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

The plaintiff in this case underwent wrist surgery at a Broward County hospital. The surgery required general anesthesia. While intubating the plaintiff, the anesthesiologist perforated her esophagus. Upon waking, the plaintiff “complained of excruciating pain in her chest and back.” She later required emergency surgery and had to be placed in a drug-induced coma. And even after requiring multiple additional surgeries and extensive therapy, the plaintiff “continues to suffer from pain throughout the upper half of her body and from serious mental disorders as a result of the traumatic incident.”

The plaintiff sued the anesthesiologist and the hospital, among other defendants, for negligence. A Florida jury ruled in her favor and awarded more than $4.7 million in damages. Of that amount, $4 million was for pain and suffering, i.e. non-economic damages. The trial judge, applying Florida’s medical malpractice caps, therefore had to reduce the jury’s award by approximately $2 million.

The victim appealed. In July 2015, the Florida Fourth District Court of Appeal ordered the jury’s original award reinstated, holding the cap on noneconomic damages was unconstitutional. The Court of Appeal said this result was required by an earlier Florida Supreme Court decision regarding caps on noneconomic damages in wrongful death cases.

In that case, five of the seven justices on the Supreme Court agreed the cap was unconstitutional, although the justices in the majority did not fully agree as to the reasons. Two justices explained the cap violated the constitutional guarantee that every person receive “equal protection” under the law, because different victims of the same accident may receive unequal treatment should they sue the negligent parties. Ultimately, the majority found the legislature’s reasons for imposing the cap were insufficient to justify violating the rights of medical malpractice victims.

But the Supreme Court’s decision only expressly applied to wrongful death claims, not non-fatal cases of medical malpractice. In this case, the Court of Appeal said there was no reason not to apply the Supreme Court’s holding to malpractice cases. “Whereas the caps on noneconomic damages…fully compensate those individuals with noneconomic damages in an amount that falls below the caps,” the appeals court said, “injured parties with noneconomic damages in excess of the caps are not fully compensated.”

The defendants have appealed the Court of Appeal’s decision to the Supreme Court. In December 2015, Florida Attorney General Pamela Jo Bondi filed a brief on behalf of the state defending the malpractice caps and asking the Supreme Court to reverse the lower court’s decision. The Supreme Court is expected to hear the case later in 2016.

Get Help from a Florida Malpractice Lawyer

If the Supreme Court does affirm the Court of Appeal’s decision, it would be an important victory for patients and others harmed due to medical negligence. If you or a family member has been a victim of such negligence, it is important to speak with an experienced Clearwater medical malpractice attorney who can advise you of your rights. Contact the Law Office of Paul B. Genet, P.A., to speak with someone right away.

Generally, you must bring your lawsuit within two years of the date that you discovered or should have discovered that your injuries were caused by medical malpractice. Unless a doctor or institution conceals the malpractice, patients cannot sue a healthcare provider more than four years after the malpractice took place — even if the victim or family was unaware of the medical mistakes beforehand. If there was concealment, you have seven years from the date of the alleged act of malpractice to file your claim.

There is an exception if the victim of malpractice was a young child. And any case that involves a birth injury gives you a longer amount of time to file. Because the rules are so complicated, you should never assume that it is too late to file without talking to an attorney.

2. Patients often cannot testify to important events

By definition, if you were the victim of medical malpractice, you were sick or injured. Due to your pain and/or fear at the time, you may not be able remember what happened to you and to describe it accurately. Furthermore, pain medications may dull your ability to think and remember. If the mistake occurred during or after a surgical procedure, you may have been unconscious. Even if you think that you remember, if you took any drug that tends to interfere with memory, the defendant’s attorney may argue that your testimony should not be trusted.

3. Identifying all possible defendants

In many, maybe even most, medical malpractice cases, there is more than one defendant who may be responsible. Depending on the circumstances, you may need to analyze the actions of all the doctors, nurses and other employees of the medical facility, and the hospital itself. If your claim involves a drug or medical device, the manufacturer, distributor and other companies in the chain of sale may be responsible.

In some cases, there may be several defendants, any or all of whom might be partially responsible, and the question is how to apportion the damages. In others, the question may be whether you were injured by malpractice at all, or if your situation resulted from a known side effect or surgical complication.

4. Medical professionals stick up for each other

In Florida, you may not file a lawsuit for malpractice unless it is accompanied by an expert opinion stating that the defendant was negligent and that you were injured as a result. Even a second doctor who believes that what happened to you should not have occurred may still be reluctant to point a finger at a colleague.

5. Obtaining full reimbursement for your damages

Medical malpractice insurance policies are limited to a certain amount of damages. If your damages exceed this amount, you may face the difficult task of trying to collect the rest from the defendant’s personal funds. In some cases, even people who appear to be wealthy have few assets – or they have learned how to make them hard to find.

Furthermore, Florida law caps recovery of noneconomic damages for medical malpractice at $500,000 in most cases, and $1 million in cases of death or very severe and permanent injuries. Medical bills, both past and future, are not limited to any predetermined amount. But recovery for pain and suffering, and any other kind of damages for which you cannot produce a receipt, are limited.

How can anyone win a medical malpractice case given all these obstacles?

If you or a loved one has possibly been the victim of medical malpractice in the Tampa-Clearwater area, you should call an experienced Florida medical malpractice attorney. Only certain firms have the experience to help you overcome these kinds of obstacles and win your case.