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Our attorneys are routinely contacted by the news media to comment on legal issues. To coordinate interviews, journalists should contact Carrie Ryder, the firm’s Director of Marketing, at
(954) 523-9922 or cryder@hpslegal.com.

Author: hpslegal

HPS Legal Alert: The Difficulty When Proving Causation in Medical Malpractice Cases

By Kenneth J. Miller

October 4, 2022

In our previous HPS Legal Alert, we discussed that when attorneys bring forth a medical malpractice claim, they need to prove that there was a violation of the Standard of Care. In this alert, we will discuss the second step to successfully proving liability in a medical malpractice claim, which is to establish Causation.

Many articles discuss what negligence is and how to prove it, but Causation is often an overlooked element of a medical malpractice case. For guidance on how to prove Causation, attorneys must look to the Courts. The primary standard for Causation is derived from a decision by the Florida Supreme Court, Gooding vs. University Hosp. Bldg., Inc.. In this decision the Court established that Plaintiffs must show that the injury more likely than not resulted from the Defendant’s negligence. There are many types of records, statements, and reports that can be used to prove this negligence. However, proving Causation almost always requires the use of expert witnesses. That is why so many medical malpractice claims come down to the testimony of experts.

The Challenges with Causation

In a single Defendant medical malpractice case, that can often be accomplished with simply needing one physician expert to provide their opinions on both Standard of Care violations and Causation. However, this burden of proof becomes a much more complex endeavor when there are multiple Defendants, such as in hospital based claims, where it is alleged that non-physician staff (ex. nurses, physician assistants, or nurse practitioners) violated the Standard of Care. Because while non-physicians can be Standard of Care experts, they cannot be Causation experts. Now an attorney needs to double the amount of experts they need for their case.

The practical challenges in multiparty cases often come to light once the scheduling of depositions begin. What if the retained Causation expert needs to give a deposition before the Standard of Care expert? Then the expert will be forced to assume there is a Standard of Care violation which creates cross examination points. Or what if at trial the expert’s schedules do not match the order of proof that the attorney wants to establish? Then the attorney runs the risk of the jury not being able to easily follow a linear “cause and effect” timeline of events. This often leads to issues like having to video record your expert to present their testimony, rather than having them appear live in the courtroom. Not ideal!

Key Takeaways

Medical malpractice is one of the most complex types of litigation, especially in the State of Florida. Causation can be one of the most difficult and challenging things to prove in a medical malpractice case. The attorneys and medical professionals of Haliczer Pettis & Schwamm understand what it takes to help our clients successfully obtain justice. If you have a potential medical malpractice case and are interested in learning more about your options, contact Ken Miller, or any member of our legal team to discuss.

OCBA & HPS: The Challenges of Uncovering Medication Error-Related Malpractice Seminar

This CLE seminar will discuss why medication-related errors are an issue, the types of medication errors that can take place, with real-world examples and case studies, and what can be done to uncover when a medication error malpractice case has occurred.

Speakers: Rick Allen and Richard Schwamm from the Orlando office of Haliczer Pettis & Schwamm

CLE: 1.0 General Credit;
Certification Credit: 1.0 Health Law
 

Date: Thursday, October 13, 2022

Time: 12:00 p.m. – 1:00 p.m.

Location: Orange County Bar Association, 880 N. Orange Ave., Orlando, FL 32801. Please arrive a few minutes before 12 p.m. to allow time to sign in.

REGISTER HERE

HPS Legal Alert: What Does It Take in Florida to Prove the Violation of the Professional Standard of Care in a Medical Malpractice Case?

By Kenneth J. Miller

September 9, 2022

In every negligence case the elements are the same: duty, breach, causation, and damages. Medical malpractice cases are a specific type of negligence case. The difference is that when bringing a medical malpractice claim, instead of discussing the duty and breach, the legal discussions revolve around whether there was a violation of the Professional Standard of Care.

What to Prove?

The Florida legislature enacted Chapter 766 of the Florida Statutes in response to the State of Florida’s medical malpractice insurance crisis in the 1980s. One of the provisions contained in Chapter 766 codified what must be proven to establish a medical malpractice claim. Whether the claim is for injury or death, when it is alleged to be the result of medical malpractice, Florida Statute 766.102 sets out what the Claimant must prove in order to prevail, which is further defined as “that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as an acceptable and appropriate by reasonably prudent similar healthcare providers.”

How to Prove?

That certainly is a mouth full and seems easy, right? What it means in real time is that this creates a situation where, unlike a general negligence claim, expert witnesses (or multiple expert witnesses) are required in order for the Claimant to establish a violation of the Professional Standard of Care.

First, during the pre-suit period, there needs to be an affidavit from qualified expert(s) whose opinions were that there was a breach in the prevailing Professional Standard of Care. Then, once the case goes into suit, and discovery is taken, the qualified expert(s) will have additional facts to review. So there is the intense task of getting the experts prepared enough to provide a winning deposition and to testify at trial. All of this is necessary to prove a violation of the Professional Standard of Care.

That is one of the many reasons medical malpractice cases are different from general negligence cases, and it is also one of the main reasons why the overall cost (monetarily and manpower-wise) for an attorney or law firm to take on such a case may be much higher than handling other types of legal matters. 

But Wait! There’s More! 

Establishing a violation of the Professional Standard of Care is just one piece that needs to be addressed when successfully litigating a medical malpractice claim, but uncovering this violation is something that needs to happen at the outset. If you or someone you know has been involved in a case where there may have been a violation the Professional Standard of Care and would like to discuss next steps, please contact Ken Miller or a member of the Haliczer Pettis & Schwamm legal team.

Press Release: 5 HPS Attorneys Listed in Best Lawyers for 2023, Eugene Pettis Listed as “Lawyer of the Year”

August 25, 2022

Press Release

Contact: Carrie T. Ryder
Director of Marketing
954.523.9922
cryder@hpslegal.com

Haliczer Pettis & Schwamm (HPS), a leading Florida catastrophic injury law firm, is pleased to announce that James S. Haliczer, Eugene K. Pettis, Richard B. Schwamm, Kenneth J. Miller and HPS’s newest attorney, Richard L. Allen, Jr., are included in the 2023 Edition of The Best Lawyers in America. In addition, Eugene Pettis is listed as a “Lawyer of the Year.” Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Practice area rankings are as follows:

Lawyer of the Year

  • Fort Lauderdale
    • Eugene K. Pettis – Medical Malpractice Law – Plaintiffs  

Best Lawyers

  • Fort Lauderdale, FL
    • James S. Haliczer 
      • Medical Malpractice Law – Plaintiffs
      • Personal Injury Litigation – Plaintiffs
    • Eugene K. Pettis
      • Medical Malpractice Law – Plaintiffs
      • Personal Injury Litigation – Plaintiffs
    • Kenneth Miller 
      • Medical Malpractice Law – Plaintiffs
      • Personal Injury Litigation – Plaintiffs
  • Orlando, FL
    • Richard B. Schwamm
      • Medical Malpractice Law – Plaintiffs
      • Personal Injury Litigation – Plaintiffs
    • Richard L. Allen, Jr. 
      • Personal Injury Litigation – Plaintiffs

About Best Lawyers

Lawyers on The Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional expertise, and undergo an authentication process to make sure they are in current practice and in good standing.

About Haliczer Pettis & Schwamm

Established in 1996, Haliczer Pettis & Schwamm has spent the past 25 years dedicated to seeking justice for their clients. The firm and its attorneys currently focus on representing clients in the areas of medical malpractice, wrongful death, personal injury and workers’ compensation matters, with offices located in both Fort Lauderdale and Orlando. Over the years, the attorneys at HPS have built a reputation for strong client advocacy and integrity. Outside attorneys are encouraged to contact us for co-counsel opportunities. Visit www.hpslegal.com to learn more about our firm.

Our priority is to maintain the safety and comfort of our clients during the COVID-19 global health pandemic. We offer an array of telephone and virtual meeting formats (ex. ZOOM) so you may speak with our attorneys while protecting you and your loved ones. If interested, please call us at (954) 523-9922 or email us at firm@hpslegal.com–to discuss all our confidential remote meeting options. We look forward to continuing to help you in these challenging times.