medical malpractice lawyers in florida
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Supreme Court holds medical malpractice caps not retroactive

The Florida Supreme Court declined to address the constitutionality of damage caps in injury malpractice cases but did declare that if such caps are constitutional they may not be applied retroactively to an event that occurred prior to the date the malpractice cap statute was enacted by the legislature. The Florida Supreme Court has previously declared that caps on damages in medical malpractice death cases are unconstitutional. Miles v. Weingrad - So.3d ---- 2015 WL 2401261 (Fla. May 21, 2015)....

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Mistake in name of malpractice defendant not basis to throw out suit

Florida’s Second District holds that a suit naming hospital auxiliary instead of the hospital as the defendant was a mere misnomer and that an amended complaint naming the correct defendant related back to the time of filing the original complaint. A plaintiff whose stroke was allegedly misdiagnosed sued two doctors and attempted to sue the hospital involved, as well. Instead of naming the hospital, however, the complaint named the hospital auxiliary, a separate corporation which apparently provided support services to the hospital, but no medical care. The auxiliary’s answer contained a general denial, as well as an affirmative defense stating...

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Malpractice defendant wins but not entitled to attorneys fees

Florida Supreme Court quashes lower appeals court decision in malpractice case and holds that a proposal for settlement was invalid because it was an unapportioned joint offer. A plaintiff filed a medical malpractice suit against a limited partnership and a corporation, both doing business as “Florida Medical Center.” The complaint alleged that both entities “owned, operated, maintained, and controlled” the medical center, that the corporation was a general partner of the limited partnership, and that both entities were liable for negligent hiring and retention as well as vicariously liable for the alleged negligence of two doctors. During the course of...

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Malpractice defendant not allowed to obtain information about expert

Appellate Court in Florida case denies certiorari for the defendant seeking discovery of plaintiff’s presuit expert witness. A medical malpractice defendant moved to dismiss the complaint on the grounds that the plaintiff had failed to comply with Chapter 766 presuit notice requirements. The defendant specifically alleged that the expert doctor whose verified written statement the plaintiff had enclosed with the notice of intent to initiate litigation was unqualified because he lacked “substantial professional experience” under §766.102(9), Florida Statutes. The defendant also alleged that the plaintiff’s expert had failed to complete a review of all the available records before giving his...

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Malpractice defendant not allowed to depose Plaintiff’s expert

Florida Appeals Court finds that defendant in ordinary negligence suit not entitled to depose plaintiff’s former medical malpractice expert witness after medical malpractice claim with co-defendant settled. A patient en route to a hospital was allegedly dropped from his gurney, either by hospital staff or by county fire and rescue employees. After the patient died, the personal representative of his estate sued the hospital for medical malpractice and ordinary negligence and sued the county for ordinary negligence only. The plaintiff had conducted pre-suit screening with the hospital in accordance with Chapter 766 and had accompanied her notice of intent to...

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Object left behind during surgery – special jury instruction denied

Ruling on foreign object Fourth District Appeals Court in Florida affirms trial court’s denial of the jury instruction on “foreign body presumption” of malpractice. A patient and his wife sued the hospital after a piece of post-surgery drainage tube broke off inside him during surgery and was not discovered for several months. Among other things, the plaintiffs alleged that the nurse who removed the tube was negligent because she pulled the tube out too forcefully and too quickly, and also that she negligently failed to inspect the end of the tube after it was removed. At trial, the plaintiffs requested...

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University of Miami Hospital denied NICA immunity

Florida appellate court rules university hospital not required to provide NICA notice in order to assert NICA immunity in medical malpractice action based on its own alleged direct negligence; however, it was not entitled to NICA immunity on vicarious liability counts based on alleged negligence of doctor employees where doctors waived immunity by failing to give proper notice. Parents filed a medical malpractice lawsuit after their child suffered severe neurological injuries at birth. The parents alleged direct negligence by the Public Health Trust of Miami-Dade County, which owned the hospital where the child was born. The parents also sued the...

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Malpractice plaintiff entitled to attorney fees from defendant

Appellate court in Florida affirms trial court order granting attorney fees based on medical malpractice plaintiff’s proposal for settlement. After a patient was paralyzed during a procedure to stent his carotid artery, his mother was appointed as his guardian and filed suit on behalf of the patient and his minor children. Before trial, the plaintiff sent the defendant a proposal for settlement on behalf of patient and the children, specifying a separate amount for each of them. The jury found for the plaintiff and awarded enough to each claimant that the trial court granted plaintiff’s motion for attorney fees based...

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Malpractice presuit notice extends statute of limitations for all

Florida appeals court finds that pre-suit notice of intent, once received by some malpractice defendants, tolls the statute of limitations for all possible medical malpractice defendants. A patient who had been injured during surgery sent a notice of intent to initiate litigation to the surgeon and hospital involved only 30 days before the statute of limitations was to expire. Although she apparently knew the identities of the anesthesiologist and nurse anesthetist involved in her surgery, the plaintiff did not send them a notice of intent until almost 120 days later. After the suit was filed the trial court entered summary...

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