(The information on this site applies to Florida only)

Disclaimer:  What follows are reports of some of the significant medical malpractice cases ruled on by Florida's appellate courts and supreme court for approximately the past year.  These reports include only our brief synopsis about the legal significance of these cases, and you should always obtain and read the entire case opinion to see what else is in the opinion.  You should not attempt formal legal research on our site because we do not have full case databases nor are we able to keep our reports current on a day-to-day basis.  It should be remembered that all cases are fact specific, and even a slight change in the facts could change the outcome of these cases.        

Hotel was held liable for negligently selecting company to provide medical services to sick hotel guests. Riedel v. Sheraton Bal Harbour Assoc. __ So.2d __, 26 FLW D2635 ( Fla. 3rd DCA 11-7-01 ). Writing for the appellate court, Judge Ramirez stated that while Sheraton had no obligation to provide its guests with medical assistance, once it undertook to do so it had a duty to do so with reasonable care. Although the hotel represented to its guests it had a doctor available, when the plaintiff requested a doctor the company that the hotel contracted with provided only a physician's assistant with a temporary license. Following treatment by the physician's assistant, the plaintiff's wife died of diabetic ketoacidosis. Had Sheraton conducted any sort of background check on the medical company it contracted with, it would have learned that the company was operated by an inexperienced husband and wife team with no medical training, no medical license, no occupational license, no liability insurance, and no physician with hospital privileges at any local hospital. At trial, the jury found the hotel was not liable and the physician's assistant was not the hotel's agent. Stating that the issue of a legal duty is for the court, and not the jury, the appellate court reversed the trial court's denial of the plaintiff's motion for a directed verdict as to liability, and ordered a new trial on damages only. The appellate court also ruled that on remand, Sheraton should not be allowed to argue comparative negligence of the decedent by her failure to take her insulin or check her blood sugar. The court found that her negligence, if any, preceded the examination by the physician's assistant, so it merely provided the occasion for defendant's negligence, and was not a proper basis for the comparative negligence doctrine. 

Order requiring hospital defendant to produce emergency room records of seven non-party patients was upheld. South Dade Healthcare Group, Ltd v. Ghomeshi, __ So.2d __, 27 FLW D5 ( Fla. 3rd DCA 12-19-01 ). The defendant was ordered to produce the medical records of other patients after redacting patient identifying information. Although not cited in the opinion, the leading case in this area is still Amente v. Newman 653 So.2d 1030 (Fla. 1995), where the Florida Supreme Court upheld a trial court order requiring production of other patients' medical records when relevant, as long as the medical records are properly redacted to protect the patients' identities. Comment: On the other hand, plaintiffs are still not having much luck when seeking the actual names of non-party patients. See Staman v. Lipman 641 So.2d 453 (Fla. 1st DCA 1994) (Plaintiff not permitted to discover un-redacted patient sign-in logs); Community Psychiatric Centers of Florida, Inc., v. Bevelacqua 673 So.2d 948 (Fla. 4th DCA 1996) (Plaintiff may not discover names of psychiatric hospital patients who may have witnessed incident in which plaintiff was injured); Colonial Medical Specialties of South Florida, Inc. v. United Diagnostic Laboratories, Inc. 674 So.2d 923 (Fla. 4th DCA 1996) (Party may not discover addresses and telephone numbers of 300 medical office patients who were not parties to the litigation).

Error for trial court to refuse to honor New York stay order regarding actions against insureds of Frontier Insurance. Mantero-Atienza, M .D. v. Salvador , 807 So.2d 163 ( Fla. 3rd DCA 2002). The 3rd District ruled that, as a matter of comity and public policy the trial court should have honored a six month stay order issued by a New York court in connection with the New York rehabilitation proceedings involving Frontier Insurance.

When delay in cancer diagnosis does not drop the chance of cure below 50 percent, and cancer has not recurred, plaintiff may not recover damages for diminution of chance of survival, but may still recover for increased fear of cancer. Merced v. Qazi, ___ So.2d ___, 27 FLW D364 ( Fla. 5th DCA 2-8-02 ). Plaintiff alleged a 13 month delay in the diagnosis of her kidney cancer arising out of defendant’s misreading of a CT scan. Plaintiff’s expert testified in deposition that as a result of the delay, Plaintiff will have an increased risk of recurrence, but it is still probable that it will never recur. The expert also testified the treatment would have been the same even if diagnosed earlier. The trial court granted summary judgment for the defense finding that there were no compensable damages caused by the delay. The 5th DCA reversed, holding that while the plaintiff could not recover for the increased risk of recurrence under these facts, the plaintiff could recover for other elements of damage such as increased fear of cancer recurrence and damages for the 13 months she needlessly suffered from the cancer symptoms, such as pain, burning on urination, and hypertension.

Section 455.667 does not preclude ex-parte communications between defendant clinic and a non-defendant physician who was a former employee of the clinic and involved in the care of the patient during the incident in question. Royal v. Harnage, ___ So.2d ___( Fla. 2nd DCA 2002). This case falls in line with previous decisions refusing to prohibit hospitals and nursing homes (and their attorneys) from having ex-parte communications with their present or former employees about the plaintiff. Unfortunately, the opinion contains very broad language, some of which is admitted by the court to be dicta, and some of which is not. If limited to its facts this case is not surprising. Interpreted broadly it may suggest that in any medical malpractice case the defendant and the defendant's attorneys are free to have ex-parte communications with any of the plaintiff's treating doctors, whether they were concurrently treating the plaintiff, or subsequently treating the plaintiff. 

A question of fact was created regarding whether a release given in settlement of a premises liability case also was intended to release subsequent healthcare providers who may have been negligent in treating the injuries. Howard v. Savitsky, M .D., ___ So.2d ___, 27 FLW D606 (Fla.2nd DCA 3-13-02 ). This case emphasizes the importance of expressly reserving your medical malpractice claims when settling an underlying general tort case.

When plaintiff released the first doctor he failed to adequately reserve his rights to pursue a claim against second doctor who was a successive tortfeasor rather than a joint tortfeasor. Caccavella v. Silverman, M .D., ___ So.2d ___, 27 FLW D838 ( Fla. 4th DCA 4-10-02 ). The plaintiff filed suit against two physicians, one for negligently performing surgery, and the second for negligently treating the post-op complications. Plaintiff then settled with the first physician without expressly reserving rights to proceed against the second. The trial court held that since they were successive tortfeasors the first doctor was liable for the negligence of the second doctor under the doctrine of Stuart v. Hertz Corp., 351 So.2d 703 (Fla. 1977). Since plaintiff did not expressly reserve the right to sue the second doctor, the general release the plaintiff gave was sufficient to release the second doctor and instill in the first doctor the right to pursue the second for equitable subrogation. Looking at the facts alleged in the plaintiff's complaint, the 4th DCA concluded that the two doctors were successive tortfeasors rather than joint tortfeasors and therefore the trial court's ruling was affirmed. The district court went on to state that they declined to find that the Tort Reform and Insurance Act of 1986, abrogated the rule of Stuart v. Hertz,  which held that the initial tortfeasor is liable for the negligence of the successive tortfeasor in negligently treating the injuries. The court then certified to the Florida Supreme Court the same questions that it had previously certified in the case of Letzter v. Cephas, 792 So.2d 481 (Fla. 4th DCA):
 "(1) Has the doctrine of Stuart v. Hertz Corp, been abrogated by the Tort Reform and Insurance Act of 1986, Chapter 86-160, Laws of Florida? (2) Does Stuart v. Hertz Corp., apply when the initial cause of action is one in medical malpractice and both the initial and subsequent tortfeasors are sued in the same action?"

When absence of records does not hinder plaintiff in meeting burden of proof it is error to give a Valcin instruction creating a rebuttable presumption of negligence because of the missing records. Anesthesiology Critical Care and Pain Management Consultants, P.A. v. Kretzer, 802 So.2d 346 ( Fla. 4th DCA 2001). Plaintiff brought medical malpractice case against an Anesthesia Group and a Surgery Center . At the trial the court gave a Valcin instruction creating a rebuttable presumption of negligence because of some missing post-operative records. The Anesthesiology Group appealed from a plaintiff's verdict arguing that the Valcin instruction was improper since the only missing records were post-operative records maintained by the other defendant (the Surgery Center), and even if some post-op records were missing, they played no role in prohibiting the plaintiff from proving that the Anesthesiologist was negligent during the actual surgery, which was plaintiff’s theory. The 4th DCA agreed and ordered the entry of a directed verdict for the anesthesia defendant. Plaintiff asked the appellate court to remand for a new trial to give him the opportunity to establish a prima facie case without relying on the Valcin presumption. The appellate court declined, stating that if plaintiff chose to proceed to verdict relying solely on the Valcin instruction, he did so at his own risk.
Under these facts, Florida courts have subject matter and personal jurisdiction over Alabama doctor treating Florida patients in Alabama, but causing injury in Florida. Dean v. Johns, M .D., 789 So.2d 1072, ( Fla. 1st DCA2001). Plaintiff in the Ft. Walton Beach area was referred for her medical condition to a surgeon in Birmingham , Alabama . The Alabama doctor saw the plaintiff in Birmingham and did a medical work-up of her condition there, but failed to do a thoracic M RI which would have revealed that she had a tumor on her spine. The Alabama doctor then recommended that she have surgery for the wrong condition and referred her back to her Florida doctor for treatment. The plaintiff returned to Florida for the surgery, which plaintiff alleged was unnecessary and the surgery seriously damaged her spinal condition. After the surgery the plaintiff brought suit in Florida against the Alabama physician. The issues in the case included whether Florida had sufficient nexus with the case to take jurisdiction over the matter, whether Florida law applied to the cause of action against the Alabama physician, whether the long-arm statute would reach the Alabama physician, and whether the Alabama physician had met sufficient minimal contacts to meet the constitutional due process required to make him come defend himself in Florida. The 1st DCA found in favor of the plaintiff on all of these issues. The Alabama doctor regularly saw patients who were referred to him from Florida and then sent medical reports into Florida . He spoke on the phone with Florida doctors of Florida patients. He also had an active Florida medical license and owned real property in Florida , although he did not ever treat patients within the borders of the state of Florida . The Appellate Court found that the Alabama doctor’s actions were sufficient to obtain personal service over him under multiple alternative theories including “committing a tortuous act within this state” and being engaged in substantial and non-isolated activity within the state whether wholly interstate or not”. The Court stated that even when the actions are performed wholly outside of the Florida , when they are aimed at citizens of the state of Florida and have their impact here that will be sufficient for personal jurisdiction.

Attorney representing one beneficiary in wrongful death action not allowed to share in attorney’s fees of attorney representing estate and other beneficiaries. Wiggins v. Estate of Wright, 786 So.2d 1247 ( Fla. 5th DCA 2001). This was a medical malpractice wrongful death action. Attorney A represented the surviving spouse and the two younger children of decedent and Attorney B represented two other minor children who were older and who were from a previous marriage of the decedent. Attorney A pursued the malpractice claim and obtained a 1 million dollar global settlement. He proposed that after deducting a full contingent attorney’s fees and costs for himself that the balance be distributed approximately 80% to the surviving spouse and his two minor children and 20% to the two children from the previous marriage. Attorney B, representing those other children, objected, and at a hearing the trial judge divided the proceeds 20% to each of the five beneficiaries. Attorney B sought an attorney’s fee for her services and moved to have it deducted from the full contingent fee awarded to Attorney A. The trial court denied Attorney B’s request for attorney’s fees and ruled that Attorney B had to get her fees paid by the individual children that she represented. These children from the earlier marriage appealed the attorney’s fee issue and the 5th DCA affirmed the trial court’s ruling. In an opinion written by Judge Harris the Court found that the wrongful death statute clearly contemplates that the expenses of litigation shall be paid out of the recovery before there is a distribution to anyone and that if there are any services performed for a specific individual beneficiary then they must be paid by that beneficiary. Judge Thompson concurred in the opinion and Judge Sawaya wrote a dissenting opinion that was longer than the majority opinion. Judge Sawaya felt that Attorney B was partially responsible for increasing the amount of the percentage of the recovery that was obtained by her clients and that she should therefore share in the overall fee in some fashion, with the larger portion going to Attorney A.

In wrongful death case it was held that: A) Trial court committed error by not requiring minor children to undergo a compulsory psychological exam since they were real parties in interest; B) It was not error to exclude evidence that the decedent wasn’t paying his child support payments since plaintiffs were not seeking lost child support as an element of damages; and C) it was not error to exclude evidence of remarriage of the mother of the children since she was not a claimant in the case (she had not been legally married to decedent). Florida Emergency Physicians - Kang & Associates, M .D., P.A. v. Parker, 800 So.2d 631 ( Fla. 5th DCA 2001. The decedent had three minor children, two from his current live-in girlfriend and one from a previous relationship. At trial the jury awarded damages of $2,225,000.00 per child for intangible damages. The defendant appealed raising as error the trial court’s refusal to order a compulsory psychological examination pursuant to Rule 1.360; for excluding evidence that the decedent was a “dead-beat dad”; and for excluding evidence that the mother of two of the children had since remarried. The 5th DCA found that the trial court erred by not allowing the defendant to undertake compulsory psychological examinations of the minor children because, even though the personal representative was the named plaintiff, the minor children were the real parties in interest as the beneficiaries. On the “dead-beat dad” issue, the trial court had granted the plaintiff’s motion in limine to prevent evidence that the decedent was not making regular child support payments to the child from the first relationship. The trial court did allow in evidence about the frequency of visits and contacts. The Fifth District affirmed the trial court’s ruling because the children were not bringing claims for economic losses and therefore the evidence of child support payments would have been irrelevant. On the issue of the evidence of remarriage, it was being offered by the defendant to show that the new spouse was assuming the parental role that the decedent had fulfilled. The Appellate Court affirmed the trial court’s exclusion of this evidence on the basis that the new father’s presence in the home could not be used to mitigate the loss sustained by the children, and therefore was not material to prove or disprove the liability or the damages.

Emergency room “reckless disregard” standard of care, contained in 768.13(2)(b), was not applicable to paramedics for care they provided outside of the emergency room. Knox v. Adventist Health Systems/Sunbelt, Inc., __ So.2d __, 27 FLW D1221 ( Fla. 5th DCA 5-24-02 ). Paramedic defendants responded to an emergency call and then dropped the plaintiff while they were carrying her in a chair. In her complaint against the paramedics the plaintiff alleged simple negligence and the trial court dismissed the complaint holding that the "reckless disregard" statute applied to the cause of action. The 5th District reversed, stating that the plain language of the statute indicates that the "reckless disregard" provisions only apply to patients who have entered a hospital from the emergency room or trauma center and even then it only covers causes of action against hospitals, employees of the hospital working in a clinical area within the facility, or health care providers who are licensed to practice medicine. 

Prejudgment interest awardable under section 766.207, because of plaintiff's pre-suit offer to arbitrate which was declined, along with taxable costs, were held to be covered by medical negligence insurance policies of Clarendon National Insurance Company and Surgeons Professional Liability Trust. Graber v. Clarendon National Insurance Company, __ So.2d __, 27 FLW D1158 ( Fla. 4th DCA 5-15-02 ). Following the rule of construction that when the language of an insurance policy raises any question as to the scope of coverage the policy should be construed in favor of coverage, the 4th District found both of these insurance carriers liable for prejudgment interest over and above the $250,000 policy limits for general damages. The Court further found that Clarendon was liable for taxable costs above its policy limits, but ruled that the issue of taxable costs was not properly before it in regard to the Surgeons Professional policy. The opinion points out that under normal circumstances prejudgment interest is considered part of damages and would therefore not be covered above the policy limits covering general damages, however, prejudgment interest pursuant to 766.207 was a “statutorily created incentive” to settle, and was therefore unique from the usual award of prejudgment interest. 

For purposes of the two-year statute of limitations, plaintiff was held not to have constructive knowledge of results of a positive HIV test placed in his medical record, at least when there existed a statute placing an affirmative duty on the health care provider to counsel patients about positive HIV tests. John Doe v. Hillsborough County Hospital Authority, __ So.2d __, 27 FLW D1215b ( Fla. 2nd DCA 5-22-02 ). Plaintiff entered the hospital in 1993 for treatment for a drug overdose. While hospitalized, he received a positive HIV screening test, the results of which were placed in his hospital chart. He alleges he was never informed about the results, and he first discovered the test results in the chart in 1998 after he was diagnosed with advanced AIDS. His suit was based on the negligent delay in diagnosis, which prevented him from taking appropriate drugs to slow the onset of AIDS. He filed his suit after the four-year statute of repose had run measured from the date of the incident, but before the seven year statute of repose had expired, which would apply if there had been fraud, concealment, or misrepresentation. Relying on language from Nardone v. Reynolds, 333 So.2d 25, (Fla. 1976), the trial court ruled that the two-year statute of limitations had expired before suit was filed because plaintiff was on constructive notice of the contents of his medical records back in 1993 as soon as the positive HIV test result was placed in his hospital chart. The 2nd District reversed, noting that F.S. 381.004(3) creates a specific statutory obligation on health care providers to notify a patient of a positive HIV test. The Court stated that, at least where there is such an affirmative duty to inform, the patient would not be deemed to have constructive notice of the test results placed in his records. The case was then remanded with instructions to the trial court to determine whether there had been sufficient fraud, concealment, or misrepresentation to extend the four-year statute of repose to seven years. The Court specifically noted there appears to be a conflict between Hernandez v. Amisub, 714 So.2d 539, (Fla. 3rd DCA 1968), which states that negligent concealment can be enough to extend the statute of repose, and Myklejord v. Morris, 766 So.2d 1160, (Fla. 5th DCA 2000), which held that the word "concealment" requires some intent to conceal or some other active element.