obtainable pursuant to Florida's Constitutional Amendment 7 is not protected from discovery.

In 2003, Lynda See complained of pain during a consult with her primary care doctor. He then ordered her to have an ultrasound which revealed a tiny amount of "sludge" in her gallbladder. She was then referred to a surgeon who recommended a laparoscopic cholecystosomy or removal of the gallbladder.

The surgery was performed at West Florida Hospital and during the surgery, the common bile duct was severed. A common mistake that I am very familiar with as Florida botched gallbladder surgery malpractice lawyer.

When the lacerated bile duct was discovered, a consult was made by another doctor that the patient needed two kinds of emergency procedures, one called a Roux-en-Y hepaticojejunostomy and the other an open laparotomy. Both procedures were performed without Ms. See's knowledge or consent. She contended that the emergency surgeries were also done negligently, causing additional damage. In addition, she claimed that they doctors failed to monitor her liver postoperatively causing premature liver damage.

Based upon the botched initial, follow up and post-op malpractice, Ms. See was forced to have a another round of surgery in 2005 and had to have a liver transplant. She ultimately filed a Florida gallbladder surgery malpractice case against all the doctors and West Florida Regional Medical Center for both vicarious liability of the surgeons and direct negligence for granting medical staff privileges to those doctors.

Once she filed suit, she requested that West Florida Hospital produce all documents and regulations and rules regarding the surgical credentialing for laparoscopic cholecystosomies, Roux-en-Y hepaticojejunostomy and other bile duct injury reports and all document and evidence pertaining to the training and credentialing of the doctors who performed the procedure on her. In addition, she requested all adverse incident reports that involved the hospital and the doctors in question in regards to laparoscopic cholecystosomies, Roux-en-Y hepaticojejunostomy and other bile duct injury reports. Florida law defines an adverse incident as medical negligence, intentional misconduct and any other act, neglect or default of a health care facility or provider that causes injury or harm to a patient.

Of course, West Florida Hospital objected to these requests and moved for a protective order. They claimed that, while the requests were made pursuant to Florida's Constitutional Amendment 7, the Amendment itself is an unconstitutional violation of the United States Constitution's Supremacy Clause. In addition, the hospital claimed that the information was neither discoverable nor admissible for any purpose in any civil action. They also contended that since her surgeries occurred back in 2003 and 2005, they predated Amendment 7 anyway. Lastly, they argued that Florida credentialing and peer review statutes §766.101(5) and 395.0191(8) prevented the disclosure.

Ms. See's case made its way from the trial court, to the First District Court of Appeal to the Florida Supreme Court. The Florida Supreme Court ruled that Ms. See is entitled to receive a copy of a blank application for medical staff privileges and that Florida's Statute §381.0287(b)1 allows impermissible attempts to limit the disclosures guaranteed by the Florida Constitution's Amendment 7. The hospital also was ordered to produce any evidence of the surgeon's training for Roux-en-Y hepaticojejunostomies, but not the credentialing files for matters other than adverse incidents.

As a Florida injured patient advocate, I strongly feel until Florida's doctors and hospitals are forced to provide open access to the decisions made to give and maintain staff privileges patients care and safety will continue to suffer.

With more Americans living without health insurance, a growing number of women are choosing to deliver babies at home. Home births are less expensive. According to a recent New York Times article, from 2004 to 2008 more than 28,000 babies were born at home, which is less than one percent of all births. However, the number is increasing. One reason might be the fact that research shows that planned home birth mothers receive fewer interventions, including epidurals, fetal heart rate monitoring and episiotomies, which means that these women are far less likely to experience lacerations, hemorrhage, and infections.

In addition, the research showed that planned home births babies are less likely to be born prematurely, suffer low birth weight or require intubation. Although planned home and hospital births exhibited similar perinatal mortality rates, once the baby is born at home it is three times more likely to die.

As a Florida midwife birth injury lawyer I recommend that only women who are having completely normal, non-eventual pregnancies even consider having birth at home or under the care of a midwife. A midwife should never be considered if the mother has a history of diabetes, hypertension, is carrying twins or has any other type of obstetric complication.
In addition, both the American Congress of Obstetricians and Gynecologist ACOG and the American College of Nurse Midwives agree that any women who has already had a baby by C-Section (VBAC) should have all subsequent babies in a hospital.

In Florida, a skilled and certified midwife has to have a relationship with both a hospital and OB doctor. Certified midwives are licensed in all 50 states and Florida has very specific rules regarding the certification and licensing of a nurse midwife. In Florida, a midwife is defined as any person who supervises a "normal labor and childbirth" with the informed consent of the patient. Normal labor and childbirth is defined as a healthy women with a healthy infant, expelling an intact placenta without injury or complication or undue strain to the mother. Florida Statute §467.003 requires that a certified midwife be a licensed advanced registered nurse and be certified by the American College of Nurse Midwives. The midwife also must be over 21 years old

In addition, our Fort Lauderdale baby delivery malpractice lawyers recommend that if you are considering have a baby born at home that you purchase a home birthing kit that includes plastic sheets, disposable under-pads, menstrual pads, a measuring tape and baby thermometer. Many Florida birth mothers consider having the birth in a special tub called a "birthing tub." If this is rented rather than purchased, we recommend equipping it with a disposable plastic liner.

Since complications can arise at any time during delivery it is very important to have an emergency plan in place for safe and immediate transport to the closest hospital. Statistics show that first-time mothers have a higher risk of complications than those who have previously given vaginal birth.

After over twenty years of being a Florida lawyer who helps babies who have been injured due to careless hospitals and having seen firsthand the catastrophic emotional, physical and financial devastation a birth injury can cause--not just to the baby but to the family--I strongly recommend having your child delivered at a hospital that has the facilities for deliver and a neonatal intensive care unit in case of disaster.

Florida's doctor loving governor Rick Scott has signed a new law that gives sovereign immunity protection to private university physicians who treat patients at public hospitals. This means that doctors who work for the University of Miami a private university and my Alma mater are given the same legal protection from medical malpractice law suits as though they were employed by the State of Florida.

In my opinion, as a lawyer who sues Florida doctors and hospitals, it is a dangerous and unnecessary layer of protection. Florida doctors already enjoy statutory caps on damages, a nearly impossible maze or presuit-requirements, a shortened statute of limitations and are permitted to practice medicine without medical malpractice insurance. Apparently those legal advantages were not enough for Governor Rick Scott, Florida's doctors, and UM President Donna E. Shalala.

I do not understand why private medical schools working with public teaching hospitals need to have sovereign immunity. Sovereign immunity is found in Florida's Statute Section 768.28 and provides a limitation on the amount of damages an injured person can obtain from a "governmental agency." Florida's sovereign immunity statute limits the amount of money for damages to $200,000.00 per person or $300,000.00 per claim. That means that no matter what damage is caused, from a hospital bed sore or wrong-site surgery or death, the amount of a potential claim is limited.

Florida's Sovereign Immunity Statute was amended to now include teaching hospitals for private universities, like the University of Miami School of Medicine, when the teaching hospital is either owned or operated by the state, a county, municipality, a public health trust, a special taxing district, a governmental entity having health care responsibilities, or a not-for-profit entity that operates such facility as an agent of the state. ,

The teaching hospitals, the medical schools, or employees must now provide specific notice to each patient that the entity that runs the medical school that the provider is acting as an agent of the teaching hospital. In addition, they must advise patients that the only legal rights they may have for an injury or death suffered as the result of medical malpractice will be subject to sovereign immunity. This notice requirement may be met by posting the notice in a place conspicuous to all persons. I doubt that many patients will understand the significance of this change or will have a meaningful opportunity to find alternative care at a private hospital.

President Shalala stated that "teaching hospitals like ours get the rarest and most medically challenging cases ... and they need to be able to attract and retain the full spectrum of top specialists.That's the importance of this legislation for us.'' I hardly think this is a reason to provide them this unnecessary protection.

The savings in medical malpractice payouts by the University of Miami are expected to total over $20 million dollars. Yet to date, none of the savings have been passed on to Jackson Memorial Hospital. This has raised considerable criticism by Florida Representative Carlos Lopez-Cantera who finds it odd that UM would not pass on some of this new- found money to cash-strapped Jackson Memorial Hospital who supported the passing of the bill.

In the end, our Dade-County hospital injury law firm believes both patients of Jackson Memorial Hospital and injured victims of medical malpractice caused by UM --or any protected doctors-- will suffer from this outrageous and unnecessary new law.

Continue reading "Florida's Governor Gives Doctors Additional Protection From Medical Malpractice " »

I am a Miami lawyer who sues doctors and hospitals on behalf of injured Florida's injured patients and their families for over twenty years. I have sadly watched the legal rights of injured patients get whittled away since I started practicing law in 1991. But nothing compares to the machete that Florida's Governor Rick Scott has wielded in the short time since his election. Take his latest weapon: Florida's brand new Statute §766.1065 "Authorization for release of protected health information" in claims for personal injury or wrongful death.

Florida does not permit injured patients or their families to simply sue negligent doctors. Instead, the law requires families and their lawyers to engage in a burdensome, expensive, tricky and time consuming ordeal known as "Presuit." It forces the injured to obtain medical records, expert opinions and comply with a complex and downright tricky legal maze before a law suit can even be filed. Generally, Presuit has to start within two years of the incident, giving doctors and hospitals the advantage of having a shorter statute of limitations than every other defendant in the State of Florida simply because they are "healthcare providers." In the end, Florida's malpractice law simply eliminates all but the most catastrophic medical mistakes from even getting filed as law suits. In the end, injuries that do not cause permanent and significant changes in the quality of a patient's life nearly always go uncompensated.

Florida's Statute §766.1065 simply raises the bar by requiring that the Presuit procedure also include an authorization for the release of a patient's protected health information that is "potentially relevant" to the claim. In fact, if the authorization is not provided in the specific format required by the statute the entire Presuit will be deemed void.

Furthermore, Section 766.1065(2) states that if the patient or their family decides to revoke the authorization it will void the Presuit notice and potentially destroy a claim if the Statute of Limitations has passed.

This new "authorization" allows the defendant doctors or hospitals and their lawyers and insurance companies to obtain an injured Florida patient's medical records and verbally interact with the patient's other doctors. It requires the injured patient to provide a list of the names and addresses of all healthcare providers for two years before the incident even occurred. That means that if an anesthesiologist performs a femoral block on the wrong leg, the injured patient will have to give that anesthesiologist, his lawyers, and medical malpractice insurance company the names and addresses of the doctors she has seen two years before the malpractice even occurred. Then the defendant doctor and his team can obtain her records and even speak with her doctors regarding treatments or procedures that have absolutely nothing to do with her claim.

As a Key West PI attorney I fear this will have a chilling effect on patient care. I am concerned that if a defendant doctor and his lawyers are permitted to speak with unrelated healthcare providers and tell them that their patient is engaged in a Florida medical injury claim, some doctors will start treating their patients more defensively or discharge them completely for fear of being dragged into litigation.

Section C of the required authorization allows patients to certify doctors they believe are not relevant to the claim for the injuries but still requires the patient to list the providers' names, dates of treatment, examination and evaluation.

An other potential harm of this statute is that it will force patients who have received treatment for issues that are private and not relevant to the alleged Florida medical mistake to disclose personal medical information. The effect of this statute may coerce Florida's injured patients and or surviving family to simply abandon legitimate claims. For example, it a patient has been treated for a Sexually Transmitted Disease, Addiction or Depression, she will be forced by this statute and its required authorization to disclose this information to sue a Fort Lauderdale doctor who did a botched plastic surgery.