Articles Posted in Medical Malpractice

As if the Florida Legislature hasn’t given enough lawsuit protection to health care providers by limiting injured victims damages, and by placing onerous pre-lawsuit screening requirements; a recently enacted law, signed by our pro-insurance Governor, now gives potential medical malpractice defendants the right to unmonitored ex parte communications with an injured victim’s treating doctors. Thankfully, this new law is now the subject of numerous lawsuits challenging its constitutionality, asserting that it violates privacy rights afforded by Florida’s constitution. The lawsuits also challenge the law as a violation of the federal Health Insurance Portability and Accountability Act.

There can only be one reason why a potential defendant and their attorney would want to speak to an injured victim’s treating doctor, that is to intimidate that doctor from assisting the injured party with their case; why else would the Florida Legislature permit such an egregious violation of a citizens right to privacy?

The attorneys filed the lawsuits challenging the new medical malpractice law in Miami, Palm Beach and Ft. Lauderdale. Of course, the doctor’s and their insurance companies, who want to whatever they can to limit injured victims recoveries, believe the lawsuits are frivolous.

The Florida Supreme Court will soon decide whether the mandatory limitations on so- called non economic damages, otherwise known as pain and suffering, in medical malpractice cases is constiitutional.

The damage caps, which were passed into law by the Florida Legislature in 2003, essentially place a limit of one million dollars on the amount a victim of medical malpractice may seek for their pain and suffering, regardless of how many health care professionals cause their injuries.The law, known as Florida Statute section 766.118, also places a limit of $500,00.00 on damages a victim may recover for pain and suffering against any single doctor.

The United States District Court already ruled the limitations on personal injury damages for pain and suffering did not violate the United States Constittion. But, the District Court indicated that the Florida Supreme Court should address the issue with regards to the Florida Constitution.

As lawyers practicing personal injury and medical malpractice law in the State of Florida, we continue to be amazed by the ongoing erosion of the rights of Floridians who are injured due to the negligence of doctors and nurses. The legislature just passed a law which will provide sovereign immunity protection to all doctors and nurses working in private hospitals which are deemed to be teaching hospitals affiliated with medical schools.

This means that victims of medical malpractice by doctors at Jackson Memorial in Miami, Mount Sinai Medical Center in Miami Beach, Shands Healthcare at the University of Florida in Gainesville, Shands Jacksonville Medical Center, Orlando Health in Orlando, and Tampa General Hospital, will no longer be personally liable for their negligence. Injured victims will be limited in their recovery to a maximum of $200,000.00, regardless of how devastating their injuries are, or the amount their future medical bills.

When you elect representatives whose self-interest is helping business, at the expense of individuals, unfortunately, this is what you can continue to expect. We can only hope that those victimized by the doctors working at these newly protected hospitals will remember who caused their rights to be lost when its time to vote.

As personal injury attorneys practicing medical malpractice law in the State of Florida on behalf of the victims of preventable medical errors, we are saddened that the Florida Legislature has again passed a series of laws which will make it increasingly difficult for injured Floridians to obtain justice for their injuries.

Yesterday, the Florida Senate passed the Florida House of Representative’s bill, number 479, which among other burdens, requires out of state physicians to obtain an expert witness certificate, if they want to testify in a Florida medical malpractice case. As you can imagine, it is difficult to find local doctors willing to testify against other local doctors, no matter how egregious their conduct.

The bill will also exclude a doctor or hospital’s failure to comply with federal requirements from evidence in certain cases. The bill also invades the injured patients right of privacy by requiring them to execute an authorization form for the doctor’s insurance company; and, amazingly allows a medical malpractice defendant to interview an injured victim’s other treating doctors outside the presence of the injured victim, or their attorney. The only purpose of such unsupervised meetings will be to coerce the treating doctors into rendering testimony which is favorable to the potential defendant doctor or hospital.

As personal injury attorneys handling medical malpractice and products liability cases throughout the State of Florida, we try to keep consumers informed of dangerous products which cause personal injuries. The DePuy ASR, a metal-on-metal hip replacement system, is one such product which is continuing to injury too may patients.

Although the FDA approved the DePuy ASR for use in traditional hip replacement in 2005, the device did not undergo appropriate clinical trials. Unfortunately, since 2008, hundreds of patients have had to have the device replaced soon after getting it.

According to The New York Times, DePuy hip implants are used in about one-third of the approximately 250,000 hip replacements performed annually. However, many orthopedic surgeons have stopped using these DePuy devices due to concerns that they cause severe tissue and bone damage.

In yet another blow to Florida victims of medical malpractice , the Florida Supreme Court ruled that hospitals are not required to verify that their staff physicians carry medical malpractice insurance. This ruling essentially allows doctors to disregard Florida Statute Section 458.720 which requires them to have medical malpractice insurance if they are on a hospital staff. Without hospitals verifying that their staff doctors are complying with their statutory insurance requirements, those doctors will have one less reason to purchase malpractice insurance.

Too often in our practice we see Florida doctors going “bare,” that is, not having medical malpractice insurance to protect their patients in the event a procedure or treatment is performed negligently and results in personal injury or wrongful death. Usually it is the office based doctor, one who doesn’t venture into hospitals, who has chosen not to carry insurance; but now, with this ruling, there will certainly be a significant increase in surgeons who decide not to get insurance, leaving their patients without an avenue of recovery if something goes wrong.

Considering the profits hospitals make by allowing doctors to operate in their facilities, we would certainly hope that the legislature acts to rectify this omission in Florida Law.

In another example of the State of Florida’s Agency for Health Care Administration’s continuing failure to adequately monitor physicians under its charge, Dr. Alex Zakharia is still on the active staffs at numerous Miami hospitals despite an admitted memory problem and pending perjury and fraud charges.

Dr. Zakharia, age 69, a Miami surgeon specializing in heart surgery, apparently suffers from increasing memory losses, due to a number of TIA (trans ischemic attack) he suffered in the last few years. Despite those worsening memory problems, and his role as the surgeon involved in a number of patients’ deaths, a number of which resulted in medical malpractice claims, the State of Florida has not seen fit to suspend his ability to operate.

We are continually amazed at the State’s lack of action in their monitoring of physicians, especially those involved in multiple patient deaths. We have unfortunately represented a number of families whose loved ones died from egregious malpractice. Yet despite our reporting those incidents to the State, including one doctor who changed medical records following the death of an infant, the State never issued more than a slap on the hand. Hopefully, as the public’s awareness regarding such doctors grows, the State will be forced to deal with these matters in a manner which will better protect the public.

Many of our client’s are surprise to learn that anyone injured by the negligent actions of any employee of the State of Florida, any of its political subdivisions, including those employees of a County or City, is limited, regardless of how seriously they are injured, to a maximum recovery of $100,000.00. This limitation or cap, which applies to car accidents, slip and falls, and even medical malpractice occurring at a County run hospital, is known as sovereign immunity.

The Florida Legislature passed this law, known as Florida Statute section 768.28, to shield governments from paying for all of the damages caused by their employee’s negligence, while allegedly giving accident victims a source of recovery. Unfortunately, for Florida accident victims, especially those who are catastrophically injured, the $100,000.00 cap is woefully inadequate.

Only in the rarest of circumstances does the Florida Legislature entertain, much less pass, a “Claims Bill,” which may provide an accident victim with a greater recovery, only if the Legislature and the Governor enact a specific law to help a specifically injured person. Even when the governmental entity, which caused the catastrophic injury, wants to pay the accident victim more than the $100,000.00 cap, the victim must go through the difficult process of pursing a Claims Bill.

In yet another example of the lack of supervision and inspection by the State of Florida, a group home for disabled children was finally closed down after a 12 year old autistic boy stopped breathing on a filed trip, and is now on a ventilator. Employees of the Rainbow Ranch Group Home attempted to forcibly restrain the child while in the group home’s van.

Despite numerous past allegations of malpractice, including over medication, sexual abuse and malnourishment, The State of Florida did not close this facility until after this this tragic incident.

In our practice, we have unfortunately assisted numerous families with disabled children who are victims, either intentionally or negligently, of abuse and neglect at the hands of under-trained and not supervised group home workers.

In yet another blow to Florida residents and visitors, the Florida Supreme Court ruled that on-board doctors are not considered employees of the cruise lines who hire them. This means that the cruise lines are not responsible if those doctors commit malpractice while treating a passenger on board their ship.

The effect of this ruling is simple, if you are mistreated or injured due to the negligent actions of an on-board doctor, you cannot sue the cruise line for that doctor’s negligent actions. Considering that most on-board doctors are from other countries and do not have malpractice insurance, it is likely that the injured victim will be unable to recovery anything for the damages they suffer at the hands of an on-board doctor.

Having represented dozens of cruise ship passengers, we cannot understand how an on-board doctor, who is specifically placed on a ship by the cruise line, for the benefit of their paying passengers, cannot be an employee of that cruise line. Cruise line passengers have no choice in the medical care they receive as they are essentially captive and in many instances, unable to leave the ships. If a passenger falls victim to illness, or sustains an on-board injury, such as a slip and fall, their only hope for medical care is with the on-board doctor.

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