Florida Injury Lawyer Blog

According to 60 Minutes investigative reporter Steve Kroft one of the reasons that healthcare costs are sky rocketing is due to pressure on doctors to prescribe "unnecessary tests and treatments." This not only affects American taxpayers in the form of the increased cost of Medicare and Medicaid but has affects on workplace productivity by causing a rise in hospital admissions.

60 Minutes spent more than a year investigating the billing and admissions practices of Health Management Associates (HMA), the fourth largest for profit hospital chain in the country. Last year alone, HMA made nearly $6 billion - half coming from Medicaid and Medicare programs.

Currently HMA owns 70 hospitals in 15 different states. Florida is home to 22 HMA hospitals, from the Lower Keys Medical Center in Key West all the way to Santa Rosa Medical Center in the Florida Panhandle. Additionally, HMA owns dozens of clinics and physician practices.

60 Minutes claims that HMA's business model has been to encourage the admission of patients because the more patients that are admitted the more money they can make. HMA fired back, claiming 60 Minutes "failed to identify a single patient who complained about the quality of care" or who had been inappropriately admitted.

On its website today, HMA posted the admission rates for all patients treated in their emergency rooms from January 2008 to July 2011. It appears that only 13% of patients are actually admitted, compared to 35% admitted who have Medicare. That means that Medicare patients are more than twice as likely to be admitted into the hospital than the general public.

For over 20 years my Miami personal injury law firm sues Florida hospitals for the careless treatment of patients. In my opinion, allowing Florida hospitals to place profits before patients puts us all at risk. For example, we are often asked to investigate cases by families of patients who have died at a Miami hospital. Sadly, we are unable to help many families because Florida's laws protect hospital profits by barring the claims of injured patients and their families.

In Florida for example, to sue a hospital for a medical mistake that kills a patient, the patient has to be survived by a spouse and/or children under the age of 25. Family members of an unmarried patient who dies without children or only adult children typically cannot assert a wrongful death claim against a private Florida hospital. As a result, hospitals frequently escape liability for their mistakes.

If a claim meets the legal requirements and is presented to a jury, Florida's law will cap the amount of money the family is able to recover regardless of the jury's verdict. For instance, Florida's Medical Malpractice Statute §766.118 limits non-economic damages (pain and suffering) against hospitals for the wrongful death of a patient at only $750,000 per claimant (spouse or child) or $1.5 million for all claimants (spouse and all children combined). If the patient dies during emergency services or at a public hospital like Jackson Memorial Hospital in Miami, the claim is subject to additional limitations.

Unlike most for-profit corporations, Florida's hospitals enjoy unique protection from jury verdicts. As long as hospitals can make unlimited amounts of money, they should be held accountable like any other business. Especially when lives are at stake.

Suing a Florida valet parking corporation in for handing over the keys to drunk patrons just got a lot more difficult. Florida's Second District Court of Appeal recently dismissed a case brought by the family of young women who was killed by an intoxicated driver. Nicole Weber went to the Sway Lounger with Michael Price. Price left his car with the valet parking service, Marino Parking Systems, Inc. After consuming a large quantity of alcohol, Price and Weber went to the valet stand to retrieve his car. The valet parking attendants were able to visibly ascertain that Weber was intoxicated, but did nothing to prevent him from getting behind the wheel and driving away with Ms. Weber. Shortly after leaving the parking lot, Price caused a tragic drunk driving traffic accident, killing Ms. Weber.

Ms. Weber's Estate sued the valet service for her wrongful death under the legal doctrine of negligent entrustment. They alleged that the valets had a legal duty to prevent Mr. Price from obtaining his car while drunk. Marino moved to dismiss the case arguing that it had no legal duty, and unfortunately for Ms. Weber, the trial judge agreed. The trial judge apparently relied on the case of Blocker v. WJA Realty Ltd. Partnership, which affirmed that there is no legal duty on valet parking services to prevent access to a vehicle when the driver is intoxicated. Ms. Weber's Estate, believing that the Blocker case was no longer good law, appealed her dismissal to Florida's Second Court of Appeal.

Unfortunately, the Second Court of Appeal agreed with the trial court, affirming the dismissal. Relying upon cases in Illinois, the court found as an essential element for negligent entrustment that the person being charged with legal liability actually has a superior right to control the property in question. The court reasoned that once Weber paid the valet, the valet company no longer had any right to keep his car. The court went as far as to say that the valet attendants and company could have been found liable for conversion had they failed to return the car on demand.

As a Broward car accident lawyer who sues drunk drivers, I am very angry at the Court's decision. I do not agree that anyone who can foresee a situation as dangerous as handing the keys over to a drunk driver and has an opportunity to prevent tragedy should not be held legally responsible. Valet parking attendants are agents to bars, restaurants and shopping malls. If they see a clearly drunk patron attempting to take possession of a car or truck, they should immediately notify the authorities and refuse to hand the keys over. Allowing this corporation and other valet parking companies to escape liability for delivering cars to drunk drivers endangers us all.

I urge Florida's legislature to immediately enact a statute that would directly place liability on valet companies if they hand over car keys to an intoxicated driver. By placing a legal duty on valet companies, we hope that it will prevent other drunk driving accidents like this in the future. We express our condolences to the Weber family and applaud the efforts of her great North Florida car accident lawyers for trying to reverse this unjust and unfair law.

Today is my 47th Birthday. How did another year pass so quickly? As I sit behind my desk at work, I want to reflect for a moment on where I am and where I am going.

I recently finished reading Walter Issacson's biography of Steve Jobs. My father recommended it for me as something I had to read. As usual, he was right. It detailed the life of an extraordinary man with incomparable vision and creativity that seem tortured by extraordinary demons both professionally and personally.

Steve Jobs changed the world and deserves to be recognized in the same breath as Da Vinci and Einstein. But according to the book, he and his family suffered a lot on his journey. Ultimately, he died a slow and painful death with many amazing projects pending and undiscovered.

I took many things from the story of his life that both impressed and resonated in me as a lawyer, business owner, father, husband and son. 1- the need to balance my vision for helping people with my law firm's profit; and 2- the importance of collaborating with others and recognizing their contribution to my success.

Jobs passion and vision was unwavering. He had particular ideas on how his products should look, feel and function. And he stuck by his beliefs when virtually the entire computer-business world disagreed. At one point, he even was fired from his job as CEO of Apple, the company he co-created. Most importantly, occasionally and reluctantly he conceded his vision for perfection in order to make his business profitable. With these profits, Apple continued to innovate and grow.

As a Miami personal injury attorney, I sure can relate. Every day, I meet clients, hear the facts of their cases and research the law. I ask respected colleagues and experts for their opinions of the case and ultimately, have to rely on my own instincts as to whether or not to go to trial or when and how much to settle a case for. If I am wrong it can be very costly for my clients and for the members of my team, our vendors and their families who depend upon our success to survive.

I learned this year, for the very first time in my career that I had to prioritize case evaluations and selections on whether or not they made sense for my law firm as a business. Not too many lawyers like to admit and certainly not publicly that the practice of law really is a business. This is especially true in personal injury law, because lawyers take cases on a contingency fee basis, fund the case costs up-front and share in the results with their clients. If I take too many cases on, based upon my personal principles of justice, without regard to the return on investment for my law firm; I could go bankrupt. Because personal injury contingency lawyers not only have to win, they have to collect, in order to get paid.

I have been suing Florida doctors and hospitals for injuring and sometimes killing patients for over twenty years. When I started, in 1991 one of my very first cases involved a little boy who had a botched circumcision at Jackson Memorial Hospital. In those days, it was rare that a doctor could or would practice in Florida without medical malpractice insurance. Today, most doctors "go bare" with the hope that it will discourage any lawyer from taking a case against them.

Sadly, Florida law permits doctors to practice without malpractice insurance. Buried in §458.320 of the Florida Statutes is a provision that requires doctors to post a sign prominently in the reception area of their office proclaiming that they have decided not to carry medical malpractice insurance. Doctors who decided to do this must pay any judgment up to $100,000 if they do not have hospital privileges or up to $250,000 if they do. This may seem like a lot or even enough, but for most cases of medical mistakes, it barely compensates an injured patient or surviving family.

The real problem in Florida is that few lawyers can afford to take on a complex medical malpractice case against an uninsured doctor. Not because they are afraid they will not win, but because of the uncertainty of collecting once they do. The average medical malpractice case in Florida can cost nearly $100,000 in time and money to get to trial. Experts typically charge thousands of dollars to simply review a case and ten times that to travel and testify at trial.

Because there are so many obstacles and limitations placed on the legal rights of Florida's injured patients that most medical malpractice cases do not make business sense for patient's lawyers. Therefore, many injured patients in Florida are unable to obtain legal representation or any compensation for medical mistakes that result in injuries, lost time from work, additional medical expenses, pain and death.

Learning to balance and temper my desire to help those who have been injured by uninsured doctors along with my obligations to run a profitable law firm has been one of the most painful and difficult lessons for me to learn this year.

Understandably, many might question whether they would want to hire a lawyer that thinks of their case as a business investment. In reality you need to hire a Florida lawyer who not only believes in your case but has the means to fund and staff it to a successful conclusion.

Recently Aronfeld Trial Lawyers has begun to co-counsel with Whitfield, Bryson & Mason a national law firm with offices Kentucky, North Carolina and Washington, D.C. on a number of complex cases. I am excited about our new collaboration with these brilliant lawyers and talented paralegals. This alliance allows both firms to continue to provide our clients with the best possible legal representation. Amanda Mkamanga, their spectacular complex litigation paralegal, is already working in Miami on a number of our cases and helped edit this blog.

Jobs was often criticized for taking credit for things that were done by his team. Frequently, I undeservedly get all of the attention for the success of my law firm. But unlike Jobs I want to make sure I publicly acknowledge and thank my entire team for their loyalty, commitment and hard work. I am grateful to Kitty, Brandon, Dom, Gloria, Maria, Manny, David and my dear friend and our newest family member Bob Brown for all of their help in providing our clients legal representation.

Thank you to Elliott and Ellen at Worldwide Reporting Service and to Ian and Tara at Saurian Litigation Support for transcribing and videotaping all of our depositions. And thank you Urs Ebner for keeping our computers running.

And of course, my wife Dina for her tireless work with Lawyers to the Rescue and the Attorney Breakfast Club. Thank you all.

As a North Miami Beach accident lawyer, I see Kathleen Miskell accidental death in Florida as a warning to anyone who considers para-sailing a low risk amusement ride. Para-sailing is common up and down the East Coast,at most major beach-side resorts and cruise-ship destinations.

Para-sailing involves being harnessed to a parachute while being towed by a boat. Mrs. Miskell and her husband Stephen were strapped side by side, para-sailing over 200 feet high off Pompano Beach, when her harness suddenly malfunctioned sending her pummeling into the ocean. Somehow, the 28 year old, survived the fall, but died shortly after arriving at the hospital. According to the Broward Office of the Medical Examiner, the official cause of death was drowning and multiple blunt force injuries.

Mrs. Miskell's death is being investigated by several entities including the Florida Fish and Wildlife Conservation Commission, the National Transportation Safety Board, the Broward Sheriff's Office and the United States Coast Guard.

Like many amusement activities consumers hope and believe that para-sailing is regulated and inspected by the state. Sadly it is not. There are no state wide regulations, training or license requirements to operate a commercial para-sail. In order to conduct a para-sailing business in Florida, operators need only have a valid boating license and a seaworthy vessel.

In 2007, a 15-year-old girl died in a Pompano Beach para-sailing accident. Her para-sail rope broke and she and her sister slammed into a building. Her sister survived. The City of Pompano and the State of Florida both realized that there was no regulations for para- sail concessions; but failed to pass any laws to protect consumers.

As an Orlando amusement park injury attorney I hope that Mrs. Miskell death causes Governor Rick Scott to implement mandatory regulations for para-sailing concessions. I believe that owners should be required to have passed a written test, have lifesaving equipment available and be subjected to periodic equipment and vessel inspections. Not only would this plan hopefully save lives; but would put more Floridians to work as para-sail inspectors. Their salaries could then be funded by the licensing, permits and fines paid by the more than 120 Florida para-sailing companies. I think this would be a perfect solution for many of those who have had their paychecks cut by the BP Oil spill.

The forensic pathologist is perhaps the most crucial witness in obtaining evidence when suing a Florida hospital or doctor for causing the wrongful death of a patient. Forensic pathologists are medical doctors that are trained to figure out how and why a person died.

Not surprisingly, there is a current shortage and a huge demand for forensic pathologists in the United States. Although the U.S. currently has over 130 medical schools, only 37 are accredited to train forensic pathology. Currently, 45 states have accredited medical schools yet only 27 provide a direct path for medical students wishing to become pathologists. Medical schools that have accreditation for pathology are poorly funded; the result is that only 30-40 doctors get Board Certification in forensic pathology a year.

According to the Scientific Working Group for Medico-legal Death Investigation, the lack of doctors, medical school programs and funding account for the low national autopsy rate of only 8.5%. The problem is most felt in rural areas that do not have the tax base to justify funding a full-time pathologist. It also means that many hospitals have abandoned the use of hospital autopsies. Hospital autopsies have long been relied upon to assess the quality of medical care as well as the evaluation of adverse outcomes. The situation is made worse by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) which is an "independent, not for profit organization" that accredits and certifies more than 19,000 medical providers, hospitals, organizations and programs in the United States.

Currently the JCAHO requires hospitals to maintain a minimum autopsy rate of 20%. Tragically, that means the majority of families baffled by an unexpected or unexplained death of a loved one at a Florida hospital must do their own expensive investigation, including paying for a private autopsy. It also means that many Florida hospitals and doctors are never held accountable for the accidental death of patients. Even worse, hospitals are not learning from their mistakes which would otherwise serve to improve the quality of medical care for us all.

As a Miami hospital injury lawyer, I believe that medical insurance should contribute to the cost of autopsies for patients who die under suspicious circumstances. It is in their best interest to improve the quality of medical care.

In Florida, a private autopsy can cost thousands of dollars. The Miami-Dade Medical Examiner charges $5,000 per case for a private autopsy. This does not include laboratory testing, transportation, or storage of the body. Florida Statutes §406.11 places certain types of death under the jurisdiction of the medical examiner, such as: criminal violence; accident; suicide; or when a patient dies in apparent good health and is unattended by a practicing physician; or other recognized practitioner.

Our Florida hospital death and injury lawyers are experienced helping families investigate the sudden and untimely death of patients. Obtaining an autopsy by a qualified pathologist is very often the most important piece of evidence in establishing the cause of death.

If you suspect that a loved one has died as a result of a Florida doctor or hospital error, we urge you to immediately consult with the medical examiner or coroner in your jurisdiction before having the body embalmed or buried. Often, embalming can affect the accuracy of an autopsy because internal organs can get punctured in the process.

I was deeply troubled to read about the recent Florida wrongful death case of Christopher Milanese. Mr. Milanese was arrested and taken to the Boca Raton Police Department, where he was issued five (5) traffic citations, none of which were for driving under the influence.

The Police Department called a taxi cab for Mr. Milanese and released him while he was still intoxicated. Apparently, the taxi driver did not see Mr. Milanese and left the station. Mr. Milanese attempted to walk home but only made it as far as the nearest train tracks, 50 feet from the station's door, where he was killed instantly by an oncoming train. At the time of his death, Mr. Milanese's blood alcohol level was .199.

Mr. Milanese's family sued the City of Boca Raton, claiming that the Police Department owed Mr. Milanese a duty not to release him from their custody while impaired and that the Police knew of the danger of the train tracks and failed to warn and protect him. A Palm Beach County Circuit Court Judge heard the arguments and dismissed the case. An appeal to Florida's Fourth District Court of Appeal followed.

The appellate court agreed with the trial court and stated that the Police no longer had a duty to care for Mr. Milanese once he was released from custody, and that he did not face a risk of harm that was created by the Police. Citing as precedent, to support its decision, the court relied on the legal theory that Mr. Milanese was in no greater danger or no worse position than if the Police had not been involved at all. In other words, "the State does not become the permanent guarantee of an individual's safety by having once offered him shelter."

Our Miami hospital injury law firm is currently suing a Miami hospital for the alleged negligent discharge of a patient, being treated for alcohol abuse and depression, who committed suicide. Our case was also dismissed by the trial court and is currently on appeal to the Third District Court of Appeal. As a lawyer who sues Miami doctors and hospitals for inappropriate care of high risk patients, I find the facts of Mr. Milanese's case painfully similar. The Boca Raton Police placed Mr. Milanese in an unreasonable and foreseeable risk of harm, considering that he was in their care and custody at a time where he was vulnerable, impaired and unable to protect himself.

First, and foremost, I do not understand why the Police would release a person while they are inebriated. I think that, alone, is grounds for the case to proceed to a jury. Second, the Police did not escort him to the taxi or offer to take him home, they simply opened the door and let him walk out. Third, the Police knew he was impaired or drunk and that an active railroad track was only 50 feet from the front door. That is simply a zone of risk that the Police have an obligation to protect him from.

Once the police felt that Mr. Milanese was too drunk to be behind the wheel of his own car, and took him into custody, they undertook the responsibility to protect him from danger, even if the danger was himself. Once they undertook the care of Mr. Milanese, by calling him a taxi cab, they should have made sure that he was safely on his way. Simply ejecting an intoxicated man into the dark of night, with an active railroad less than 50 feet away, is wrong, and the Boca Raton Police Department should be forced to explain this to a jury, at the very least.

The Undertaker's Doctrine, in Florida, is a common law doctrine that provides, that "in every situation where a man undertakes to act or pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person may not be injured by any force which he sets in operation, or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another, just as if he had bound himself by an obligatory promise to exercise the required degree of care."

As a Florida wrongful death attorney, I am troubled by this opinion for a number of reasons, but perhaps the single most offensive issue is the notion that a trial judge intercepted justice, by preventing a jury from even hearing the facts. The case was dismissed without allowing a Palm Beach County jury to listen to all of the evidence. I fear that this case will send a message to police, hospitals, schools and businesses that it is okay if someone, who is intoxicated, misdiagnosed or treated, is hurt or killed, as long as it does not happen on your property.

In cases where a Florida hospital or doctor is accused of causing the death of a patient, the patient's family has to prove not only that the healthcare provider made a medical mistake but that the mistake, in fact, proximately caused the patient's death.

Camillus Alfred, a Broward County Florida husband, recently sued Hollywood Medical Center alleging that they were responsible for the death of his wife, Ursuline Alfred. A Fort Lauderdale jury agreed and entered a verdict against the hospital. The Florida hospital appealed the verdict, to the Fourth District Court of Appeal, and argued that the Judge should have entered a directed verdict and should have never allowed the case to go to a jury. The hospital claimed that Mr. Alford was unable to prove that the hospital's nursing staffs' (not the defendant doctor who incidentally settled while the jury was deliberating) acts "more likely than not" caused his wife's death.

Apparently, Mrs. Alfred died after unsuccessful attempts to intubate her caused her to go into cardiac arrest. Intubation should only take seconds and is a method of delivering increased oxygen to the heart.

The Appellate Court in Hollywood Medical Center, Inc. d/b/a Hollywood Medical Center v. Camillus Alfred, as Personal Representative of Ursuline Alfred, reversed the trial court by stating that there was no evidence in the record that the nursing staffs' negligence was a cause of death or that it was a nursing obligation to intubate a patient. Moreover, even though there was proof of nursing mistakes, there was no evidence that any of the failures affected the ultimate outcome.

Florida's medical malpractice law is outlined by Florida's Supreme Court in the seminal case of Gooding v. Univ. Hosp. Bldg. Inc., 445 So. 2nd 1015, 1018 (Fla. 1984). It requires that a claimant in a medical malpractice case prove that the injury "more likely than not" resulted from the defendant's negligence in order to establish a jury question on proximate cause. When a plaintiff cannot prove proximate cause in Florida, a defendant is entitled to a directed verdict.

Many mistakes are caused by Florida's healthcare providers every day from birth trauma injuries to bed sores. Often times, these mistakes result in injury, disfigurement, and death. However, if a claimant is unable to prove that the mistake "more likely than not" caused the injury or death, the injured patient will not be legally entitled to submit their claim to a jury. As such, proving causation is often the most difficult element in litigating claims on behalf of Florida's injured patients.

Our Florida patient advocates are dedicated to holding hospitals and doctors responsible for the harm caused by their negligence. We hope that this ruling will not discourage doctors and hospitals from providing Florida's patients the best healthcare possible.

Being a Florida personal injury trial lawyer can be very painful, especially when an attorney puts his heart and passion into a case. Yet, in every case, no matter the type or the facts, there will be a winner and loser. Much like a boxing match, with a knock-out punch, someone will be left standing over the devastated body of an opponent.

In a Florida medical malpractice wrongful death law suit, when a plaintiff or the plaintiff's family loses by either an order of the court or jury verdict they have in essence, lost twice. First, whatever injury and damages they have incurred as the result of someone's carelessness or something's misuse may leave scars, disfigurement or disability--not to mention the economics of time lost from work and medical expenses. The second, and often more painful loss, occurs when a judge or jury tells the injured they are not entitled to compensation.

After having practiced hospital injury law in Florida on behalf of the injured or disfigured or deceased for over twenty years, I can report that the majority of Florida's laws are carefully written to protect the wealthy, powerful and educated, not the most vulnerable. The sick and dying are often denied access to the courthouses of Florida by a complex scheme of laws found in the Florida Statutes. Doctors and hospitals enjoy a degree of protections and insulation from accountability that is unparalleled.

Today, my visit to the Miami-Dade Courthouse served as a cold, dull reminder. Our law firm has the honor of representing the family of a nurse who committed suicide after being, as we believe, negligently and carelessly cared for by a Miami hospital's addiction treatment center. The nurse suffered but functioned for over twenty years with alcohol addiction and depression. Rather than admit him to an extended outpatient residential program, he was sent home after a rapid, chemically-manipulated detoxification from alcohol. He was placed in an evening program run by the hospital that met for several hours per night, and only four nights per week. Within a few days, he committed suicide by blowing his brains out with a handgun.

We sued the hospital, the doctor who sent him home, and the social worker who had the responsibility of caring for him in the outpatient evening program in Miami for the suicide death. The Defendants took a hard-lined position and moved to dismiss the entire law suit with prejudice, based upon a number of Florida cases that limited the responsibility of healthcare providers for the suicidal death of a patient. While I believe our facts are different and do not believe that this is the appropriate forum to argue the merits of this particular case, I am saddened to write that the Judge agreed with the Defendants and dismissed the entire case with prejudice. In other words, no jury will ever get to hear the facts and decide whether the hospital was wrong. It means that a widow and two children will not have the opportunity to present their claim to a Miami-Dade jury to decide if they are entitled to justice.

Instead, based upon Florida's Rule of Civil Procedure 1.140(4)(b) the court is permitted to dismiss a claim that does not state a cause of action. Apparently, this particular judge's interpretation of the law is that the suicide of a patient while outside of the facility or custody of the hospital but while still under the facility's care, no matter the reason the patient is outside the facility or custody, is not a legal basis for a law suit.

If returning to the office after a loss of this magnitude is painful, the phone call to the awaiting clients who have placed their hopes and needs in our hands is pure torture. Again, the second loss is sometime worse than the first.

Thankfully, the Florida Rules of Civil Procedure allow for appeals from rulings that either side does not believe to be correct. We intend to appeal this ruling to Florida's Third District Court of Appeal, with the hope that our clients will not be denied an opportunity to have the justice they deserve.

Florida's Fourth District Court of Appealleft little doubt who side they are on when they recently dismissed the claim of Charles Burns on behalf of the Estate of Enrique Casanovas for a Florida hospital's medical malpractice and wrongful death that occurred at Palms West Hospital.

Mr. Casanovas was taken to the Emergency Room of Palms West hospital complaining of abdominal pain and nausea and was vomiting blood. He was found to have high blood sugar and was in diabetic ketoacidosis. The ER doctor knew he needed to be seen immediately by a gastroenterologist; however there were none at the hospital.

Sadly, the hospital tried to contact every GI on staff, all of whom refused to come because Mr. Casanovas was uninsured. When no doctors came to Mr. Casanova's aid, the hospital was forced to have him transferred to North Broward Medical Center where he died.

His estate sued Palms West Hospital and alleged that they were negligent in allowing doctors on staff that would not come to the aid of an uninsured patient. Like most hospitals, Palms West had a contract with gastroenterologist to provide emergency room services and therefore had the obligation to provide those services to patients like Mr. Casanovas regardless of insurance. The Complaint alleged that the hospital knew that these GI docs would refuse to come if called on an uninsured patient but allowed them to stay on staff anyway.

The Complaint against the hospital was for negligent retention of these doctors and failure to ensure that the hospital had adequate and competent staff. The Estate did not comply with Florida's Medical Malpractice Act found in Florida Statute §766.203 and sued the hospital on standard negligence and malpractice theories. The trial court dismissed all of the counts for failure to comply with the presuit requirements of the Florida Malpractice Act but allowed the two remaining causes of action to proceed.

Palm West filed a petition for certiorari for failure to dismiss the remaining two counts and the Fourth District Court of Appeal accepted the petition for certiorari relief in that they felt that irreparably injury would occur if the case proceeded to trial. The Fourth reversed the trial court by finding that the remaining claims for rendering or failure to render medical services do in fact arise from the Florida Medical Malpractice Act and that the trial court departed from the essential requirements of law by not dismissing the entire law suit for not complying with the presuit requirements.

While not every injury that occurs in connection with medical care and treatment is subject to the Malpractice Act, our lawyers believe that when if at all possible, one should try to comply with the presuit requirements to avoid running the risk of having a case dismissed. As a Fort Lauderdale lawyer who sues doctors and hospitals for malpractice I am saddened by the Fourth District Court of Appeals ruling in this case, especially in light of Mr. Casanova's death and the callousness of both the hospital and the doctors who refused to come to his aid.

Continue reading "Florida's 4 DCA Allows Hospital To Escape Accountability Failure to Treat Uninsured Patient" »

Florida's personal injury defense lawyers must have all gone to the same seminar and came back with a concerted effort to try to intimidate and harass Plaintiffs and their attorneys with the use and misuse of Rule 57.105 of the Florida Statutes. Section 57.105 is found in the Florida Statutes and serves to provide attorney's fees and sanctions against lawyers and their clients. I am a lawyer who sues Florida's hospitals for injured patients for over twenty years. I have never before seen the flurry of Rule 57.105 motions that I have witnessed in 2011. They have been misused and abused and meant for nothing more than a scare tactic to dissuade the zealous representation of the injured.

According Rule 57.105, it is appropriate to award sanctions in either of the following cases:

Frivolous Facts or Law

If a court finds that a lawyer or party "knowingly" brought a claim or defense that is unsupported by material facts or the then existing law then it can be argued that the claim or defense was frivolous. The court must specifically find by a preponderance of the evidence that the attorney knew that the claim was essentially baseless or that the law simply does not support the action.

Unreasonable Delay

In addition, a motion for 57.105 can be brought by any party at any time in a Civil proceeding in response to a pleading or discovery demand that is done primarily for the purpose of unreasonable delay. If the court finds that the opposing side's actions are frivolous it can award damages that include attorney's fees, and other sanctions as a result of the improper delay.

One exception to the rule is if the Court finds that the party making the argument subject to the motion for sanctions had done so with a "good faith" in an effort to extend or modify the then-existing state of the law or is trying to reverse existing law to establish new law. In order to try to protect parties, there is a 21 day "safe harbor" period where parties are notified of the intention to challenge a particular paper, pleading, claim or defense. This gives the accused an opportunity to reconsider his argument and withdraw the offensive pleading without the risk of having to pay sanctions and attorney's fees.

Our Broward County personal injury law firm believes that laws are meant to be followed but have to be challenged when they prevent justice from being served. For example, same-sex marriage is illegal in Florida. It deprives many partners of the loss of support and services when their significant others are injured or killed due to the carelessness of a Florida business owner, physician or hospital.

The Florida law that prohibits same-sex marriage is an example of a Florida law that should be challenged by plaintiff's lawyers in every applicable case. I believe that lawsuits should be filed on behalf of same-sex partners to force courts to address this issue as both unconstitutional and as a deprivation of due process and equal protection. As a Florida injury lawyer I encourage all lawyers to bend unjust laws until they break; challenging our legislature to provide equal justice for every single member of our society, rather than just protection for the few.

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.

As a Fort Lauderdale lawyer who sues doctors and hospitals, I find Florida Governor Rick Scott's obsession and interpretation of the United States Constitution's Second Amendment frightening. Since becoming Florida's Governor, Rick Scott has done little to make Florida's patients safer.

When he signed the Firearm Owners' Privacy Act into law he sought to prohibit doctors from asking if their patients had access to guns. Governor Scott claims that the law is needed to protect patients from being "harassed" by nosy doctors wanting to know and note if there are any weapons in the house. The law goes on to provide a means to discipline doctors if they violate the law or affect the patient's insurance premiums.

Of course the National Rifle Association is fully supporting Governor Scott on this issue. The most significant critics of this law is the Florida Chapter of the American
Academy of Pediatrics. The AAP claims, when a gun is kept in a home it is 43 times more likely to kill someone known to the family than to kill someone in self-defense.
The risk of suicide is 5 times more likely when a gun is kept in the home.

It is impossible for our Florida personal injury law firm to imagine a scenario where a dispute would arise between the NRA and our governor against a group of pediatricians--but that is precisely what is happening. United States District Court Judge Marcia Cooke ruled that Governor Scott's law was invalid stating that Doctor's have a First Amendment right to inquire about fire arms. Governor Scott is appealing the ruling.

Sadly, our Miami attorneys who represent families of suicide victims have seen first hand the devastation that can happen when untreated or misdiagnosed patients have access to a gun. We agree with Judge Cooke's ruling and urge Governor Scott to reconsider his views on this issue. We believe that patients and their families should be provided with the best and safest medical care. Governor Scott has no business interfering with the doctor-patient relationship, especially when the safety of patients and their families is in question. There simply is no reasonable explanation to pass a law that prevents doctors from simply ask if a gun is in the house.

As a Florida hospital injury attorney I am surprised by the number of gall bladder removal procedures that are performed in our country on a daily basis. The procedure to remove a gall bladder is a called a cholecystectomy and according to the Mayo Clinic carries "a small risk of complications."

Laparoscopic Cholecystectomy, or "Lap Choly," is a procedure performed to treat patients who may have a gallstone in the gallbladder, bile duct or inflammation in the gallbladder or pancreas. It is usually performed by general surgeons using a camera. The procedure is done under general anesthesia.

In 1985, the first laparoscopic cholecystecomy was performed. In 1992, the National Institute of Health concluded that laparoscopic cholesystecomies are "safe and effective" in the treatment for most patients. Laparoscopic surgery is very popular with both patients and their insurance companies. Since the procedure is performed without a large incision, patients are usually able to return home from the hospital and go back to work.

Nearly 750,000 laparoscopic cholecystectomies are performed annually in the United States, making it one of the most common elective surgeries. Unfortunately, there is a serious risk of injury or death associated with a laparoscopic cholecystectomy that many patients are unaware of until after the surgery. This is the possibility that there could be an intra-operative injury to the bile duct. This happens with greater frequency in laparoscopic procedures compared to open procedures when the surgeon is unable to fully visualize the anatomy and cuts the wrong duct.

If the wrong duct is cut in a laparoascopic cholecystecomy it must be recognized and repaired immediately. Failure to recognize an injury to a duct can lead to infection, excessive scarring and even death.

Our South Florida hospital injury law firm recommends that before undergoing a procedure to remove a gallbladder to ask your surgeon several important questions:

1. How many procedures have you performed?
2. How many times have you injured or cut the wrong duct?
3. Will the procedure be videotaped? Surprisingly many doctors and hospitals refuse to videotape the procedure for fear that it will be used to prosecute a Florida medical malpractice case. The videotape is essential information that can be provided to a reconstructive surgeon in case of a mishap.
4. Determine who will be assisting the surgeon in the surgery. The role of the surgical assistant is crucial in identifying the correct anatomy.
5. Determine if the hospital is a tertiary facility. This indicates the level of care that the hospital is qualified to provide.
6. Request a surgeon familiar with duct repairs to handle the case in the event of a duct injury. Often general surgeons are unfamiliar with the distinctly different technique required to repair a bile duct injury.
7. What is the average length of stay at the particular hospital.
8. What is the number of hospitalizations for the procedure.
9. Is the surgeon Board Certified in general surgery?
10. Is the surgeon insured for malpractice?

As a Miami lawyer who sues surgeons, I especially recommend that following the procedure you advise your surgeon, nurse and attending physician in the event that your pain gets worse, you have a fever, vomit, experience diarrhea, drainage from the incision or no bowel movement. These might be symptoms of a bile duct injury that can be life threatening if not treated immediately and properly.

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Our Miami law firm currently represents a Miami family for the wrongful death of a Miami husaband and father following a botched cholecystectomy at a North Shore Medical Center, a local hospital. According to the Agency for Health Care (AHCA) website, North Shore Medical Center had 71 hospitalizations for laparoscopic gall bladder removal for patients age 18-64 in 2010 with the highest cost of hospitalization of $89,778 and 5.2 days of stay.

As a Coral Gables hospital mistake lawyer, I am confused by President Obama's decision to remove the National Practitioner Data Bank (NPDB) from the web. The NPDB provided the public with various information about doctors, disciplinary actions and malpractice verdicts in general. Patients, lawyers and journalists have used the data bank to obtain information about doctors and trends in medical malpractice.

The NPDB has valuable information and reports. For example, it shows that, as of April 2011, Florida has received 126 medical malpractice reports against nurse midwives and 132 medical malpractice reports against nurse anesthetists. Unfortunately, the information is only available to hospitals, health care providers, State and Federal health care agencies, and quality improvement organizations. Patients and their attorneys are only eligible to receive certain information under very limited circumstances.

In response to a complaint lodged by a neurosurgeon, the Health Resources and Services Administration, which is an agency of the Department of Health and Human Resources removed public access to the data bank on September 1, 2011.

The Kansas City Star recently reported that many doctors with extensive history of malpractice often go undisciplined. The Star reviewed thousands of records and found that 21 doctors practicing in Kansas and Missouri had at least 10 malpractice payments but never received any discipline by the state health agency.

Our Florida injured patient law firm believes that it is important to provide the public access to transparent information regarding both doctor and hospital conduct to ensure responsibility and keep the public focused on fundamental issues of patient safety. By blocking the public's access to crucial information President Obama and the Department of Health and Human Resources will allow doctors and hospitals to continue to quietly make mistakes that harm and sometimes result in the wrongful death of a patient without public accountability.

Surviving a serious car or motorcycle accident in South Florida with only minor injuries is nothing short of a miracle. However, in Florida, those responsible for causing car accidents are also legally responsible if the injured subsequently suffers sub-standard medical care. Our Florida car crash injury law firm is currently investigating a potential claim where a young mother who survived a crash with seemingly minor injuries may have been exposed to potentially negligent medical care which led to her sudden death. She leaves behind a small son and many unanswered questions.

The Florida Supreme Court ruled in 1997 in the landmark case of Stuart v. Hertz Corp. that if one's injuries are aggravated or increased by a medical mistake, the original tortfeasor is liable. The"Hertz Doctrine" has been applied in cases where the defense argues that the care and treatment a claimant received was not reasonable and necessary. In Nason v. Sharanksi, Florida's Fourth District Court of Appeal reversed a trial judge for failing to give the Hertz jury instruction after the defendant in a car accident tried to allege that the plaintiff's neurosurgeon, Dr. Charles Tehofilios, a board certified neurological surgeon performed an unnecessary removal of a herniated disc and two spinal fusions.

Accordingly, those who cause injuries in Florida car accidents are now responsible for any additional injury, or even death, caused by the subsequent medical treatment. This is particularly important in terms of signing releases in car accident claims before a person's injuries are fully diagnosed or treated. Many insurance companies include language in car accident releases that could be used to prevent claims against medical providers for injuries that may not have even occurred yet or for damages that are yet to be diagnosed. We strongly recommend that before signing any release for a car accident that you have it reviewed by experienced and competent Miami car accident lawyer that can protect your legal rights.

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