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Category: Blog

HPS Legal Alert: Recent FL Workers’ Comp Court Decisions Help Clarify Valcourt-Williams

By Michael M. Riedhammer, B.C.S. 

An employee just fell while working! Will he or she receive workers’ compensation benefits? Do we know why the fall occurred? Or do we have no idea what caused the fall? What exactly was he or she doing when the fall took place? Was it something related to their job? 

Valcourt-Williams is the Answer!

Just short of three years ago we thought we had all the answers when the First DCA gave us an opinion explaining when an accident “arises out of” employment and can be deemed compensable (aka Sedgwick CMS v. Valcourt-Williams).

As discussed in a previous HPS Alert, the key holding in Valcourt-Williams is that for a case to be compensable the injuries must “arise out of employment” which means that there must be “occupational causation.” Simply, the accident and injury must be caused by a risk that is not existent in the claimant’s non-employment life.  

Or is it?

In the years since that holding, the JCCs have tried to apply its rationale to the fact-specific cases that have come before them. Many cases that would have been held compensable before this decision were now being found to be not compensable. Recently, the First DCA issued two opinions that strive to better define the parameters of the Valcourt-Williams holding. 

FIRST OPINION

On February 16, 2022, the court released the decision of Silberberg v. Palm Beach County School Board and York Services Group, 2022 WL 480740 (Fla. 1st DCA 2022). In this case, the claimant, a teacher, was injured in a fall in the classroom. He fell when he stood up from a sitting position, after his leg went numb. The JCC denied compensability finding that the injury did not “arise out of” the claimant’s work as a teacher. The JCC followed Valcourt-Williams and found that there was no evidence that “the physical surroundings on the job in any way contributed to the risk of an injury more than they would have in non-employment life.” The appellate court agreed, and affirmed this decision. The First District seemed to be particularly swayed by the fact that the two medical experts, one hired by each party, agreed that the numbness in the claimant’s leg could have happened anywhere. The court also found it important that the cause of Claimant’s fall was not unknown; rather, there was an identifiable cause and, by all accounts, the claimant’s employment did not contribute to it. 

SECOND OPINION

Less than a week later, on February 21, 2022, a decision was released in Soya v. Health First, Inc. and CCMSI, 2022 WL 620619 (Fla. 1st DCA 2022). The claimant in this case was leaving work and fell into a door. She was carrying some non-work items and did not know what caused her to fall and there was no identifiable hazard. The JCC denied compensability finding that the employment did not expose the claimant to “conditions that would substantially contribute to the risk of injury to which the claimant would not normally be exposed during her non-employment life.” This time, the First DCA reversed, finding that the fall was compensable. Citing back to older decisions, such as Ross, Caputo, and Walker (which many practitioners believed had been indirectly overturned by Valcourt-Williams) the appellate court explained that “[w]here an accident’s cause is unknown, it is error to deny compensability on grounds that the accident ‘could have happened elsewhere.’” The court went on to declare that “[c]lumsiness is covered” and to reiterate that where there is only one cause of an accident (in this case, leaving work) the claimant should not be required to present more evidence showing that his or her employment is the major contributing cause. 

Key Takeaways

So, now we have all the answers, right? Well, at least we have some more things to consider. Every case is different and every case is going to fall somewhere on the spectrum of compensability. The close cases of whether an accident “arises out of” employment will require a deep dive into all of the available facts and evidence. The ultimate determination of whether an accident should be denied or whether an injured worker should receive benefits will require us to apply those facts and evidence to the continuously growing body of case law. Seeking the counsel of an experienced workers’ compensation attorney will certainly aid in this endeavor. If you are dealing with a Workers’ Compensation case and would like to discuss your options, please contact Michael M. Riedhammer (954.523.9922) or any member of our Haliczer Pettis & Schwamm legal team:

 

HPS LEGAL ALERT: FAILURE TO PROVIDE PREVENTATIVE CARE: A RISE IN RESPONSIBILITY

By Richard B. Schwamm

March 1, 2022

The annual check-up is the time when patients can see their physician and discuss the need preventative care services such as screening tests, x-rays, and other tests that may detect early signs of serious illness. The “failure of preventative care” occurs when routine or well-known standards of practice are not followed because the physician misunderstands the patient’s risk factors, fails to recommend necessary treatment or fails to order the right tests.

A Rise in Preventative Care Malpractice Cases

Due to the aging population, rising health care costs, etc., there has been an increased emphasis on preventative care services. As a result, the types and frequency of recommended preventative services has also increased. For example, in 2021, the U.S. Preventive Services Task Force lowered the age group from 55 to 50 for recommended lung cancer screenings for certain individuals. The goal is obvious – to prevent serious illness.

In the past, preventative healthcare was traditionally provided by internal medicine and family medicine physicians. But there has been a rise in the participation of mid-level providers (physician assistants and nurse practitioners) when it comes to administering health care services. The rise in the number of preventative care medical malpractice cases can be traced back, in part, to situations where the physicians put the care of patients (with high risk factors or complicated medical histories) into the hands of mid-level providers, who may not have the required level of experience or expertise to identify what treatment or testing is needed.

Common Preventative Care Services

  1. Tests (Blood Pressure, Cholesterol, Diabetes, etc.)

The American Heart Association recommends certain screening tests for coronary artery disease beginning at age 20. Most of us think these tests are obvious and should be done routinely. When they are not, patients with high blood pressure, high blood sugars and high cholesterols are at risk for serious illness.

  1. Cancer screenings (Mammograms, Prostate Exams, etc.)

Screenings for colon cancer are currently recommended to start at age 45 or younger if a patient is high risk. Failures by physicians to recommend the annual appropriate cancer screening(s) may be considered medical malpractice since it potentially deprives the patient of an early diagnosis and successful treatment.

  1. Vaccines (Child Immunizations, Shingles, etc.)

Vaccines save the lives of roughly 42,000 children on an annual basis. For children, immunizations are the most well-known type of preventative care, whether it’s for Hepatitis A and B, chickenpox, measles, mumps or Rubella.

Adults who are 50 years or older should get a Shingles vaccine. Posters at local pharmacies and commercials on TV have led to an improved understanding of the Shingles virus. However, concerns that most adults are not being properly educated remain. In one very recent case our firm handled, the physician failed to provide Shingles vaccine education and recommendations to a patient over the age of 50. Unfortunately, the patient developed Shingles and the severe complications from it, including facial paralysis and hearing loss. The failure of the physician and mid-level providers led to a lawsuit and significant settlement.

Key Takeaways

It is up to the patient to be their best advocate. But when physicians fail to properly administer preventative care per currently recommended guidelines, or are not directly involved in patient care, mistakes can happen. Consulting with an attorney who is familiar with these types of medical errors can assist in determining whether malpractice has occurred. If you are dealing with a medical malpractice case (preventative care-related or otherwise) and would like to discuss your options, please contact Richard Schwamm, or any other member of our Haliczer Pettis & Schwamm legal team.

 

HPS LEGAL ALERT: HEALTHCARE HAS A GENDER BIAS: WOMEN AT HIGHER RISK OF BECOMING VICTIMS OF MEDICAL MALPRACTICE

By Debra P. Klauber and Trisha Widowfield

January 19, 2022

Perhaps the question is rhetorical, but “are men and women treated the same in medical research, diagnosis and treatment?”* In our view, the answer is a resounding “no” and some of the statistics are shocking.

The History of Women’s Health Education

In 1977, the FDA recommended that women of childbearing age be excluded from clinical research studies. The goal was an admirable one – to protect unborn children. Unfortunately, the unintended consequences continued for decades and continue to impact healthcare today, when providers still use data from studies performed on men to treat women.  In 1993, Congress rescinded the 1977 policy and passed the National Institute of Health Revitalization Act, encouraging researchers to include more women and minorities in clinical trials. More recent data suggests that women account for almost half of the participants in clinical trials funded by the NIH.  However, a great deal of research on diseases and risk factors continues to be conducted without considering the relevance of sex, gender, race or ethnicity.

Dangerous Consequences for Women

Because we know less about women’s health, in general, women remain at a higher risk for falling victim to medical negligence. Women often have to wait much longer than men in order to obtain a proper diagnosis, and then have an even greater chance of being misdiagnosed. Because accurate women’s representation in clinical research is incomplete, generating treatment regimens from studies conducted largely or exclusively in men can have dangerous unknown results (for example,  biological differences between men and women lead to differences in how certain drugs are metabolized). When “common” symptoms of a disease or medical condition are based on the symptoms suffered by men, women who suffer from different symptoms end up with delayed diagnoses, which can be fatal.

Key Takeaways

If less is known about women’s health issues due to the disparity in how women are treated by health care providers and medical institutions, then women are more vulnerable to medical mistakes, in our view. Consulting with an attorney who has knowledge of these types of medical errors and access to a wide variety of experts can assist in determining whether malpractice has occurred. If you are dealing with a medical malpractice case, gender-specific or otherwise, and would like to discuss your options, please contact Debbie Klauber, Trish Widowfield, or any other member of our Haliczer Pettis & Schwamm legal team.

 

*It is important to note that healthcare disparities also result from factors other than sex or gender, such as race, socioeconomic status, disability, age and weight, among others. 

HPS LEGAL ALERT: COMMON FAILURES TO DIAGNOSE IN THE EMERGENCY ROOM

By James S. Haliczer and Kenneth J. Miller

November 16, 2021

Emergency Room staff are tasked with addressing a wide variety of ailments, in a fast-paced environment. Because of these factors, emergency rooms have higher error rates than many other areas and these errors can result in serious and tragic consequences.

Some ailments that are commonly missed in the Emergency Room include:

  • Heart attacks
  • Blood clots
  • Strokes
  • Infections
  • Complications from bone fractures

There are two common situations when Emergency Room misdiagnoses occur. The first, a dual diagnosis, is when signs and symptoms with which the patient presents can lead to two or more equally likely diagnoses.  The second is what we like to call the “unicorn” situation. This would be a case where the condition that needs to be diagnosed is rare and not likely to have been encountered often, if at all, by emergency room doctors.

The Dual Diagnosis Situation

The dual diagnosis situation, where a misdiagnosis results from two conditions with similar signs and symptoms, is a very common situation. A lawyer’s inadequate investigation or not having selected the right expert consultants could impact uncovering the validity of the case.

  • For example, when the victim suffers from broken bones that Emergency Room staff treats, but they miss the coinciding development of Compartment Syndrome. Victims of Compartment Syndrome can experience long-term neuromuscular deficits or even amputation. Medical experts agree that this syndrome is difficult to diagnose in the Emergency Room setting.
  • Another common situation is with cardiac cases — where the patient is having a heart attack and is thought to be having gastroesophageal reflux instead. This can lead to tragic circumstances, such as patients sent home only to die in the parking lot after a heart attack was mistaken for heartburn.

The Unicorn Situation

The unicorn is a rare circumstance. There just aren’t that many wildly unusual cases that present for the first time in an Emergency Room. But again, when an attorney is dealing with these types of possible cases, inexperience with requesting a thorough investigation or a reluctance to hire specific types of expert consultants can result in a failure to recognize when a potential client is dealing with a valid Emergency Room medical malpractice situation.

  • Valid cases have arisen relating to Wilson Disease, a rare disease with a significant lack of awareness by physicians. It requires extremely targeted testing, such as genetic testing, etc. If not uncovered soon enough and misdiagnosed as another condition, the victim can suffer long-term side effects such as permanent neurological dysfunction.
  • In the past meningitis in children was another type of health issue that was frequently missed by doctors. And even now, with major advances in education and Emergency Room detection procedures, meningitis is still one of the most common pediatric illness subject to misdiagnosis.

The Legal Challenges of ER Cases

The challenge when bringing a claim under either of these scenarios is that under Florida law, health care workers providing emergency services are not held liable in certain situations. This is known as the Good Samaritan Act.

That is why, when handling these types of cases, it is important to have research and expert opinions on hand to be able to ask the right questions. Was this a situation where no one should have expected the emergency services staff to make a diagnosis? Did the staff fail to act appropriately and created an unreasonable risk of injury that impacted the patient? For instance, did the Emergency Room physician make sure the specialist they requested conduct their follow up in a timely basis (ex. delays in diagnosis occur in up to one quarter of aneurysm victims)?

Key Takeaways

Consultation with an attorney with a deep bench of knowledge of the law (complicated state malpractice laws or specialty laws like The Good Samaritan Act), familiarity with standard Emergency Room procedures, familiarity with conducting comprehensive investigations, and access to a wide variety of seasoned experts, will impact the end result of uncovering when true Emergency Room medical malpractice occurred.

If you are dealing with a possible Emergency Room medical malpractice case and would like to discuss your options, please contact Jim Haliczer, Ken Miller, or any 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.