Florida Court Discusses Medical Malpractice Pre-Suit Requirement

In a recent case, a state appellate court issued an opinion in a Florida personal injury case requiring the court to discuss the state’s medical malpractice pre-suit requirement and whether the plaintiff’s case was required to comply with that requirement. Ultimately, the court determined that the defendant failed to establish, as a matter of law, that the plaintiff’s case sounded in medical malpractice, and thus the plaintiff did not need to comply with the pre-suit requirements.Florida’s Pre-Suit Notice Requirement Under Florida Statute section 766.106(2)(a), prospective medical malpractice plaintiffs must provide notice t...

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Florida Supreme Court Discusses When a Case Must Comply with the State’s “Onerous” Medical Malpractice Requirements

In Florida, lawmakers have determined that lawsuits bringing claims of medical malpractice must comply with additional requirements that are not necessary in Florida personal injury cases bringing claims under a traditional theory of negligence. In so doing, lawmakers put courts in the position of determining which cases should be classified as “medical malpractice cases” and thus be subject to the additional requirements. A recent decision issued by the Florida Supreme Court provides some much-needed guidance for how courts should sort out personal injury cases that lie on the line between traditional neglig...

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Plaintiff’s Slip-and-Fall Accident in Doctor’s Examination Room Deemed Not To Be “Medical Malpractice” Lawsuit

Earlier this month, an appellate court issued a written opinion in a Florida premises liability lawsuit that arose after the plaintiff fell off an examination table in the defendant doctor’s office. The court was tasked with determining if the plaintiff’s lawsuit should be dismissed because she failed to comply with the applicable statute of limitations. Ultimately, the court concluded that the plaintiff’s lawsuit was not a “medical malpractice” lawsuit as defined by the statute and that her claim need not comply with the stricter statute of limitations for medical malpractice lawsuits. The Facts of the Case The plaintiff was seeing the defendant doctor so that he could remove a catheter. When the doctor came into the examination ro...

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Florida Supreme Court Clarifies the Scope of “Amendment 7” in Recent Personal Injury Case

Before a Florida medical malpractice lawsuit proceeds to trial, the parties go through the pre-trial discovery process, in which each side requests information of the other side that they believe will be relevant in the case. While most relevant material is discoverable, historically some categories of evidence have not been discoverable because they fit within a privilege. In 2004, Florida citizens amended their constitution, adding a “right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” This has come to be known as Amendment 7. Recently, the Florida Supreme Court issued a written opinion clarifying how far Amendment 7 reaches. The Facts ...

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Florida Supreme Court Strikes Down Burdensome Defendant-Friendly Discovery Rule in Recent Medical Malpractice Case

Earlier this month, the Florida Supreme Court issued a written opinion in a case that will likely have great implications across the State. The case involved allegations of Florida medical malpractice brought by the wife of a man who died while in the defendant doctor’s care. The issue involved a discovery rule that allowed for a defendant doctor to compel the plaintiff to release the names of previous health care providers and allowed for the defendant to arrange meetings with the providers without the plaintiff or the plaintiff’s attorney present. Ultimately, the court concluded that the plaintiff had the ability to assert her husband’s right to privacy to challenge the discovery rules and that the rules were unconstitutional because they burdened the plaintiff’...

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Florida Appellate Court Concludes Medical Malpractice Plaintiff’s Case Was Timely

Earlier this month, a Florida appellate court issued a written opinion in a Florida medical malpractice case that required the court to determine if the plaintiff’s case was timely under the applicable statute of limitations. Ultimately, the court concluded that the plaintiff’s case was properly filed within the applicable statute of limitations, and a lower court’s finding to the contrary was reversed. As a result, the plaintiff’s case will be permitted to proceed toward trial or settlement negotiations. The Facts of the Case The plaintiff was a patient of the defendant radiologist. In 2008, the plaintiff underwent a mammogram, and the defendant interpreted the results. Despite finding a nodule that he knew at the time was likely to be cancerous, the defe...

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Florida Appellate Court Determines Conflicting Evidentiary Rulings Unfairly Hurt Personal Injury Plaintiff’s Case

Earlier this month, Florida's Fourth District Court of Appeal issued a written opinion in a Florida personal injury case brought by a former smoker who had developed lung cancer and Chronic Obstructive Pulmonary Disease (COPD). The plaintiff’s case was filed against the manufacturer of the cigarette brand that she used to smoke and claimed that her addiction to cigarettes was what caused her disease. The case presented the court with the task of determining whether the trial court's conflicting evidentiary rulings regarding the plaintiff’s expert warranted a new trial. Ultimately, the court concluded that the trial court’s error likely did have an effect on the jury’s decision to find for the defendant and ordered a new trial to take place. Th...

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Appellate Court Permits Medical Malpractice Plaintiff’s Case to Proceed Toward Trial, Rejecting Defendant’s Medical Release Waiver

Earlier this month, an appellate court in Florida issued a written opinion in a medical malpractice case that was brought by a patient who was seriously injured during a surgery that was performed by the defendant doctor. Prior to the surgery, the plaintiff signed a contract containing an exculpatory clause. The case required the court to determine if the exculpatory clause was valid, and if so, whether the lower court was proper to dismiss the plaintiff’s case. The Facts of the Case The plaintiff required a spinal fusion surgery. She arranged to have the defendant doctor perform the surgery. However, prior to the date of the surgery, the plaintiff signed a contract containing the following clause:
As of January 1, 2003, ...

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Florida Supreme Court Holds Medical Malpractice Plaintiff Is Entitled to Favorable Jury Instruction Where Evidence Suggests a Foreign Object Was Left in the Plaintiff’s Body

Earlier this month, the Florida Supreme Court issued an opinion in a medical malpractice case in which the plaintiff claimed that the defendant negligently left a four-inch piece of drainage tube in his body after a surgery. The court ultimately held that the statute stating that a foreign body left inside a patient’s body is prima facie evidence of negligence should apply to the case, even though the plaintiff knew exactly who left the tube in him. The Facts of the Case The plaintiff was admitted into the defendant hospital for a colon resection surgery. During the surgery, several feet of drainage tube were inserted into his body to help his body eliminate fluids after the surgery. A few days after the surgery, a nurse came to remove the tubi...

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Failure to Follow Procedural Rules May Result in Delay or Dismissal of Florida Personal Injury Cases

There are thousands of cases filed in Florida courts each month. In fact, so many cases are filed in Florida that the system would get bogged down if each case resulted in a jury trial. To help whittle down the number of cases that ultimately go to trial, Florida courts have enacted a series of procedural rules to ensure that only the most diligent plaintiffs and most meritorious cases are allowed to proceed to trial. Depending on the type of case and the named defendants, there may be dozens of applicable rules that must be strictly followed. A plaintiff’s failure to follow these rules can result in the court refusing to hear the case until the violation is remedied. In some cases, a court will dismiss a plaintiff’s case outright, preventing the accident victim from obtaining relief. A recent Continue reading →