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(954) 523-9922 or cryder@hpslegal.com.

Category: Blog

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.

HPS LEGAL ALERT: What It Takes to Select the Right Expert for Your Medical Malpractice Case

By James S. Haliczer

August 2, 2022

The law requires a medical malpractice plaintiff to present the testimony of a qualified expert or face a directed verdict at the close of the case in chief.  While the testimony of a defendant doctor in a medical malpractice case is important, the plaintiff attorney’s expert’s testimony is of equal, if not greater, significance. Therefore, the initial expert selection process is a critical element to a successful case, especially a medical malpractice case. 

What Makes a Good Expert?

There are a host of variables that an attorney seeking an expert will need to consider, some more important than others. 

Is the expert qualified?

The most obvious variable is whether the expert is truly qualified in both the legal and factual senses. In the medical malpractice plaintiff space that means a board certified expert must be in the same field as a board certified defendant.  An expert’s credentials are typically found in their curriculum vitae, and often online. With these variables in mind, how do you go about finding, for example, the best pediatric gastroenterologist expert for your case? Some sources to consider when finding the best expert include:

Some other variables to consider when selecting your expert are:

Is the expert willing to work?

The expert needs to be willing to read depositions, medical records and whatever else you choose to send to them. They must be able to analyze the material provided and be prepared to formulate opinions that are compatible with your theories of your case.

Does the expert believe in your case?

There are so many medical experts available to you. Of course, it is best if the expert you select already believes in the merits of your case before you hire them. That can often be ascertained by performing a search of the available medical literature that discusses the facts of your case at hand, authored or co-authored by your potential medical expert. This research should be conducted in primary sources, like peer reviewed medical journals, not a general search via Google. Always remember to check your sources!

Is the expert a good communicator?

Finally, it has been our experience that juries respond more to general notions of believability, simplicity and measured advocacy, rather than responding simply to credentials.  Most juries don’t pay a lot of attention to a given expert’s credentials.  The experts who can explain their opinions in a way that’s believable, communicated in easy to understand terms, and is able to calmly withstand intense cross-examination by opposing counsel, are the types of experts whose opinions are largely adopted by juries. If they can’t communicate their thoughts and opinions in a way a jury can understand, they may not be the expert for you.

Key Takeaways

A critical element to a case is selecting the highest quality expert (or multiple experts) for your medical malpractice case. Consulting with a seasoned attorney who has accumulated a contact list of various experts, in various fields of medicine, and has established trusted relationships with those experts, allows the best opportunity for a successful outcome. If you are dealing with a medical malpractice case and would like to discuss your options, please contact Jim Haliczer or any member of our Haliczer Pettis & Schwamm legal team.

 

HPS LEGAL ALERT: Florida Supreme Court Takes Baby Steps to Align Procedural Rule & Statute Governing Proposals for Settlement

By Debra P. Klauber

July 8, 2022

The Florida Supreme Court, on its own motion, recently amended Florida Rule of Civil Procedure 1.442, which governs the procedural aspects of proposals for settlement. The court explained that the changes were made in an effort to “align” the rule of procedure with the substantive portion of the Florida Statute (section 768.79) dealing with such settlement proposals. Because the statute does not specifically refer to any “nonmonetary” terms, the court specifically removed the language in the rule that allowed any nonmonetary conditions.

What Does This Mean in Practice?

Basically, a proposal for settlement will now simply set forth the amount that is being offered (or demanded) to settle the case, with an express reference to any portion that should be applied to attorneys’ fees or punitive damages. However, a proposal can no longer require the execution of a release, a confidentiality agreement, or any other nonmonetary term. If the proposal is accepted, the case will just be dismissed, with prejudice.

The statute and rule allowing for proposals for settlement were designed with an admirable goal in mind: to facilitate settlement and the prompt resolution of litigation, which generally confers a benefit on all of the parties involved. In essence, a party who offers to settle a lawsuit for a reasonable amount of money is permitted to recover attorneys’ fees incurred after that settlement offer is made if the opposing party unreasonably refuses to accept it. Whether the offer was reasonable (and the refusal unreasonable) is ultimately determined by the amount of the final judgment in the case.

Lingering Litigation Issues

Unfortunately, the complexities of the rule and the statute have generated significant collateral litigation, which defeats the original purpose of the proposals themselves – early resolution. Litigation over proposals for settlement has burdened our trial and appellate courts and delayed the resolution of litigation for parties and their counsel. The courts have addressed, time and again, the procedural requirements, such as the informal service of a proposal for settlement via e-mail versus a formal “service” e-mail. The courts are continually faced with arguments about whether or not a proposal (or the attached releases and other nonmonetary terms) are ambiguous. And the courts have been bombarded with cases involving convoluted questions about joint proposals, which are served by, or upon, multiple parties. Throughout the last decade or so, the pendulum in Florida’s appellate courts has been swinging back and forth between decisions utilizing a rigorous construction of the rule and statute and decisions applying a more common sense approach to the enforceability of these proposals.  

Key Takeaways

This current amendment to the rule should eliminate some confusion, and hopefully some of this collateral litigation, so a proposal can easily be evaluated from a financial perspective. If the amount of the offer “beats” the ultimate judgment by 25%, it ought to entitle the offeror to fees. However, there is still work to be done, particularly in the context of joint proposals which seemingly require the amount of the proposal to be apportioned between those parties regardless of the nature of the relationship between them. Another change that ought to be considered is an effort to align the lingo. In fact, the Florida Legislature ought to make the next smart move by amending the statute to call these proposals for settlement what they are, as opposed to the outdated offers of judgment. These are baby steps, but hopefully we are headed in the right direction. If you have any questions about how this amendment may impact your legal matter(s) and would like to discuss your options, please contact Debbie Klauber, or any of our Haliczer Pettis & Schwamm legal team.

 

HPS LEGAL ALERT: THE CHALLENGES OF UNCOVERING MEDICATION ERROR-RELATED MALPRACTICE

By Richard L. Allen, Jr.

June 7, 2022

There are approximately 6,800 prescription and numerous over-the-counter medications and supplements that people in the U.S. use to treat a variety of health problems. Even the best physician, nurse, pharmacist or technician cannot be familiar with all exact dose amounts, routes of administration, and the types of drug interactions that can occur. Unfortunately, in the U.S., this results in 7,000-9,000 people dying and thousands more suffering injuries per year, all because of health care providers making medication errors. It is fairly simple to recognize an obvious case of medical malpractice, like when the surgeon leaves a sponge or clamp in the abdomen. But many drug injuries are not so easy to identify. 

The Institute for Safe Medication Practices

The Institute for Safe Medication Practices (ISMP) is the only 501(c)(3) nonprofit organization devoted entirely to the study of preventing medication errors and is known as the “the gold standard for medication safety information.” Experts at the ISMP have conducted numerous studies on several areas where problems can occur, including: 

  1. error-prone abbreviations
  2. unclear dose designations
  3. confusing drug names
  4. errors administering high-alert medications
  5. failure to adhere to established guidelines

Examples of Medication Errors

Oftentimes, medication errors occur when distractions interfere with the health care provider’s attention. These errors range from prescribing errors, dose miscalculation, incorrect dose administration, and failed communication. Hospital cost-cutting may also be a contributing factor. For example, a patient suffering a stroke due to blot clots could be accepted as a natural consequence. Or did the clots form as a result of the drug error? An insufficient dose of heparin could actually be the cause of their pulmonary embolus or stroke. Or, a patient fails to wake up after surgery. It could have been a rare but unavoidable reaction to anesthesia. But was the patient on a pain pump? How much fentanyl did the patient receive before during and after surgery? The medicines prescribed and how they were administered will need to be reviewed, in order to eliminate or highlight possible root causes of the patient’s drug-related injury.

The Electronic Evidence Trail

Federal law requires that medical record software records every entry made and changed, who made the entry, what time was it entered, every time a record is accessed, and from what computer terminal. Certain medical devices also have data stored in them and are a treasure trove of information. And don’t forget that it is routine for health care employees to communicate on electronic devices at work on with each other on certain patient issues. So there are various and voluminous sources of electronic data that should also be examined.

Key Takeaways

These are just some of the scenarios that need to be explored when presented with a possible medication error medical malpractice case. Even more challenging is what specific evidence to look for, and where, in order to support the suspicion of a problem with the ordering, preparing, distributing or administering of a drug. Consulting with an attorney with a pharmaceutical background, who is familiar with how medications are prescribed and administered, can assist in determining whether this particular type of malpractice case has occurred. If you are dealing with a medical malpractice case (medication error-related or otherwise) and would like to discuss your options, please contact Rick Allen, or any other member of our Haliczer Pettis & Schwamm legal team.

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.