No Changes to “Cost, Award, and Fairness incentives” Allowed

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.

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.

This arbitration agreement departed from Florida law in several respects. First, the agreement called for appointment of arbitrators of the parties’ choosing, rather than independent arbitrators. Second, the agreement allows the defendants to opt-out of the state’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.

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’s decision.

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’s medical malpractice arbitration law is therefore unenforceable.

A Florida Medical Malpractice Lawyer Can Help

The Supreme Court’s decision is welcome news for thousands of vulnerable Florida patients who unknowingly sign away their legal rights every year at their doctor’s office. If you have been the victim of a health care provider’s negligence, it is important to work with a qualified Clearwater medical malpractice attorney. Contact the Law Office of Paul B. Genet, P.A., at 727-510-8802 to speak with an attorney right away.

Source:

scholar.google.com/scholar_case?case=16515829673351842950&hl=en&as_sdt=6,47

Medical malpractice cases generally involve allegations of negligent care against a doctor, hospital, or another medical provider. If the plaintiff can prove there was negligence, he or she is entitled to recover monetary damages. Florida law generally recognizes three categories of damages in personal injury cases: economic, noneconomic, and punitive.

Economic Damages

The most common form of damages are intended to compensate the plaintiff for actual economic losses suffered as a result of the health care provider’s malpractice. These are known as “economic” or “actual” damages. This includes any costs incurred for past and future medical care necessary to correct the negligent doctor’s mistake and any necessary rehabilitation, such as physical therapy or home nursing care.

Economic damages also cover most, but not all, of the plaintiff’s lost wages and earnings while recovering from the health care provider’s negligence. Under Florida law, a successful medical malpractice plaintiff is only entitled to receive “80 percent of wage loss and loss of earning capacity.”

Noneconomic Damages

In contrast to actual or economic damages, noneconomic damages (sometimes called “general damages”) refers to current and future losses that cannot be properly quantified. In other words, there is no way to quantify a plaintiff’s ongoing pain following a malpractice incident, even though it is quite real. Florida law defines noneconomic damages as any award designed to compensate the plaintiff for the following:

• pain and suffering;
• inconvenience;
• physical impairment;
• mental anguish;
• disfigurement; and
• loss of capacity for enjoyment of life.

Florida also caps noneconomic damages. For each malpractice claim, individual medical practitioners (regardless of the number involved) cannot be held liable for more than $500,000 in noneconomic damages. A non-practitioner defendant, such as a corporation that owns a hospital, cannot be liable for more than $750,000 in noneconomic damages.

There are some exceptions to these limits. If the plaintiff dies or is left in a “persistent vegetative state” due to the defendant’s malpractice, the caps on noneconomic damages increase to $1 million and $1.5 million for practitioner and non-practitioner defendants, respectively. A judge may also award noneconomic damages in excess of the caps if there are “special circumstances” that would render the limits unjust.

Punitive Damages

Finally, there are damages that are intended, not to compensate the plaintiff, but to punish outrageous or immoral conduct on the part of the defendant. These are known as “punitive damages.” Most malpractice cases do not involve punitive damages since they arise from negligence rather than intentional acts of violence against the plaintiff. But there may be situations—such as a doctor sexually molesting a patient under anesthesia—where punitive damages may be available. Florida law normally limits punitive damage awards to the lesser of $500,000 or three times the amount of compensatory damages awarded in the same case.

Get Help From a Florida Medical Malpractice Attorney

Damages are a complicated legal issue—one of many that arise in the typical malpractice lawsuit. That is why if you have been injured due to a health care provider’s negligence, you need to work with an experienced Clearwater medical malpractice lawyer who understands Florida’s legal system. Contact the Law Office of Paul B. Genet, P.A., at 727-510-8802 if you would like to speak with an attorney right away.

Resource:

flsenate.gov/laws/statutes/2011/766.118

How One Percent of Doctors Account for One-Third of Malpractice Payouts

The study was prepared by researchers affiliated with Stanford University and the University of Melbourne in Australia. The researchers analyzed over 66,000 medical malpractice claims reported to the National Practitioner Data Bank between 2005 and 2014. This data reflects malpractice claims where the patient received compensation, not merely those who filed lawsuits.

Based on this data, the researchers said “just 1 percent of practicing physicians accounted for 32 percent of paid malpractice claims.” Dr. Michelle Mello, one of the study’s authors and a law professor at Stanford, said this concentration “is larger than has been found in the few previous studies that have looked at this distributional question.” She said the data suggested some physicians are especially prone to malpractice claims, and that this “may be a bigger problem today” than it was when earlier studies were conducted more than two decades ago.

The key reason for the 1 percent concentration, according to the study, is a high rate of recidivism among physicians who pay malpractice claims. For instance, a doctor “who had two paid claims had almost twice the risk of another one” versus a physician with only one prior paid medical malpractice claim. And doctors with six or more paid claims—yes, they do exist—were “12 times” more likely to have another paid claim.

The study also looked at the demographics of doctors with paid malpractice claims. Among other things, male doctors had “a 40 percent higher risk of recurrence than female physicians.” Doctors under the age of 35 also had a lower risk of recurrence versus older physicians.

Dr. David Studdert, another study co-author, said this demographic information may be able to “predict accurately which physicians are going to become frequent flyers,” which in turn may prompt hospitals (and their liability insurers) to “kick out the high-risk clinicians, essentially making them someone else’s problem.” Dr. Studdert cautioned, however, that this was not necessarily be the most constructive approach either for improving patient safety or reducing litigation risks.

Get Help from a Medical Malpractice Attorney

Medical errors are not simply a subject for academic study. They impact the daily lives of victims and their families. That is why if you or a loved one has suffered due to a medical provider’s negligence, it is important you take action and seek assistance from someone who understands the industry. An experienced Clearwater medical malpractice attorney can assess your case and help you seek compensation from the responsible parties. Contact the Law Office of Paul B. Genet, P.A., we are available for consultation 24/7 as we understand that you may need assistance during non-business hours. Our phone number is 727-510-8802.

County EMS Faces Negligence Claim Over Infant’s Death

A Florida appeals court recently addressed a tragic case involving the death of an 11-month-old child. In November 2007, emergency medical personnel working for Columbia County responded to a 911 call reporting the child was in “respiratory distress.” The EMS personnel only examined the child for 10 minutes before leaving. But less than an hour later, EMS received a second call declaring the child “was not breathing at all.” This time when emergency personnel responded, they took the child to a hospital. But it was too late and the child died the next day.

The child’s mother sued Columbia County for negligence and malpractice. In support of her complaint, she offered expert testimony from an emergency room physician who reviewed the case and opined Columbia County EMS workers “breached the prevailing professional standard of care by failing to put the child in the ambulance on their first run and take him to the hospital for evaluation and treatment.” The expert noted the ambulance was equipped with oxygen, and had the child received said oxygen promptly, it was “more likely than not” he would have survived. The expert further testified although the child’s vital signs appeared stable to the first EMS responders, they should have spent more than 10 minutes observing the child. And in any event, EMS protocol dictates taking an infant to the hospital any time there is a report of “respiratory distress.”

Columbia County moved to exclude the expert’s testimony and dismiss the lawsuit. The trial court granted these motions, agreeing with the county the expert’s conclusions were “premised on speculation.” More specifically, the court said the expert had no basis for questioning the report of the first EMS responders the child’s vital signs were normal, indicating he was not in respiratory distress at that time.

But the Florida First District Court of Appeal overruled the trial court and reinstated the mother’s lawsuit. The appeals court noted there was sufficient evidence in the record to support the expert’s opinion. Notwithstanding the EMS report, there was testimony from the child’s babysitter regarding his symptoms, as well as his documented history of asthma and other breathing problems. In other words, the appeals court said, the expert’s opinion was not manufactured out of nothing; rather, it reflected his judgment interpreting all of the available information. At a minimum, the court held, a jury is entitled to assess the expert’s credibility for itself.

Contact a Personal Injury Lawyer

This case illustrates the importance of expert testimony in establishing a malpractice claim. That is why if you or a family member have suffered due to a health care provider’s negligence, it is imperative you seek assistance from a qualified Clearwater personal injury attorney. Contact the Law Office of Paul B. Genet, P.A., if you would like to speak with someone today.