Blog Archive

Ex Parte Communications With a Med Mal Plaintiff’s Treating Physicians: Not Happening in Florida

The Florida Supreme Court handed down Hasan v. Garvar this week and further solidified the integrity of doctor-patient confidentiality for medical malpractice plaintiffs  The case involved a claim of dental malpractice, but its holding applies to treating physicians in all types of medical malpractice cases as it interprets Florida Statutes section 456.057(8).  In sum, the Court ruled that no ex parte communications may occur with a treating physician in a medical malpractice action, even if the parties to the ex parte conversation assert that they will discuss only non-privileged information.

How to Handle Medicaid Liens: When Florida Medicaid Seeks too Much

                After Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268 (2006), the United States Supreme Court decision allowing for an equitable distribution argument to reduce a Medicaid lien, the law in Florida remains murky.  A new decision from the 4th DCA, Roberts v. Albertson's, et al., 37 FLW D2515 (Fla. 4th DCA 2012), has certified the question to the Florida Supreme Court and provides a good road map for the plaintiff's lawyer seeking an equitable resolution of a Medicaid lien.

Texting While Driving: Time to Take Action in Florida

          Florida state senator Nancy Detert (R - Venice, FL) filed a bill (SB 52) last week in the Florida Senate that would empower police officers to cite people for texting while driving.  Currently, Forty-Five (45) of the fifty United States have some form of ban on texting while driving.  The National Transportation Safety Board (NTSB) has been urging all states to ban this practice and to empower police to do something about it.  Almost 4,000 highway deaths per year are attributed to distraced drivers.  As anyone who has tried to text and drive knows, this practice is even more dangerous than driving under the influence.  Florida, Montana, South Dakota, South Carolina, and Arizona are the only states in the country that have failed to enact laws prohibiting the practice. 

A Med Mal Conundrum: When the Subsequent Treating Doctor Gets in the Way

Unseen land mines are everywhere in medical malpractice cases, especially here in Florida.  A recurring issue is the question of "causation" when the facts of a given case require proof that a subsequent treating physician would have acted differently but for the negligence of the defendant(s).  For example, a misread radiology film results in a missed diagnosis.  Had the defendant read the film properly and had the defendant communicated the diagnosis to the surgeon, the surgeon surely would have operated, correct?  Maybe not.  And what happens if the surgeon testifies that he would not have done anything differently?

What is the law in Florida?  It depends...

Preparing a Med Mal Case in Florida: Beware of Your Verified Medical Opinion

                Among the twists and turns provided in Chapter 766 for the presuit initiation and investigation of medical malpractice litigation in Florida, section 766.203(2) requires a verified medical opinion to provide "corroboration of reasonable grounds to initiate medical negligence litigation" against the prospective defendant.  Although this statute restricts access to courts, a recent opinion from the 2nd DCA reveals that Florida courts can require strict compliance with this statute, and will narrowly construe its terms.  How do you make sure that your client's rights are protected?

Why Lawsuits Matter: The Case of the New England Compounding Center

The other day, I sat on an airplane next to a surgeon.  We were heading to Boston.  He is a surgical chief at one of the Harvard hospitals.  He was on his cell phone, bemoaning the fact that many of his patients were exposed to drugs formulated by New England Compounding, the company that mass-produced pain medications infected with a deadly strain of meningitis.  The injectable drugs, known as methylprednisolone acetate, have now killed at least 29 people, and caused disease in 377 more.  Over 14,000 patients have been exposed.  Many in pubic health are calling this one of the worst public health disasters since the 1930s.  They have referred to the facility as one that lacked “basic clean room principles.”

New England Compounding supplied many of America’s most influential and busiest hospitals, including systems at Harvard, Yale, and the Mayo Clinic.

America’s largest and best health care institutions trusted New England Compounding to provide safe and effective medications for their patients.  As Dr. Gerard Martin, of Children’s National Medical Center told the New York Times last week, the hospitals trusted New England Compounding because they trusted the FDA as well as state regulators to insure safety.  “You believe that when a company is being regulated they’re following good practices, “ Dr. Martin told The New York Times.

Say No to Expert Witness "Certification:" Just Another Cynical Effort to Stifle Victims of Medical Malpractice

          Florida Statutes sections 766.102 (12)  and 458.3175 seek to create super requirements for experts in medical malpractice cases.   The statutory scheme is a controversial, and highly politicized statute that seeks to convert medical expert testimony into the "practice of medicine" in Florida.  The ostensible purpose of this statutory labeling is to give the Florida Board of Medicine the power to discipline doctors for what they say under oath in a Florida medical malpractice case.  The real purpose, in my experience, is to stifle those experts courageous enough to step forward and testify about medical malpractice.  The statute further requires out of state experts to register with the state to subject themselves to discipline in the event the Board of Medicine chooses to take action against them for their testimony.  

Miami Herald Endorses YES Vote to Retain the Justices

The Miami Herald's published its YES recommendation for the Supreme Court justices.  Please spread the word.  The endorsement can be found here:

Gov. Scott's and the Florida Legislature's Remedy for Medicaid Patients: "Let Them Eat Cake!"

                "Let them eat cake!"  These are the notorious words attributed to Marie Antoinette, the Queen of France and scion of elitist French society at the dawn of the French revolution.  The words are associated with the aristocracy's utter disdain for the underclass, working class poor in 18th century France.  Then came the French Revolution, on the heels of the American Revolution.  A new age was born where the interests of the working class would gain equal foothold with those of the power elite.  It was a new age, the age of modern democracy.

                Fast forward over two hundred years to modern day Florida.  Governor Rick Scott, worth hundreds of millions of dollars after years as a health care executive, and the Florida legislature, heavily influenced by big money donors, are now in power in Florida.  The interests of the power elite -- large private hospitals, industry, big tobacco, and big business -- rule the day.  A modern day aristocracy has taken hold in Tallahassee.  And they are passing laws that take direct aim at Florida's poor and underprivileged.  For example, take a look at Florida Statutes section 766.118(6).

Justice For Sale: How Governor Scott and Big Business Plan to Buy Florida’s Courts With Big Money and Big Lies

          For almost 40 years, Florida’s Supreme Court has been a model of judicial independence.  Judges are appointed, not elected, to the Florida Supreme Court.  The process includes significant input from the Florida Bar Association, made of lawyers from all places and sides of the legal arena. The Governor has significant input in the process and he gets to appoint whom he wants, so politics plays a role in the appointment process.  But once appointed, the Justices do not face political elections and opposing party candidates.  The Justices serve the law, not political parties or political interests.  They are only subject to “merit retention” every 6 years, meaning the ballot question is s “yes” or “no” on whether to retain them.  They do not run against anyone.  In the 40 years since we have had this system, no Supreme Court justice has lost a seat. 

The result of our system is that Supreme Court justices have been free to serve our state by focusing on the law, not politics.  They delve into the intricacies of the law, seeking to render decisions that are true to their honest and conscientious understanding of the legal principles available, as opposed to serving someone else’s political agenda.

Until now.

Avoiding Med Mal Land Mines: Protecting Your Client's Right to Keep Medical Communications Confidential

                By statute passed in last year's legislative session, plaintiffs in medical malpractice cases are required to provide the defendants an authorization form allowing the defendant to obtain "health information" relating to the plaintiff.  With a signed form, the defendant can obtain medical records in order to evaluate the issues in the case.  The statute requires a specific form, crafted by the legislature, for the plaintiff to use.  The form has broad language, stating that the "health information" plaintiff authorizes "extends to, and includes, the verbal as well as the written."  This language might lead a defendant or his attorney to engage in ex parte conversations with the plaintiff's treating physicians.  This language, interpreted in that manner, violates the patient confidentiality provisions of Florida Statutes section 456.057(7)(a) prohibiting such ex parte communications.  So how do you protect your client's rights in this scenario?

Florida Jury Selection: When Discovering a Juror's Litigation History, How Much Diligence is Due?

                 In Tricam Industries, Inc. v. Coba, the Third District Court of Appeal  recently addressed the nagging question of attorney "due diligence" with respect to juror background checks.  Ever since the Florida Supreme Court's opinion in Roberts v. Tejada, 814 So. 2d 334, 339 (Fla. 2002), when a party receives a less than favorable jury verdict, that party might engage in post verdict research of the jury panel only to determine that at least one of the jurors had an undisclosed litigation history.  This post verdict research then leads to a motion to interview jurors and a motion for new trial.  Whether the lawyer and his client have a legitimate gripe will turn on whether they failed to exercise due diligence.

Mississippi Meltdown: How the Mississippi Supreme Court Cowered From Justice

                In an earlier entry in these pages, I wrote about the Sears Roebuck v. Learmonth case.  There, the 5th Circuit Court of Appeals, a federal appellate court, asked the Mississippi Supreme Court to answer the question of whether Mississippi's $1 million cap on noneconomic damages violated the Mississippi constitution.  In the case the jury rendered a verdict in the amount of $4 million, well in excess of the cap.  The jury was not asked to break down its number into economic and noneconomic categories.  The parties stipulated that, based on the evidence presented on economic losses, the non-economic award was over $2 million, again well in excess of the cap.  With that, the issue was ripe for the Mississippi Supreme Court's consideration.  But it wasnt to be.

When it's the Doctor's Fault: Just Say No to No-Fault Malpractice Laws

Currently, voices from the Florida Medical Association (FMA) are advocating a "Patient Compensation System."  This is the latest effort by the FMA to deprive Floridians of their civil justice rights.  In the past, the FMA has lobbied for and obtained countless legislative restrictions on the right to make and pursue medical malpractice claims.  Over the years, the FMA has also sought and obtained caps on damages that limit the amount an injured patient can recover from a negligent health care provider or its insurer, and it has sought to limit the attorney's fees patient's lawyers can receive while putting no limit on the amount a health care provider's lawyer can earn.  The FMA has a long history of looking out only for its members' own pocketbooks.  I cannot remember a single time when the FMA has lobbied or advocated for expanding patients’ legal rights.  This is no different. 

Order of the Court: Striking Down Bad Law, Missouri Supreme Court Does its Job and Declares Med Mal Caps Unconstitutional

 "In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." [Emphasis supplied.]  James Madison

 

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."  Thomas Jefferson

 

At the end of July, the Missouri Supreme Court did what a supreme court should.  It courageously approached a constitutional question and decided a case based on what is right and fair, not what is most accepted by the most powerful.  The unconstitutional law capped non-economic damages in medical malpractice cases, insulating health care providers from personal and professional responsibility when their negligent acts cause harm to their patients.  The case before the court involved a brain injured baby, who suffered a catastrophic deprivation of oxygen to his brain that was largely ignored by the obstetrical team who provided care to him and his mother.  The child, the most vulnerable of all litigants, received a $5 million jury verdict.  But the jury's decision was replaced by the legislature's limit of $350,000.  The child's family appealed, asking for the jury's verdict to be reinstated.  The Missouri Supreme Court concluded that damage awards are the job of the jury, and the legislature's attempt to take that job away amounted to a deprivation of the child's constitutional right to a jury trial.  The Court reinstated the jury verdict.

Florida Jury Selection: Preserving Error on Challenges for Cause

So you are in the midst of jury selection and a juror makes clear his or her inability to be fair to your client in your case. You jot down the statements wherein the juror announces this fact. Later, the Court asks for cause challenges. You read your notes to the Court, but the judge looks at you like you are from another planet. That is not what the juror said, and even if it is, says the trial judge, it is insufficient to strike the juror for cause. Motion denied. Your blood boils as you try to understand what is happening. You know that this juror cannot sit on this case.

Medical Malpractice Legislative Update with a National and Florida Perspective: Proposed Laws to Immunize Doctors Continues

2012 National and Florida Medical Malpractice Legislation Commentary

The most recent Florida legislative session concluded just over a month ago.  Once again, both the House and Senate of the Florida legislature considered bills to further protect doctors and healthcare providers.  Year after year, the legislators in Tallahassee draft bills designed to immunize what is likely the most protected group of citizens in this state.  Yet, they do nothing to benefit the other side, the victims and families of those injured by medical negligence.

7 Essential Steps To Successful Trial Advocacy

7 Essential Steps To Successful Trial Advocacy


Most trial lawyers want to be the best we can be. The goal takes a lifetime of dedication to the craft. Here are my thoughts on how to be your best:

  1. Preparation. The first essential step for every aspect of oral advocacy is preparation. No successful advocate can make his or her case without it. But preparation does not mean closing yourself off to all common sense in the world around you.

Crafting a Good Release: University of Miami v. Francois and the Perils of Language

Settling a case is usually a good thing.  A compromise, to be sure, but a good settlement resolves a dispute and, if your represent the plaintiff like we do at our firm, settlements put money in your client's pocket and, in turn, in yours.  But the work doesn't end once you agree to terms.  Crafting a good release is a challenge and requires the plaintiff attorney's close attention.  Be careful to limit the release to only the party with whom you are settling.  Too often, release language is overbroad and purports to release the settling party not only for past cond

HOT FUEL: A HIDDEN RIP OFF OF AMERICAN CONSUMERS, BUT ALSO A SAFETY RISK

Each year, as the temperatures rise around the country, a phenomenon known as "Hot Fuel" emerges in the United States.  Gasoline products are sold to retailers at what is known as the 60 degree "net fuel" volume.  Pricing is based on gallons of gasoline at the industry standard temperature of 60 degrees Fahrenheit.  Gasoline volume expands at temperatures in excess of 60 degrees.  So, each summer, retailers receive a gross or actual volume of gasoline significantly greater than they pay for.  At the pump, retailers have a built in profit each summe

U.S. Supreme Court Victory for Tobacco Plaintiffs

The United States Supreme Court issued a victory for Florida's Engle tobacco plaintiffs on Monday, March 26, 2012 when it declined certiorari review of three appeals brought by the RJReynolds Tobacco giant.  Reynolds, like the other major tobacco companies, claims that its due process rights are violated by the Engle class action findings.  Reynolds' gripe centers on the class action jury's findings that cigarettes are a defective product, that the tobacco companies were

Smith v. RJ Reynolds. $27 Million Victory, But a Bigger Lesson Still: What it Takes to be a Trial Lawyer

Congratulations to Rick Diaz, J.B. Harris, and Robert Trammell -- trial counsel for Emmon Smith -- in their victory against RJ Reynolds Tobacco Company.  They successfully "slayed the dragon," obtaining a verdict of $30 million, with a judgment amount of $27 million, in favor of Mr. Smith.  This was an Engle class action case on behalf of Mr. Smith, a lifelong smoker diagnosed with lung cancer in 1992.  Mr.

Time to take a Stand: Democracy at Stake

The current battle to remove Justices Pariente, Quince, and Lewis is a perversion of democracy and a threat to our liberty.  It is a knee jerk, and childish, reaction to a judicial decision.  These are excellent jurists who should not face removal simply because a group of disgruntled citizens dislike President Obama or his health care policy.  If we fail to protect these justices from this attack, our judicial branch, and its ability to faithfully assure justice, will be fatally wounded.

Louisiana Letdown: Louisiana Supreme Court Upholds Damage Caps

The Louisiana Supreme Court, in the case of Oliver v.

Florida Man Receives $1.35 Mil From the State of FL for Wrongful 30 Year Prison Term: Nice Try FL, But it's Just not Enough

Congratulations to William Dillon, the Florida man who was recently awarded $1.35 million by the Florida legislature in a claims bill designed to compensate him.  It turns out William Dillon spent almost 30 years, that's three decades, in a Florida prison for a crime he did not commit.  The State of Florida wasted the best years of Mr. Dillon's life.  And for that, Mr. Dillon will receive $1.35 million (actually less than that because he will have to pay his team of lawyers their hard earned, and much deserved fees).  I congratulate Mr.

Hypoxic Ischemic Encephalopathy ("HIE"): Medical Prevention and Legal Remedies

Hypoxic Ischemic Encephalopathy, or "HIE," is a diagnosis of brain injury relating to traumatic labor and delivery.  "Hypoxic" means oxygen deprivation.  "Ischemic" means lack of blood flow to the tissues of the body.  And "Encephalopathy" means disease or injury to the brain.   Taken together, the diagnosis means that the brain tissue suffered injury due to lack of blood flow and lack of oxygen.  This type of injury, often catastrophic, occurs when a baby receives inadequate blood flow, or inadequately oxygenated blood, or both, during labor and delivery.

News Flash: Doctors are Above the Law

To the Florida legislature, doctors are, and should be, above the law.  They have their own set of statutes.  They are the most protected and insulated group of citizens in our state.  They can practice medicine without liability insurance; they are entitled to special immunities, damage caps, pre suit protections, shortened statutes of limitations, expert witness certifications, expert witness disciplinary actions, and expert witness requirements.

Oral Argument: Florida’s Medical Malpractice Damage Caps

On Thursday, February 9, 2012, Florida’s Supreme Court heard oral argument in McCall v. United States of America.  I have written about this matter several times in these blog pages.  The case was a wrongful death action arising from the medical malpractice death of a 20 year old woman who had just given birth to her first child.  It occurred at a military hospital and was brought in Federal Court under the Federal Tort Claims Act.  A federal judge awarded Ms.

Hot Coffee Update: Democracy's Big Florida Test as Supreme Court Hears Med Mal Caps Challenge on February 9, 2012

Something is wrong in America.  What's wrong is uncontrolled corporate greed.  Enough is enough.  They had their way in the Bush years. And they did their damage.  It is now time to reset democracy.  This is the first in a series of updates on the status of our legal rights around the country.  First stop: my home state of Florida.