Medical Malpractice in Florida: Supreme Court Rules in Birth Trauma Case

Forever . . . Florida’s State-run agencies, like public hospitals or the DOT, have long hidden behind the shield of the sovereign immunity statute, which limits the amount of recovery an injured person or grieving family can obtain in a civil personal injury or wrongful death lawsuit. The statute has also limited the fees that lawyers could charge to sue these agencies–making such cases economically impossible for many of the best trial lawyers to accept.1 The one exception is to get a claims bill passed, which is essentially a special law that permits payment for more than the statutory damage cap. Claims bills have been traditionally expensive and very difficult to get passed in all but the most catastrophic cases.2 Until now. Supreme Court Rules in Birth Trauma Case This week Florida’s Supreme Court reviewed a case that arose out of the traumatic birth injury of Aaron Edwards.3 Because of the negligence of employees at Lee Memorial Hospital, he sustained a catastrophic brain injury. He hired another Florida medical malpractice law firm to sue the hospital, under a standard contingency-fee agreement, which provided for a payment of 40 percent of any recovery if a lawsuit was filed, plus costs. The agreement also stated that “[i]n the event that one of the parties to pay my claim for damages is a governmental agency, I understand that Federal and Florida Law may limit the amount of attorney fees charged and in that event, I understand that the fees owed shall be the amount provided by law.” The case proceeded to a five-week jury trial in 2007. The jury found Lee Memorial...

Depositions of Medical Malpractice and Personal Injury Cases in Florida

In personal injury cases in Florida, depositions—interviews or interrogations conducted by lawyers of the claimants, defendants, and witnesses—are used to understand and evaluate the facts of a case. They are also inevitably used as evidence to persuade either the judge or jury to rule in favor of one side over the other. One simple question answered in a particular way often changes the outcome of an entire case. How, with whom, when, and where a deposition is conducted is often hotly contested and frequently litigated between parties. For example, if one side does not agree with the location, time, or duration of a deposition, as well as who the witness is, the question being asked, or even a document it has been requested to bring to the disposition, that side is able to seek assistance from the court if it feels it is being needlessly harassed or burdened by the other side. This sort of assistance or protection comes in the form of a request called a Motion for Protective Order. For example, recently in a Florida medical malpractice case, a Certified Registered Nurse Anesthetist (CRNA) was being sued by a patient who alleged that he was burned by a heating pad that was improperly placed and monitored during a procedure. The nurse had been deposed (interviewed) in another case that was brought by the patient against different defendants for the same incident. Now the nurse himself was being sued, and the patient’s lawyers wanted to take the nurse’s deposition—not as a witness, but as a defendant party. As a personal injury trial lawyer in Florida, I understand this....

The Deposition of the Plaintiff in a Florida Medical Malpractice Claim: The Attorney Client Privilege

Depositions of plaintiffs are supposed to be simply sworn interviews by lawyers who represent the defendants in civil cases. The purpose is to question the claimants, evaluate their credibility and jury appeal, and to learn about their background, education, and understanding of the facts of the case and damages. Over the last 25 years I have attended hundreds if not thousands of these legal proceedings. Some have lasted no more than an hour, and others have gone on for days. Often they are pleasant; however, on occasion they can be quite brutal for the witnesses as well as the lawyers defending them. Recently a Florida medical malpractice claim was filed against a hospital in Homestead, a South Miami-Dade County facility, by a family on behalf of a boy born with severe disabilities. The mother alleged that the disability was caused by either the inappropriate care she received while pregnant or medical malpractice that occurred during her son’s birth. The mother was questioned by the hospital’s medical malpractice defense lawyers. The questions asked are typical of those we are encountering more frequently in not just medical malpractice cases, but also car accident claims, slip and falls, and lawsuits brought by passengers injured in cruise ship accidents. In every personal injury case, the claimant’s medical records from before, during, and after the alleged incident become crucially important evidence. Skilled defense lawyers will go through thousands of pages of records looking for any inconsistencies in the history given after the incident, in discovery answers like interrogatories, or in the plaintiff’s deposition. The classic smoking gun emerges when the plaintiff has failed to disclose...

Selecting Expert Witness in Personal Injury Cases

EXPERT WITNESSES Effective use of an expert witness in personal injury cases can make the difference between winning and losing. In some cases, like medical malpractice, expert witnesses’ opinions are required even before a lawsuit can be filed. I have found the selecting of appropriate experts to be vitally important. Many lawyers, depending on the area of law they practice, maintain a book or bank of experts they call upon with regularity.  For instance, an auto insurance defense firm or a cruise line may use the same three or four experts in different cases several times a week.  It is not unusual, for instance, to see a neurologist or an orthopedic surgeon hired by a defense firm or cruise line spending more time and making more money testifying than actually seeing and treating patients. While this may also be true of the plaintiff’s practice, I can only base my experience on what I have seen and heard. I personally try to utilize different doctors or experts as often as I can, so as to deflate the defense’s potential arguments of bias or prejudice. The benefit of using tried and true experts versus the risk of the unknown is difficult for any lawyer to weigh. Therefore, thoughtful selection of experts is important in maximizing your client’s potential for success both in and out of the courtroom. Perhaps the most valuable trait I look for when selecting an expert is his or her ability to articulate opinions in a manner that is believable, likable, modest, and honest. In nearly 25 years of litigating cases across the United States, I think I...

Injured on Cruise Ship, Passenger Killed by Doctors Onboard

For decades, passengers who have been injured on cruise ships–like Carnival, Royal Caribbean, Celebrity or Norwegian–and received negligent medical care from the ship’s doctors have had a difficult if not impossible time holding the cruise lines accountable for the doctors’ errors.  Thankfully, this week a United States Appellate Court has issued an opinion that will make it far easier for passengers injured on cruise ships to sue cruise lines for medical malpractice. The case involved an elderly cruise ship passenger who fell and bashed his head while on a cruise on RCCL’s Explorer of the Seas, which was docked at port in Bermuda. The passenger, Pasquale Vaglio, was wheeled back onto the ship, where he sought treatment in the ship’s medical center. The treatment was so negligent that he fell into a coma and died a week later. According to the court’s records, the ship’s health care providers failed to diagnose his cranial trauma by not conducting any diagnostic scans.  The ship’s doctor did not even examine Mr. Vaglio for nearly four hours. Mr. Vaglio’s daughter, Patricia Franza, sued Royal Caribbean Cruises, Ltd. (“Royal Caribbean”) for vicarious liability for the purported negligence of two of its employees, the ship’s doctor and its nurse, under one of two theories: actual agency (also termed respondeat superior) or apparent agency. She filed her lawsuit against Royal Caribbean in the United States District Court for the Southern District of Florida in Miami, under 28 U.S.C. § 1333 and the general maritime law, but District Court judge Hon. Judge Joan A. Lenard dismissed her complaint on June 14, 2013 by applying the longstanding Barbetta...

Supreme Court Declares Florida’s Medical Malpractice Caps Unconstitutional

I am a Florida medical malpractice lawyer who helps patients and their families when one of them has been injured or killed by careless doctors and hospitals. For most of my legal career, I have been unable to get victims full justice for their pain and suffering. Since 2003, Florida’s healthcare industry has slept soundly, knowing that regardless of what verdict a jury may return against them, they would be insulated by Florida Statute §766.118 and thereby would not be held fully accountable to pay any amount in excess of $500,000 for an injury, or $1,000,000 for the death of a patient, regardless of how many children or dependents were left behind. Thankfully, all that has now changed. The Florida Supreme, after over a decade of challenges, has finally declared those caps unconstitutional. Their decision was based upon the case of Michelle McCall, who died after she bled to death following a caesarean section during the birth of her a son in February 2006 at a U.S. Air Force hospital in Fort Walton Beach, Florida. A United States federal judge agreed that McCall had not received proper care and found that her parents and son should receive $2 million for their pain and suffering. But then that verdict award was reduced to $1 million to comply with Florida’s damages cap. The verdict was challenged on appeal to the 11th U.S. Circuit Court of Appeals in Atlanta as violating the U.S. Constitution. The appellate court upheld the verdict, ruling that it did not violate the federal law, but suggested that the Florida Supreme Court should consider if it violated the...
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