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 Sheriff’s Alleged Misconduct Not “Medical” Negligence

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.

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’s office conducted an examination. The victim advised the nurse he suffered from liver problems and was under a physician’s care. The nurse further observed the victim had a severely jaundiced condition, which is a symptom of liver failure.

Despite the nurse’s findings, she cleared the victim to be admitted to jail. She did contact the jail’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.

Within 20 minutes of entering jail, the lawsuit claims “his conditioned had very rapidly deteriorated.” And although two sheriff’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’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.

The executor of the victim’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’s motion to dismiss, but partially granted a similar motion brought by the contractor.

The judge noted that the estate’s claims against the sheriff were for ordinary negligence, therefore they did not have to comply with Florida’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’s deputies to promptly seek treatment does not involve “medical treatment or diagnoses,” as contemplated by Florida’s malpractice laws.

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.

Get Help From a Florida Medical Malpractice Lawyer

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 Law Office of Paul B. Genet, P.A. at 727-510-8802 today.

Resource:

scholar.google.com/scholar_case?case=10640900208170536295&hl=en&as_sdt=2006

South Florida a Haven for “Relatively Cheap” Cosmetic Procedures

For example, on August 16 a state appeals court reversed an “emergency order” issued by the Florida Department of Health issued against a well-known Miami plastic surgeon. The Department has accused the plastic surgeon of “severely injuring” a number of patients during 2015, according to the Miami Herald. Specifically, four female patients between the ages of 29 and 35 were injured during liposuction procedures. The Herald noted that the alleged malpractice included “charges that [the plastic surgeon] used the wrong concentration of a local anesthetic, that he perforated patients’ organs and that he failed to discharge patients to a facility capable of providing appropriate care.”

The plastic surgeon is particularly noted for a cosmetic liposuction procedure where fat is grafted onto a patient’s buttocks. This is commonly known in the media as a “Brazilian butt lift.” The Washington Post, citing statistics from the American Society of Plastic Surgeons, noted recently that “butt augmentations using fat grafts” are the “fastest growing” type of cosmetic procedure performed in the United States.

The Post noted that many patients come to Florida to seek these procedures at “relatively cheap” clinics in the Miami area. But there are also concerns that many under-qualified plastic surgeons are performing these types of procedures without taking proper safety precautions. The Post said a 29-year-old woman died of organ failure after a botched butt lift at a Miami clinic that also has ties to the plastic surgeon recently charged by Florida authorities.

In response to multiple complaints, the Department of Health issued an “emergency order” in February restricting the plastic surgeon from performing any further liposuction or fat-graft procedures. The Department said this action was necessary because the plastic surgeon presented an “immediate serious danger” to the public’s health.

But the Florida First District Court of Appeal quashed the Department’s order. The court noted the Department’s February order came nine months after his alleged malpractice, and that he “has not been the subject of any prior disciplinary actions.” Given that, the court determined the emergency restrictions were inappropriate. The plastic surgeon is therefore allowed to resume his practice pending the outcome of an administrative hearing on the merits of the Department’s complaint.

A Florida Medical Malpractice Attorney Can Help

Even if the Department ultimately succeeds in revoking the plastic surgeon’s medical license, it may come as cold comfort to the victims and their families. The Herald said the doctor chose not to carry medical malpractice insurance—a practice permitted under Florida law—which could limit victims’ ability to recover damages in any civil lawsuits.

If you have been injured due to a plastic surgeon’s negligence, it is imperative that you speak with an experienced Clearwater medical malpractice attorney right away. Contact the Law Office of Paul B. Genet, P.A., at 727-510-8802 if you require immediate legal assistance.

What Is the Statute of Limitations for Medical Malpractice?

Florida’s statute of limitations does require some explanation. Different types of cases have different time limits. To be sure, the statute of limitations governing actions based on negligence, such as car accidents, is four years. This means that in order to recover compensation for any damages you sustained in an accident, you would have to file a lawsuit within four years from the date of the wreck; doing so even a day late could bar you from presenting your case. Some cases have shorter time limits.

For medical malpractice, the general statute of limitations in Florida is two years. Now there is an important qualifier here. Normally a statute of limitations begins (or “tolls”) from the date of the incident giving rise to the victim’s injury. So if you are injured due to negligence while undergoing a surgical procedure, then the normal statute of limitations requires you file a medical malpractice lawsuit within two years of the date of when you knew or should have known with the act of due diligence that there was medical negligence.

Belated Discovery of Malpractice

The problem is, many cases of medical malpractice are not fully discovered until long after the original surgery or treatment. For this reason, the Florida statute of limitations may be extended to two years “from the time the incident is discovered or should have been discovered with the exercise of due diligence.” In other words, if you have surgery in March 2015, but you do not learn about the physician’s malpractice until October 2015, the statute of limitations in your case would run until October 2017, provided there is no way you could have reasonably learned of the physician’s malpractice at an earlier date. And in any event, a lawsuit must be filed within four years of the original incident.

Fraud or Concealment

However, the statute of limitations may be extended even further if there is evidence that “fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury.” For instance, if a health care provider gave you false records in an attempt to hide evidence of malpractice, you may be able file a lawsuit even more than four years after the original incident. But the statute of limitations, even with such fraud or concealment, still exists, although it may be extended up to seven years.

Injuries to Children

There is one final caveat on the statute of limitations. A claim brought on behalf of an injured child is not subject to any of the time limits discussed above, provided the lawsuit is initiated “on or before the child’s eighth birthday.” So, for example, if a child is injured due to malpractice when she is one year old, a malpractice claim could still be brought when she is seven years old, even if there was no fraud or concealment on the part of the defendant.

Get Help from a Florida Medical Malpractice Lawyer

The statute of limitations is only one procedural hurdle victims need to clear when pursuing a malpractice claim. That is why you should never go into court without the assistance of an experienced Clearwater personal injury attorney. Contact the Law Office of Paul B. Genet, P.A., if you would like to speak with someone about your case right away.