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	<title>Blog | Law Office of Paul B. Genet, P.A.</title>
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		<title>When Does “Ordinary Negligence” Become “Medical Malpractice”?</title>
		<link>https://www.genetlaw.com/when-does-ordinary-negligence-become-medical-malpractice/</link>
		
		<dc:creator><![CDATA[Jay Butchko]]></dc:creator>
		<pubDate>Wed, 01 Feb 2017 15:11:54 +0000</pubDate>
				<category><![CDATA[Medical Malpractice]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Attorney]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Attorneys]]></category>
		<category><![CDATA[Clearwater Personal Injury Lawyer]]></category>
		<category><![CDATA[Clearwater Personal Injury Lawyers]]></category>
		<category><![CDATA[Doctor Negligence]]></category>
		<category><![CDATA[Florida Medical Negligence Case]]></category>
		<category><![CDATA[Physician Negligence]]></category>
		<guid isPermaLink="false">http://www.genetlaw.com/?p=2649</guid>

					<description><![CDATA[It can sometimes be difficult to distinguish medical malpractice from ordinary negligence cases. Health care providers exploit this confusion by trying to improperly classify the latter as the former. Florida law protects doctors and hospitals by making injured patients jump through more regulatory hoops just to bring a malpractice claim. Court Finds Transport Injury...  <a href="https://www.genetlaw.com/when-does-ordinary-negligence-become-medical-malpractice/">Read More &#187;</a>]]></description>
										<content:encoded><![CDATA[<p>It can sometimes be difficult to distinguish <a href="/practice-areas/medical-malpractice/">medical malpractice</a> from ordinary negligence cases. Health care providers exploit this confusion by trying to improperly classify the latter as the former. Florida law protects doctors and hospitals by making injured patients jump through more regulatory hoops just to bring a malpractice claim.</p>
<p><strong>Court Finds Transport Injury Is Not Malpractice</strong></p>
<p>In an ongoing case from Broward County, a Florida appeals court rejected, for now, a negligence defendant&#8217;s efforts to treat the plaintiff&#8217;s claims as malpractice. The plaintiffs are a husband and wife. The defendants are a medical practice and one of its employees.</p>
<p>The wife, who is 99 years old, suffers from skin cancer. Her primary care physician referred her to the defendant&#8217;s clinic for regular radiation treatments. The defendant provided a van to transport the wife from her residence to the clinic.</p>
<p>Typically a clinic employee would take the plaintiff by wheelchair from the lobby of her building to the van, which had an automatic lift. But on the day in question a different employee–whose the plaintiff had apparently never seen before–told the plaintiff to “follow her” on foot rather than take a wheelchair. According to the plaintiff, as she followed the employee to the van, she tripped over a parking bumper and suffered “severe and permanent injuries.”</p>
<p>The plaintiffs sued the defendants, alleging their negligence in transporting the wife–i.e., not providing a wheelchair and failing to warn her about the parking bumper–caused her injuries. The defendants moved to dismiss the lawsuit, claiming this was really a medical malpractice case and the plaintiffs had failed to follow Florida law applicable to such claims. The trial court denied the defendants&#8217; motion, prompting them to file a petition with the Florida Fourth District Court of Appeals.</p>
<p>But the Fourth District also rejected the defendants&#8217; position. While there are cases where injuries sustained while transporting a patient are considered malpractice–e.g., moving a patient from a gurney to an X-ray table at the hospital–the facts alleged by the plaintiffs here “do not support a theory that injury occurred while a medical diagnostic or medical treatment procedure was occurring.” And even if transporting the plaintiff by van was the result of a medical judgment, the Fourth District said the defendants have not established any “professional standards of care” applicable to such situations. Accordingly, the court dismissed the defendants&#8217; petition without prejudice, meaning the clinic could renew its objections to the lawsuit if “a revised complaint or discovery” establishes the plaintiffs “cannot prove their case without establishing a violation of a professional standard of care.”</p>
<p><strong>Speak With a Florida Medical Malpractice Lawyer Today</strong></p>
<p>Malpractice cases are difficult enough to win in Florida. If you are injured due to a medical provider&#8217;s ordinary negligence, you should not have your case dismissed due to an improper malpractice classification. If you have been injured due to any interaction with a health care provider and need to consult with a <a href="/">Clearwater medical malpractice attorney</a> about how to proceed, contact the Law Office of Paul B. Genet, P.A., at 727-510-8802.</p>
<p>Source:</p>
<p>scholar.google.com/scholar_case?case=4106765417423427288</p>
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		<title>Florida Supreme Court Voids Private Malpractice Arbitration Agreement</title>
		<link>https://www.genetlaw.com/florida-supreme-court-voids-private-malpractice-arbitration-agreement/</link>
		
		<dc:creator><![CDATA[Jay Butchko]]></dc:creator>
		<pubDate>Tue, 24 Jan 2017 16:48:30 +0000</pubDate>
				<category><![CDATA[Medical Malpractice]]></category>
		<category><![CDATA[Arbitration and Malpractice]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Attorney]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Attorneys]]></category>
		<category><![CDATA[Florida medical malpractice lawyer]]></category>
		<category><![CDATA[Florida medical malpractice lawyers]]></category>
		<category><![CDATA[Florida Medical Negligence Case]]></category>
		<category><![CDATA[Health Care Provider Negligence]]></category>
		<guid isPermaLink="false">http://www.genetlaw.com/?p=2647</guid>

					<description><![CDATA[Florida&#8217;s medical malpractice laws provide for a system of “voluntary binding arbitration” that is supposed to make things easier for victims. In submitting to arbitration, the health care provider must admit liability. The arbitration is therefore limited to a determination of damages. The health care provider must also assume all costs associated with the...  <a href="https://www.genetlaw.com/florida-supreme-court-voids-private-malpractice-arbitration-agreement/">Read More &#187;</a>]]></description>
										<content:encoded><![CDATA[<p>Florida&#8217;s <a href="/practice-areas/medical-malpractice/">medical malpractice</a> laws provide for a system of “voluntary binding arbitration” that is supposed to make things easier for victims. In submitting to arbitration, the health care provider must admit liability. The arbitration is therefore limited to a determination of damages. The health care provider must also assume all costs associated with the arbitration. The arbitrators must also be independent and include at least one administrative law judge.</p>
<p><strong>No Changes to “Cost, Award, and Fairness incentives” Allowed</strong></p>
<p>Given that a malpractice victim waives his or her right to have their case heard in court–i.e., before a jury–it is important that any arbitration conform to the requirements of Florida law. Unfortunately, many health care providers in the state have tried to do an end-run around the law by insisting patients sign private arbitration agreements that tilt the playing field against malpractice victims. The Florida Supreme Court recently took a stand against such non-statutory arbitration agreements.</p>
<p>The Court specifically addressed the case of a Florida woman whose child was stillborn after she was turned away from a medical appointment because “she was a few minutes late.” When the victim filed a malpractice lawsuit against her health care providers, they moved to enforce a previously signed arbitration agreement.</p>
<p>This arbitration agreement departed from Florida law in several respects. First, the agreement called for appointment of arbitrators of the parties&#8217; choosing, rather than independent arbitrators. Second, the agreement allows the defendants to opt-out of the state&#8217;s arbitration rules by simply withholding consent for 20 days. If the victim refused to comply, the defendants could appoint their own arbitrators and try the case without her consent.</p>
<p>Third, the agreement required the victim and the defendants to split the costs of arbitration. Fourth, the defendants would not be liable for any interest on a damage award, as they would be under Florida law. Fifth, the defendants would not be individually liable for the entire damage award. Finally, the victim would not have any right to appeal the arbitrator&#8217;s decision.</p>
<p>The Florida Supreme Court, in a December 22, 2016, decision, said all of these departures from state law was unacceptable. While parties are free to enter into private arbitration agreements, they may not do so in a manner that goes “against public policy,” as expressed by the Florida legislature. The Court said any agreement that changes the “cost, award, and fairness incentives” of the state&#8217;s medical malpractice arbitration law is therefore unenforceable.</p>
<p><strong>A Florida Medical Malpractice Lawyer Can Help</strong></p>
<p>The Supreme Court&#8217;s decision is welcome news for thousands of vulnerable Florida patients who unknowingly sign away their legal rights every year at their doctor&#8217;s office. If you have been the victim of a health care provider&#8217;s negligence, it is important to work with a qualified Clearwater medical malpractice attorney. Contact the <a href="/">Law Office of Paul B. Genet, P.A.</a>, at 727-510-8802 to speak with an attorney right away.</p>
<p>Source:</p>
<p>scholar.google.com/scholar_case?case=16515829673351842950&amp;hl=en&amp;as_sdt=6,47</p>
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		<title>How Do I Know My Future Medical Expenses Following a Car Accident</title>
		<link>https://www.genetlaw.com/how-do-i-know-my-future-medical-expenses-following-a-car-accident/</link>
		
		<dc:creator><![CDATA[Jay Butchko]]></dc:creator>
		<pubDate>Thu, 19 Jan 2017 16:01:51 +0000</pubDate>
				<category><![CDATA[Automobile Accidents]]></category>
		<category><![CDATA[Personal Injury]]></category>
		<category><![CDATA[Clearwater Auto Accident Attorney]]></category>
		<category><![CDATA[Clearwater Auto Accident Attorneys]]></category>
		<category><![CDATA[Clearwater Car Accident Lawyer]]></category>
		<category><![CDATA[Clearwater Car Accident Lawyers]]></category>
		<category><![CDATA[Clearwater Personal Injury Attorney]]></category>
		<category><![CDATA[Clearwater Personal Injury Attorneys]]></category>
		<category><![CDATA[Florida Personal Injury Claims]]></category>
		<category><![CDATA[Medical Expenses]]></category>
		<guid isPermaLink="false">http://www.genetlaw.com/?p=2645</guid>

					<description><![CDATA[Following a car accident or a similarly traumatic event, you may be liable for thousands of dollars in medical expenses. If your injuries were the result of a third party&#8217;s negligence, you can certainly file a personal injury lawsuit and seek compensation for these medical costs. One thing to keep in mind, however, is...  <a href="https://www.genetlaw.com/how-do-i-know-my-future-medical-expenses-following-a-car-accident/">Read More &#187;</a>]]></description>
										<content:encoded><![CDATA[<p>Following a <a href="/practice-areas/auto-accidents/">car accident</a> or a similarly traumatic event, you may be liable for thousands of dollars in medical expenses. If your injuries were the result of a third party&#8217;s negligence, you can certainly file a <a href="/practice-areas/personal-injury/">personal injury lawsuit</a> and seek compensation for these medical costs. One thing to keep in mind, however, is that your claim should include not just past but also expected future medical expenses.</p>
<p><strong>Court Reduces Award Due to Lack of “Life Expectancy” Evidence</strong></p>
<p>Ideally, your injuries following an accident are minor and only require limited medical care. Unfortunately, that is not always the case. For example, if you suffer multiple broken bones in a car crash, you may require multiple surgeries and struggle with lifelong effects such as chronic pain and arthritis. Similarly, if an accident causes a head injury, there may be permanent brain damage that requires lifelong medical care.</p>
<p>Under Florida law, an accident victim has the right to seek compensation for future medical expenses from a negligent party or their own uninsured motorist carrier. However, it is not enough to simply guess at how much those future expenses may be. While there is always some degree of speculation required in these cases, a victim must still present a judge and jury with “competent, substantial evidence” on which to basis an award of future medical expenses.</p>
<p>Here is an illustration from a recent Broward County personal injury case. The victim here was injured in a car accident. She filed suit against the responsible party and served the claim on her uninsured motorist carrier. Following a jury trial, the court awarded the victim $690,000, which included $360,000 for future medical expenses.</p>
<p>The insurance company appealed. The Florida Fourth District Court of Appeals agreed with the insurer that the award of future medical expenses was not supported by the evidence. The Fourth District said the only evidence presented at trial came from one of the victim&#8217;s doctors, who testified she would need shoulder surgery (at a cost of $40,000-$50,000) and thereafter “incur up to $2,000 in future medical expenses per year.” Notably, the jury did not hear any evidence regarding the victim&#8217;s life expectancy, so it was impossible to calculate how many years she would incur these expenses.</p>
<p>Accordingly, the Fourth District reduced the award of future medical expenses to $50,000–the maximum estimated cost of the anticipated shoulder surgery–plus $2,000 for each year of the victim&#8217;s remaining life expectancy, which the trial judge was ordered to determine in a separate proceeding.</p>
<p><strong>A Florida Car Accident Attorney Can Help</strong></p>
<p>Future medical expenses are an issue you should not ignore when contemplating a personal injury lawsuit or simply dealing with your own insurance carrier. It may not be immediately apparent after the accident, but your injuries may require several years of medical care, therapy, and pain management. An experienced <a href="/">Clearwater personal injury attorney</a> can help you with your case and fight for the compensation you deserve. Contact the Law Office of Paul B. Genet, P.A., today at 727-510-8802 if you would like to schedule a consultation.</p>
<p>Source:</p>
<p>scholar.google.com/scholar_case?case=17181244751857868422&amp;hl=en&amp;as_sdt=2006</p>
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		<title>Florida Court Rejects Constitutional Challenge to Birth Injury Law</title>
		<link>https://www.genetlaw.com/florida-court-rejects-constitutional-challenge-to-birth-injury-law/</link>
		
		<dc:creator><![CDATA[Jay Butchko]]></dc:creator>
		<pubDate>Fri, 13 Jan 2017 17:13:13 +0000</pubDate>
				<category><![CDATA[birth injuries]]></category>
		<category><![CDATA[Medical Malpractice]]></category>
		<category><![CDATA[Birth injuries]]></category>
		<category><![CDATA[Clearwater Birth Injury Lawyer]]></category>
		<category><![CDATA[Clearwater Birth Injury Lawyers]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Attorney]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Attorneys]]></category>
		<category><![CDATA[Florida Birth Injury Law]]></category>
		<category><![CDATA[Neurological Injury Compensation Act]]></category>
		<category><![CDATA[NICA]]></category>
		<guid isPermaLink="false">http://www.genetlaw.com/?p=2640</guid>

					<description><![CDATA[Many Florida babies suffer serious birth injuries as a result of medical malpractice during delivery. Florida law provides a form of “no-fault” coverage for such injuries through the Neurological Injury Compensation Act (NICA). Under NICA, the parent of a child with birth injuries must first file an administrative claim for these no-fault benefits. Only...  <a href="https://www.genetlaw.com/florida-court-rejects-constitutional-challenge-to-birth-injury-law/">Read More &#187;</a>]]></description>
										<content:encoded><![CDATA[<p>Many Florida babies suffer serious birth injuries as a result of <a href="/practice-areas/medical-malpractice/">medical malpractice</a> during delivery. Florida law provides a form of “no-fault” coverage for such injuries through the Neurological Injury Compensation Act (NICA). Under NICA, the parent of a child with birth injuries must first file an administrative claim for these no-fault benefits. Only if NICA does not apply can the parent then file a medical malpractice claim with the Florida courts.</p>
<p><strong>Legislature Had “Rational Basis” for Distinguishing Between Single, Multiple Births</strong></p>
<p>Understandably, Florida hospitals and medical providers like NICA because it limits their potential liability for birth defects. One hospital was so insistent on NICA protection that it recently challenged part of the law itself that excluded a particular claim. A Florida appeals court rejected the challenge, permitting the mother of the injured child to proceed with a potential civil lawsuit against the hospital.</p>
<p>The child in this case was born prematurely at 39.5 weeks and “suffered neurological injuries from a lack of oxygen to her brain during the birthing process”. The child weighed 2,440 grams at delivery. This is legally important because NICA only covers injuries to the brain of a “live infant weighing at least 2,500 grams.” In cases of multiple births–i.e., twins or triplets–this threshold is lowered to 2,000 grams.</p>
<p>The hospital argued the different birth-weight standards for single and multiple births was not just unfair, but unconstitutional. After the administrator of the NICA plan rejected the mother&#8217;s petition for no-fault benefits, the hospital intervened and claimed this “impermissible distinction” violated the “equal protection” guarantees of both the U.S. and Florida constitutions.</p>
<p>The Florida First District Court of Appeal did not see it that way. In a December 5 opinion, the court said there was no equal protection violation for two reasons. First, single and multiple births were not “similar situations” under the equal protection clause. And second, even if they were, the Florida legislature acted within its discretion when it established the different birth-weight requirements.</p>
<p>Florida courts generally defer to the legislature&#8217;s judgment so long as there is a “rational basis” for its actions. Here, the First District said it was rational for the legislature to conclude that single and multiple births were different situations. Along those lines, the different weight rules were “rationally related” to the legislature&#8217;s purpose in creating NICA and “maintaining the actuarial soundness of its no fault coverage.” The court noted the legislature actually considered, and rejected, eliminating the weight-class distinction due to concerns it would “make the financial costs untenable.”</p>
<p><strong>Has Your Child Suffered a Birth-Related Injury?</strong></p>
<p>As noted above, the court&#8217;s decision may actually benefit the child and her mother in the long run. Absent NICA coverage, the mother is now free to file a medical malpractice lawsuit that may yield greater compensation.</p>
<p>If your child has suffered lifelong injuries due to a medical provider&#8217;s negligence, it is important you seek out advice on how to deal with Florida&#8217;s complex legal regime. Contact the Law Office of Paul B. Genet, P.A., today at 727-510-8802 if you need to speak with an experienced <a href="/">Clearwater medical malpractice attorney</a> right away.</p>
<p>Resource:</p>
<p>scholar.google.com/scholar_case?case=11507932267164462457&amp;hl=en&amp;as_sdt=6,47</p>
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		<title>New Studies Question Link Between “Tort Reform” and Malpractice Insurance Rates</title>
		<link>https://www.genetlaw.com/new-studies-question-link-between-tort-reform-and-malpractice-insurance-rates/</link>
		
		<dc:creator><![CDATA[Jay Butchko]]></dc:creator>
		<pubDate>Wed, 04 Jan 2017 16:49:03 +0000</pubDate>
				<category><![CDATA[Uncategorized]]></category>
		<category><![CDATA[Affordable Care Ac]]></category>
		<category><![CDATA[AIR]]></category>
		<category><![CDATA[Americans for Insurance Reform]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Lawyer]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Lawyers]]></category>
		<category><![CDATA[Florida medical malpractice claims]]></category>
		<category><![CDATA[Healthcare Provider]]></category>
		<category><![CDATA[Medical Malpractice Insurance Limits]]></category>
		<category><![CDATA[Tort Reform]]></category>
		<guid isPermaLink="false">http://www.genetlaw.com/?p=2597</guid>

					<description><![CDATA[Florida has some of the strictest limits on medical malpractice lawsuits in the country. Although the state&#8217;s courts have rolled back some of these limits, malpractice victims often face an uphill climb just to get their day in court. And while health care professionals (and Florida legislators) insist restricting victim&#8217;s rights are necessary to...  <a href="https://www.genetlaw.com/new-studies-question-link-between-tort-reform-and-malpractice-insurance-rates/">Read More &#187;</a>]]></description>
										<content:encoded><![CDATA[<p>Florida has some of the strictest limits on <a href="/practice-areas/medical-malpractice/">medical malpractice</a> lawsuits in the country. Although the state&#8217;s courts have rolled back some of these limits, malpractice victims often face an uphill climb just to get their day in court. And while health care professionals (and Florida legislators) insist restricting victim&#8217;s rights are necessary to guard against sudden, uncontrolled increases in the cost of malpractice insurance, a pair of studies recently published by a leading coalition of consumer and public interests groups suggests the real culprits are the insurance companies themselves.</p>
<p><strong>Florida Doctors&#8217; Premiums Went Up After Malpractice Limits Imposed</strong></p>
<p>Americans for Insurance Reform (AIR) is a project of the Center for Justice &amp; Democracy at New York Law School. AIR represents more than 100 consumer and public interest groups who oppose so-called “tort reform” that restricts the ability of injured patients to seek compensation for medical negligence. Since 2002, AIR has published a series of studies designed to illustrate the lack of any scientific connection between the adoption of malpractice lawsuit restrictions and lower insurance premiums.</p>
<p>Contrary to the claims of medical and insurance industry groups, AIR&#8217;s studies have consistently found “that medical malpractice claims and premiums are the lowest they have been” in 40 years. This is the case in all states regardless of whether they have “enacted severe medical malpractice tort restrictions.” To the contrary, the evidence shows insurance rates actually declined a higher rate in states that have not followed Florida&#8217;s lead in adopting caps on medical malpractice damages.</p>
<p>The reason malpractice insurance rates periodically rise, AIR said, is “because insurance companies make most of their profits, or return on net worth, from investment income.” In other words, when the stock market is down, insurers make up for their losses by raising premiums. This creates a purported “crisis” which is then incorrectly blamed on a rise in medical malpractice judgments.</p>
<p>But when states like Florida do respond to the insurance industry&#8217;s cyclical downturns by restricting malpractice awards, the result is not a sudden decrease in insurance premiums. AIR noted that back in the 1980s Aetna, one of Florida&#8217;s largest insurance companies, conducted a study after the state adopted a $450,000 on non-economic (i.e., pain and suffering) damages in medical malpractice cases. The insurer found there was “no reduction of cost” as a result of “tort reform.” Similarly, when Florida passed another round of malpractice limits in the early 2000s, AIR noted insurers actually “followed up with requests to increase premiums by as much as 45 percent.”</p>
<p><strong>Get Advice From a Florida Medical Malpractice Lawyer</strong></p>
<p>The political debate over medical malpractice limits will continue for some time. AIR noted there have been a number of proposals to amend or replace the federal Affordable Care Act (i.e., “Obamacare”) that would include new restrictions on medical malpractice awards. Because this is a constantly evolving area of the law, it is important to speak with an experienced <a href="/">Clearwater medical malpractice attorney</a> if you are considering suing a health care provide for negligence. Contact the Law Office of Paul B. Genet, P.A., at 727-510-8802 to speak with an attorney right away.</p>
<p>Resource:</p>
<p>centerjd.org/content/americans-insurance-reform-issues-two-new-studies-medical-malpractice-insura<a href="http://centerjd.org/content/americans-insurance-reform-issues-two-new-studies-medical-malpractice-insurance">nce</a></p>
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		<title>Florida Sheriff, Medical Contractor Face Lawsuit Over Inmate&#8217;s Death</title>
		<link>https://www.genetlaw.com/florida-sheriff-medical-contractor-face-lawsuit-over-inmates-death/</link>
		
		<dc:creator><![CDATA[Jay Butchko]]></dc:creator>
		<pubDate>Tue, 27 Dec 2016 14:00:51 +0000</pubDate>
				<category><![CDATA[Medical Malpractice]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Lawyer]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Lawyers]]></category>
		<category><![CDATA[Doctor malpractice]]></category>
		<category><![CDATA[Florida medical malpractice attorney]]></category>
		<category><![CDATA[Florida medical malpractice attorneys]]></category>
		<category><![CDATA[Florida medical malpractice claims]]></category>
		<category><![CDATA[Medical Liability]]></category>
		<category><![CDATA[medical negligence]]></category>
		<guid isPermaLink="false">http://www.genetlaw.com/?p=2599</guid>

					<description><![CDATA[Florida law holds medical malpractice plaintiffs to higher standards than persons alleging ordinary negligence. There are cases, however, that involve both types of claims. It is important to understand this distinction, as a court may be forced to dismiss a malpractice claim while allowing negligence and similar charges to proceed to trial. Judge Rules...  <a href="https://www.genetlaw.com/florida-sheriff-medical-contractor-face-lawsuit-over-inmates-death/">Read More &#187;</a>]]></description>
										<content:encoded><![CDATA[<p><a href="/wp-content/uploads/2016/12/Doctor_Steth.jpg"><img fetchpriority="high" decoding="async" class="alignnone size-medium wp-image-2601" src="/wp-content/uploads/2016/12/Doctor_Steth-300x200.jpg" alt="" width="300" height="200" srcset="https://www.genetlaw.com/wp-content/uploads/2016/12/Doctor_Steth-300x200.jpg 300w, https://www.genetlaw.com/wp-content/uploads/2016/12/Doctor_Steth.jpg 488w" sizes="(max-width: 300px) 100vw, 300px" /></a></p>
<p>Florida law holds <a href="/practice-areas/medical-malpractice/">medical malpractice</a> plaintiffs to higher standards than persons alleging ordinary negligence. There are cases, however, that involve both types of claims. It is important to understand this distinction, as a court may be forced to dismiss a malpractice claim while allowing negligence and similar charges to proceed to trial.</p>
<p><strong>Judge Rules Sheriff&#8217;s Alleged Misconduct Not “Medical” Negligence</strong></p>
<p>An ongoing Florida lawsuit offers a tragic illustration of this legal principle. This case began with a fairly routine, non-medical event: A drunk driving arrest.</p>
<p>Normally, a DWI arrest is not a death sentence. Unfortunately, that was not the case here. According to the lawsuit, the victim was arrested and brought to a county jail, where a nurse employed by the sheriff&#8217;s office conducted an examination. The victim advised the nurse he suffered from liver problems and was under a physician&#8217;s care. The nurse further observed the victim had a severely jaundiced condition, which is a symptom of liver failure.</p>
<p>Despite the nurse&#8217;s findings, she cleared the victim to be admitted to jail. She did contact the jail&#8217;s on-call physician–a private contractor–who prescribed medication and ordered the victim to be re-examined within the hour. The nurse ignored these orders.</p>
<p>Within 20 minutes of entering jail, the lawsuit claims “his conditioned had very rapidly deteriorated.” And although two sheriff&#8217;s deputies observed the victim, neither sought medical attention. More than 90 minutes later, the deputies saw the victim was no longer moving. Another 20 minutes elapsed before the sheriff&#8217;s office decided to release the man so he could be transported to a hospital. But by this point it was too late. Less than half an hour later, he was dead.</p>
<p>The executor of the victim&#8217;s estate sued a number of parties, including the sheriff, the private contractor who provided medical care for the jail, and the on-call doctor. On December 2, a federal judge denied the sheriff&#8217;s motion to dismiss, but partially granted a similar motion brought by the contractor.</p>
<p>The judge noted that the estate&#8217;s claims against the sheriff were for ordinary negligence, therefore they did not have to comply with Florida&#8217;s pre-suit requirements for medical malpractice cases. Here, the allegations against the sheriff relate to the “performance of his custodial duties,” i.e. his responsibility to properly care for inmates in his jail. Likewise, the failure by the sheriff&#8217;s deputies to promptly seek treatment does not involve “medical treatment or diagnoses,” as contemplated by Florida&#8217;s malpractice laws.</p>
<p>That said, the estate was required to comply with the pre-suit requirements with respect to its claim against the contractor and the doctor. The estate did so, the judge said, although the court did dismiss separate “breach of contract” and “general negligence” claims against the contractor, holding these were “duplicative” of the medical malpractice allegations.</p>
<p><strong>Get Help From a Florida Medical Malpractice Lawyer</strong></p>
<p>Nobody should ever suffer the loss of a loved one due to the negligence of individuals who fail to seek proper medical care. And when such tragedies do occur, it is important that the responsible parties do not escape liability due to a technicality in the law. If you need assistance from a qualified Clearwater medical malpractice attorney, contact the <a href="/">Law Office of Paul B. Genet, P.A.</a> at 727-510-8802 today.</p>
<p>Resource:</p>
<p>scholar.google.com/scholar_case?case=10640900208170536295&amp;hl=en&amp;as_sdt=2006</p>
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		<title>Did Lexiscan Distributors Fail to Warn Patients About Heart Attack Risks?</title>
		<link>https://www.genetlaw.com/did-lexiscan-distributors-fail-to-warn-patients-about-heart-attack-risks/</link>
		
		<dc:creator><![CDATA[Jay Butchko]]></dc:creator>
		<pubDate>Wed, 21 Dec 2016 14:00:25 +0000</pubDate>
				<category><![CDATA[Medical Malpractice]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Lawyer]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Lawyers]]></category>
		<category><![CDATA[Doctor Negligence]]></category>
		<category><![CDATA[Drugmaker Negligence]]></category>
		<category><![CDATA[Failure to Warn]]></category>
		<category><![CDATA[Heart Attack Risk]]></category>
		<category><![CDATA[Lexiscan]]></category>
		<category><![CDATA[Medical Mass Tort Claim]]></category>
		<guid isPermaLink="false">http://www.genetlaw.com/?p=2557</guid>

					<description><![CDATA[Medical malpractice is not always the result of physician negligence. Doctors rely on pharmaceutical companies to provide them with safe and effective drugs to treat their patients. But when a drug maker fails to exercise “ordinary care” and produces a defective or dangerous product, it can lead to a medical mass tort claim against...  <a href="https://www.genetlaw.com/did-lexiscan-distributors-fail-to-warn-patients-about-heart-attack-risks/">Read More &#187;</a>]]></description>
										<content:encoded><![CDATA[<p><a href="/wp-content/uploads/2016/12/MedLaws.jpg"><img decoding="async" class="alignnone size-medium wp-image-2589" src="/wp-content/uploads/2016/12/MedLaws-300x196.jpg" alt="" width="300" height="196" srcset="https://www.genetlaw.com/wp-content/uploads/2016/12/MedLaws-300x196.jpg 300w, https://www.genetlaw.com/wp-content/uploads/2016/12/MedLaws.jpg 491w" sizes="(max-width: 300px) 100vw, 300px" /></a></p>
<p><a href="/practice-areas/medical-malpractice/">Medical malpractice</a> is not always the result of physician negligence. Doctors rely on pharmaceutical companies to provide them with safe and effective drugs to treat their patients. But when a drug maker fails to exercise “ordinary care” and produces a defective or dangerous product, it can lead to a <a href="/practice-areas/medical-malpractice/mass-torts/">medical mass tort claim</a> against not only the manufacturer, but also the parties responsible for distribution.</p>
<p><strong>Florida Man&#8217;s Lawsuit Survives Motion to Dismiss</strong></p>
<p>An ongoing federal lawsuit in Fort Myers demonstrates the type of claims that can arise from an allegedly defective drug. The plaintiff in this case, who is representing himself, went to a cardiac clinic for testing in March 2012. As part of a stress test, clinic personnel administered a drug called Lexiscan, which is designed to increase blood flow and “mimic” the effects of vigorous exercise on the heart.</p>
<p>A few minutes after completing the test, the plaintiff suffered a heart attack. He was taken to a nearby hospital where he again “went into cardiac arrest” and was later admitted to the intensive care unit, where he remained for nearly a week. Consequently, the suffered “permanent heart damage and mental impairment” and incurred several hundred thousand dollars in medical bills.</p>
<p>In November 2013, more than a year after the plaintiff&#8217;s incident, the U.S. Food and Drug Administration issued a warning with respect to Lexiscan and a similar drug, Adenoscan, noting there was a “rare but serious risk of heart attack and death.” The FDA ordered the manufacturers of these drugs to change their labels to reflect these risks.</p>
<p>The FDA&#8217;s warning came too late for the plaintiff, however, who sued a number of parties connected with Lexiscan. Specifically, the plaintiff alleged that two companies responsible for marketing Lexiscan in the State of Florida failed to provide adequate warnings about the risk of heart attack or death–the same risks acknowledged in the 2013 FDA notice. One defendant allegedly produced videos that instructed physicians on how to prescribe Lexiscan without containing adequate warnings of the risks to patients. The second defendant allegedly distributed Lexiscan to the clinic that administered the drug to the plaintiff, again without warning that a patient might suffer a heart attack or die.</p>
<p>At this stage of the litigation, the trial judge said the plaintiff had alleged “sufficient” facts to proceed with his case and denied the defendants&#8217; motion to dismiss. The judge cautioned, however, that the plaintiff&#8217;s claims against the second defendant in particular are “slim.”</p>
<p><strong>Do Not Represent Yourself in Court</strong></p>
<p>As noted above, the plaintiff is representing himself in this case. In general, it is never a good idea to sue someone without the assistance of a qualified attorney. This is especially true when bringing a medical mass tort claim, which not only involves well-financed corporate defendants but complex factual allegations that require expert testimony. If you have been injured due to a physician or drugmaker&#8217;s negligence and need help from an experienced <a href="/">Clearwater medical malpractice lawyer</a>, contact the Law Office of Paul B. Genet, P.A., at 727-510-8802, right away.</p>
<p>Resources:</p>
<p>fda.gov/Drugs/DrugSafety/ucm375654.htm</p>
<p>scholar.google.com/scholar_case?case=937808965085212876&amp;hl=en&amp;as_sdt=6,47</p>
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		<title>Holding Florida Midwives Responsible for Birth Injuries</title>
		<link>https://www.genetlaw.com/holding-florida-midwives-responsible-for-birth-injuries/</link>
		
		<dc:creator><![CDATA[Jay Butchko]]></dc:creator>
		<pubDate>Wed, 14 Dec 2016 16:48:33 +0000</pubDate>
				<category><![CDATA[birth injuries]]></category>
		<category><![CDATA[Medical Malpractice]]></category>
		<category><![CDATA[Clearwater Birth Injury Lawyer]]></category>
		<category><![CDATA[Clearwater Birth Injury Lawyers]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Attorney]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Attorneys]]></category>
		<category><![CDATA[Federal Tort Claims Act]]></category>
		<category><![CDATA[Florida medical malpractice claims]]></category>
		<category><![CDATA[FTCA]]></category>
		<category><![CDATA[Midwife Liability]]></category>
		<guid isPermaLink="false">http://www.genetlaw.com/?p=2553</guid>

					<description><![CDATA[Shoulder dystocia is a frightening complication that can occur during childbirth. During a vaginal delivery, the newborn&#8217;s shoulder may get stuck. This can stretch or tear the nerves connecting the child&#8217;s spinal cord to their shoulder and arm. While this injury is usually temporary and will heal, with some children there is permanent damage....  <a href="https://www.genetlaw.com/holding-florida-midwives-responsible-for-birth-injuries/">Read More &#187;</a>]]></description>
										<content:encoded><![CDATA[<p><a href="/wp-content/uploads/2016/12/Midwife.jpg"><img decoding="async" class="alignnone size-medium wp-image-2586" src="/wp-content/uploads/2016/12/Midwife-300x192.jpg" alt="" width="300" height="192" srcset="https://www.genetlaw.com/wp-content/uploads/2016/12/Midwife-300x192.jpg 300w, https://www.genetlaw.com/wp-content/uploads/2016/12/Midwife.jpg 460w" sizes="(max-width: 300px) 100vw, 300px" /></a></p>
<p>Shoulder dystocia is a frightening complication that can occur during childbirth. During a vaginal delivery, the newborn&#8217;s shoulder may get stuck. This can stretch or tear the nerves connecting the child&#8217;s spinal cord to their shoulder and arm. While this injury is usually temporary and will heal, with some children there is permanent damage.</p>
<p><strong>Judge Sides With Government in Battle of Medical Experts</strong></p>
<p>An ongoing <a href="/practice-areas/medical-malpractice/">Florida medical malpractice lawsuit</a> in Fort Myers illustrates the personal and legal struggles that a parent can face in those rare cases where shoulder dystocia causes permanent injury to her child. The plaintiff is technically the child. The mother has brought the malpractice claim on his behalf.</p>
<p>The plaintiff was born at health center funded by the federal government. At birth, the plaintiff had “no movement [in] his left arm.” This injury is permanent and was the result of shoulder dystocia.</p>
<p>The lawsuit alleges that the certified nurse midwife employed by the health center “used excessive traction,” that is she pulled on the plaintiff&#8217;s head and neck with too much force, and this was a negligent act that caused the permanent injury. Since the federal government employed the midwife, the lawsuit was brought against the United States under the Federal Tort Claims Act (FTCA).</p>
<p>In FTCA cases, Florida law regarding medical malpractice still applies, but the federal courts use their own rules of evidence to determine the admissibility of expert testimony. Here, the trial judge issued a ruling on October 13 accepting the government&#8217;s experts but rejecting the plaintiff&#8217;s experts. The plaintiff&#8217;s experts would have testified at trial that the midwife&#8217;s “excessive traction”–i.e., negligence–was the only plausible cause of the child&#8217;s injury. The defendant&#8217;s experts, in contrast, argued that “the natural forces of labor caused” the injury and that the midwife&#8217;s actions could not have altered that outcome.</p>
<p>The judge decided the plaintiff&#8217;s experts should not testify because the “medical literature” submitted by the government contradicted the notion that the midwife&#8217;s actions could have been responsible for the injury. The judge also cited a 2014 decision by a federal appeals court in St. Louis in a similar medical malpractice case that also excluded expert testimony in support of a claim brought by a shoulder dystocia victim. Like the appeals court, the judge here was persuaded that these types of injuries “can and do occur in a fixed percentage of births” regardless of the midwife or doctor&#8217;s actions.</p>
<p><strong>Fighting For Your Child in Court</strong></p>
<p>The judge&#8217;s decision in this case is not binding on other Florida courts. So a different Florida judge might accept expert testimony that supports a medical malpractice claim against another child permanently injured due to shoulder dystocia. However, this decision shows the uphill battle a parent may face in seeking justice on behalf of their child. That is why you should always work with an experienced <a href="/">Clearwater medical malpractice attorney</a>. Contact the Paul B. Genet Law Offices today at 727-510-8802 if you need to speak with a malpractice lawyer right away.</p>
<p>Resources:</p>
<p>scholar.google.com/scholar_case?case=15345031274357030265&amp;hl=en&amp;as_sdt=6,47</p>
<p>scholar.google.com/scholar_case?case=12612396435113041161&amp;hl=en&amp;as_sdt=6<a href="https://scholar.google.com/scholar_case?case=12612396435113041161&amp;hl=en&amp;as_sdt=6,47">,47</a></p>
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		<title>When Is a Florida Car Owner Liable for an Auto Accident?</title>
		<link>https://www.genetlaw.com/when-is-a-florida-car-owner-liable-for-an-auto-accident/</link>
		
		<dc:creator><![CDATA[Jay Butchko]]></dc:creator>
		<pubDate>Tue, 06 Dec 2016 14:11:42 +0000</pubDate>
				<category><![CDATA[Automobile Accidents]]></category>
		<category><![CDATA[Personal Injury]]></category>
		<category><![CDATA[Wrongful Death]]></category>
		<category><![CDATA[Accident Liability]]></category>
		<category><![CDATA[Car Accident Injuries]]></category>
		<category><![CDATA[Clearwater Auto Accident Attorney]]></category>
		<category><![CDATA[Clearwater Auto Accident Attorneys]]></category>
		<category><![CDATA[Clearwater Personal Injury Lawyer]]></category>
		<category><![CDATA[Clearwater Personal Injury Lawyers]]></category>
		<category><![CDATA[Dangerous instrumentality doctrine]]></category>
		<category><![CDATA[Florida Wrongful Death Lawsuit]]></category>
		<guid isPermaLink="false">http://www.genetlaw.com/?p=2555</guid>

					<description><![CDATA[Since the 1920s, Florida courts have applied a “dangerous instrumentality doctrine” when assessing liability for auto accidents. Basically, this doctrine holds that the owner of any motor vehicle is vicariously liable if they “voluntarily entrust” said vehicle to a person “whose negligent operation causes damage to another.” The idea behind this rule, as the...  <a href="https://www.genetlaw.com/when-is-a-florida-car-owner-liable-for-an-auto-accident/">Read More &#187;</a>]]></description>
										<content:encoded><![CDATA[<p><a href="/wp-content/uploads/2016/12/Accident6.jpg"><img decoding="async" class="alignnone size-medium wp-image-2571" src="/wp-content/uploads/2016/12/Accident6-300x170.jpg" alt="accident6" width="300" height="170" srcset="https://www.genetlaw.com/wp-content/uploads/2016/12/Accident6-300x170.jpg 300w, https://www.genetlaw.com/wp-content/uploads/2016/12/Accident6.jpg 443w" sizes="(max-width: 300px) 100vw, 300px" /></a></p>
<p>Since the 1920s, Florida courts have applied a “dangerous instrumentality doctrine” when assessing liability for <a href="/practice-areas/auto-accidents/">auto accidents</a>. Basically, this doctrine holds that the owner of any motor vehicle is vicariously liable if they “voluntarily entrust” said vehicle to a person “whose negligent operation causes damage to another.” The idea behind this rule, as the Florida Supreme Court has explained, is that “the one who originates the danger by entrusting the automobile to another is in the best position to make certain that there will be adequate resources” to pay for any damages arising from the vehicle&#8217;s negligent use, even if the owner is not actually operating the car at the time.</p>
<p><strong>Judge Says UPS Can Stand Trial Over Fatal Jacksonville Accident</strong></p>
<p>There are some exceptions to the dangerous instrumentality doctrine. One is known as the “shop exception,” which applies when the owner of a vehicle entrusts his or her vehicle to a “repairman or serviceman.” In other words, if you take your car to the shop for repairs, and while the vehicle is in the shop&#8217;s custody one of its employees gets into an accident, you will not be held liable. This exception only applies, according to the Supreme Court, if the owner “does not exercise control over the injury-causing operation of the vehicle during the servicing, service-related testing, or transport of the vehicle, and is otherwise not negligent.”</p>
<p>Recently a federal judge in Jacksonville rejected a defendant&#8217;s effort to invoke the shop exception in an ongoing car accident case. The underlying accident took place in 2013, when a UPS package car struck another car while driving on Interstate 90. The other car “careened off the road and crashed into a tree,” according to court records, which killed a married couple and injured their grandson.</p>
<p>The estates of the deceased and the parents of the minor child sued a number of parties for <a href="/practice-areas/wrongful-death/">wrongful death</a> and personal injury, including UPS as the owner of the vehicle that caused the accident. UPS moved for summary judgment, arguing that at the time of the accident, the package car was driven by an independent contractor hired to deliver the vehicle from its manufacturer to UPS. In fact, the driver was actually sub-contracted by another contractor hired by UPS, which maintained it had no control over the driver&#8217;s actions.</p>
<p>But as the judge explained in an order denying UPS summary judgment, this is exactly the scenario contemplated by the Florida Supreme Court in creating the dangerous instrumentality doctrine. Ultimately, the subcontractor operating the vehicle was a “permissive user,” and that meant that UPS could be held liable for her negligent operation of the package car. The shop exception only applies to “servicing or repairing the motor vehicle itself,” not delivery from the manufacturer, as is the case here. Indeed, the judge noted that UPS–a package delivery company–could have had one of its own drivers deliver the car, and the subcontractor was therefore providing a service for the convenience of UPS.</p>
<p><strong>Have You Been Injured in a Florida Car Accident?</strong></p>
<p>If you are seriously injured in an auto accident, Florida law allows you to seek compensation from the owner of the vehicle responsible for the accident. An experienced <a href="/">Clearwater auto accident attorney</a> can help you fight for your rights. Contact the Law Office of Paul B. Genet, P.A., if you need to speak with someone today.</p>
<p>Resource:</p>
<p><a href="https://scholar.google.com/scholar_case?case=1346378335429314959&amp;hl=en&amp;as_sdt=6,47">https://scholar.google.com/scholar_case?case=1346378335429314959&amp;hl=en&amp;as_sdt=6,47</a></p>
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		<title>Second Florida Court Rejects “Cap” on Malpractice Damages</title>
		<link>https://www.genetlaw.com/second-florida-court-rejects-cap-on-malpractice-damages/</link>
		
		<dc:creator><![CDATA[Jay Butchko]]></dc:creator>
		<pubDate>Mon, 28 Nov 2016 18:00:40 +0000</pubDate>
				<category><![CDATA[Medical Malpractice]]></category>
		<category><![CDATA[Birth injuries]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Attorney]]></category>
		<category><![CDATA[Clearwater Medical Malpractice Attorneys]]></category>
		<category><![CDATA[Florida medical malpractice claims]]></category>
		<category><![CDATA[Florida medical malpractice lawyer]]></category>
		<category><![CDATA[Florida medical malpractice lawyers]]></category>
		<category><![CDATA[Malpractice Damages]]></category>
		<guid isPermaLink="false">http://www.genetlaw.com/?p=2549</guid>

					<description><![CDATA[Last year, a Florida appeals court held that a state law limiting certain types of damages in medical malpractice cases was unconstitutional. That decision was appealed to the Florida Supreme Court, which heard arguments this past June. But at least one other Florida court is not waiting for the Supreme Court to rule, and...  <a href="https://www.genetlaw.com/second-florida-court-rejects-cap-on-malpractice-damages/">Read More &#187;</a>]]></description>
										<content:encoded><![CDATA[<p><a href="/wp-content/uploads/2016/11/MedLawsuit2.jpg"><img decoding="async" class="alignnone size-medium wp-image-2551" src="/wp-content/uploads/2016/11/MedLawsuit2-300x154.jpg" alt="medlawsuit2" width="300" height="154" srcset="https://www.genetlaw.com/wp-content/uploads/2016/11/MedLawsuit2-300x154.jpg 300w, https://www.genetlaw.com/wp-content/uploads/2016/11/MedLawsuit2.jpg 481w" sizes="(max-width: 300px) 100vw, 300px" /></a></p>
<p>Last year, a Florida appeals court held that a state law limiting certain types of damages in <a href="/practice-areas/medical-malpractice/">medical malpractice</a> cases was unconstitutional. That decision was appealed to the Florida Supreme Court, which heard arguments this past June. But at least one other Florida court is not waiting for the Supreme Court to rule, and has independently determined the state’s caps are unconstitutional.</p>
<p><strong>Mother, Child Receive Over $5 Million in Damages</strong></p>
<p>On October 26, the Florida Second District Court of Appeal issued its decision in <em>Port Charlotte HMA v. Suarez</em>. This is an appeal of a multi-million dollar medical malpractice verdict against a Port Charlotte, Florida, hospital. The plaintiffs are a six-year old girl and her mother, who sued the defendant over negligence that occurred during the daughter’s birth.</p>
<p>According to evidence presented at trial, the mother had preeclampsia, a pregnancy disorder commonly indicated by high blood pressure. The only cure for preeclampsia is delivery of the child. In this case, the child was delivered after just 26 weeks.</p>
<p>When delivering a child that premature, medical providers must take special precautions to stimulate the development of the baby’s brain and lungs. The hospital’s staff failed to do that here. As a result, according to court records, the child “has severe neurological impairments.” She will require full-time medical and personal care for the rest of her life.</p>
<p>A jury returned a verdict in favor of the plaintiffs on the issue of medical malpractice. The jury determined the hospital was 30 percent liable for the child’s injuries. (One of the hospital’s doctors, who previously settled with the plaintiffs, was held responsible for the remaining 70 percent.) The jury awarded over $17 million in damages to the mother and child, which included $5.25 million in noneconomic damages.</p>
<p>In malpractice cases, noneconomic damages refers to “pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses.” In 2003, Florida legislators limited total noneconomic damages per malpractice incident to $1.5 million. But last year, the Florida Fourth District Court of Appeal, applying an earlier decision from the Florida Supreme Court, held this limit violated a plaintiff’s right to “equal protection” of the law under the Fourteenth Amendment to the Constitution.</p>
<p>Although this case occurred in the Second District, the trial court said it was bound by the Fourth District’s decision as there was no contrary ruling by the Second District. And in its October 26 opinion, the Second District signaled its agreement with its sister court. In 2014, the Supreme Court struck down the state’s cap on noneconomic damages in wrongful death lawsuits. Given that “there is no real distinction” between the situation faced by multiple claimants in medical malpractice cases as in wrongful death lawsuits, the Second District said there was similarly no reason to uphold damage caps for either.</p>
<p><strong>Get Help From a Florida Medical Malpractice Lawyer Today</strong></p>
<p>The Second District’s decision is welcome news for medical malpractice victims and their families, although it may be a short-lived victory depending on the Supreme Court’s forthcoming review of the Fourth District’s prior decision. Regardless of how the Supreme Court rules, if you or your child has suffered due to a healthcare provider’s negligence, you should speak with a Clearwater medical malpractice attorney as soon as possible. Contact the <a href="/">Law Office of Paul B. Genet, P.A.</a>, at 727-510-8802 today if you need to speak with someone right away.</p>
<p>Resource:</p>
<p>2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/October/October%2026,%202016/2D15-3434.pdf</p>
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