Joseph P. Menello Wicker, Smith, O Hara, McCoy & Ford, P.A. jmenello@wickersmith.com

Transcription

1 Joseph P. Menello Wicker, Smith, O Hara, McCoy & Ford, P.A. jmenello@wickersmith.com

2 Plaintiff brought an action against the hospital, anesthesiologist, and provider of anesthesiologists and nurse anesthetics for medical malpractice. During intubation, one of the tubes perforated Plaintiff's esophagus. Unaware, the anesthesiologist discharged her. Plaintiff was unresponsive the following day, rushed into surgery, and in a drug-induced coma for weeks. Following jury verdict in favor of the patient for over $4.7 million, the Circuit Court entered judgment after reducing noneconomic damages award by close to $3.3 million. Defendants appealed and patient crossappealed.

3 Whether the caps on noneconomic damage awards in personal injury medical malpractice cases are unconstitutional. Holding Yes, caps on noneconomic damage awards in personal injury medical malpractice cases are unconstitutional.

4 In Estate of McCall v. United States, 134 So.3d 894 (Fla.2014), the Florida Supreme Court determined that the caps on noneconomic damages awards in wrongful death cases, imposed by section , Fla. Stat., violated the equal protection clause of the Florida Constitution. Although Defendants attempted to distinguish the caps in wrongful death cases from those in personal injury cases, McCall mandates a finding that the caps in personal injury cases are similarly unconstitutional.

5 Retroactivity The Supreme Court in McCall did not limit its holding to prospective application. Accordingly, this Court applies the dictates of McCall to the instant case. Conclusion Reversed.

6 The plaintiff alleged that she was injured when Dr. Thomas severed her common bile duct during gallbladder removal surgery. The plaintiff alleged that the Hospital was liable for the injuries caused by Dr. Thomas, unnamed nurses, and hospital personnel pursuant to theories of agency and vicarious liability. The plaintiff also alleged that the Hospital was directly liable to her based on negligent hiring and nondelegable duty. Pursuant to article X, section 25, Florida Constitution ( Amendment 7 ), the plaintiff requested that the Hospital produce all documents created within the 5years before her surgery relating to the Hospital's investigation or review of Dr. Thomas's care and treatment of any patient. She also requested all documents pertaining to the Hospital's investigation or review of her care and treatment. In Privilege Log B at 15, 16, and 20, the Hospital challenged reports relating to attorney requested external peer review and asserted that they were privileged. The plaintiff filed a motion for rule to show cause or for an in camera inspection.

7 At the hearing on the motion, the court explained that it had already determined that the documents in the Hospital's privilege log were privileged. But it also found that Amendment 7 preempted the privileges so that any documents relating to adverse medical incidents were discoverable. The court agreed to conduct an in camera inspection to determine if any of the documents in the privilege logs did not fall within the ambit of Amendment 7. Following the inspection, the court required the production of all documents related to the Hospital's peer review of adverse medical incidents involving Dr. Thomas including the external peer review reports listed in Privilege Log B at 15, 16, and 20. The Hospital filed a petition for certiorari challenging the portion of the order requiring production of the external peer review reports.

8 Whether the external peer review reports fall within the ambit of Amendment 7.

9 External peer review reports created for purposes of litigation do not fall within the ambit of Amendment 7 because they were not made or received in the course of business. Because external peer review reports are privileged, it is a departure from essential requirements of law to order their production.

10 Amendment 7 preempts the statutory discovery protections for the peer review process by providing patients a right of 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. Art. X, 25(a). While Florida hospitals are statutorily required to establish internal risk management programs to investigate and respond to adverse incidents, they are not statutorily required to retain external experts to evaluate adverse medical incidents to determine whether the standard of care was met. Here, the external peer review reports were made for purposes of litigation rather than to fulfill a statutory duty. The documents at issue were generated in response to letters sent by the Hospital's counsel to the director of client services at a business called M.D. Review. Records created by an expert retained for purposes of litigation are not kept in the course of regularly conducted business activity. Accordingly, the external peer review reports were not made or received in the course of business under Amendment 7.

11 Additionally, the record does not suggest that the reports were obtained as part of the Hospital s regular peer review process. M.D. Review is not the equivalent of a health care facility peer review; rather, M.D. Review provides an expert opinion on the standard of care on sporadic occasions when litigation is imminent. Because the court held that the reports do not fall within the ambit of Amendment 7, it was unnecessary to address the plaintiff s argument that Amendment 7 preempts the common law attorney-client and work-product privileges. While no appellate court has ruled on the issue of whether Amendment 7 preempts the attorney-client privilege, this court has noted that there has been a suggestion to that effect. Conclusion: Petition granted; order quashed in part (quashed findings 15, 16, and 20 of section E of the circuit court's order).

12 Petitioner sought review of trial court order requiring production of various documents pursuant to Amendment 7. Appellate court had previously quashed trial court order requiring blanket products of documents identified on BRMC s privilege log, ordering the trial court to conduct a further review, setting forth the specific guidelines to assist the trial court. Bartow HMA, LLC v. Kirkland, 126 So.2d 1247 (Fla. 2d DCA 2103). Trial court did in camera review, and everything be produced with the exception of 2 redactions.

13 Whether trial court departed from essential requirements of law by ordering production of documents that do not appear to relate to adverse medical incidents and for which a statutory protection from disclosure may apply.

14 Trial court departed from essential requirements of law by ordering production of documents that are not related to adverse medical incidents Trial court instructed to do another incamera review, list each document and delineate whether each document is subject to discovery under Amendment If a portion of a document is not discoverable and protected by statute, trial court should redact that portion of the document.

15 Not all of the documents ordered to be produced related to adverse medical incidents Neither a document detailing policies and procedures for handling adverse medical incidents generally nor a document containing general credentialing information unrelated to an adverse medical incident would be discoverable under Amendment 7. Examples thank you notes, personal references, performance improvement plans, college transcripts

16 During cardiac bypass surgery, the plaintiff was administered contaminated heparin, which ultimately led to the amputation of his left leg and right foot. Although the heparin supplier issued a recall prior to plaintiff s surgery, the hospital failed to respond to the recall. Patient brought an action against the hospital for negligent administration of a recalled drug during surgery. After the circuit court denied the hospital's motion for dismissal, the hospital argued that despite being characterized as a cause of action for product liability and negligence, the facts alleged in the complaint set forth a medical malpractice claim subject to the presuit requirements.

17 Whether the Florida Medical Malpractice Act's ( FMMA ) presuit notice requirements are applicable where a hospital failed to remove a drug from its inventory that had been recalled.

18 The hospital's failure to remove a drug from its inventory when it knew or should have known it had been recalled more than four months after the manufacturer's recall was ordinary negligence rather than medical malpractice, thus the Florida Medical Malpractice Act's presuit notice requirements did not apply to patient's negligence claim against hospital.

19 The complaint focused on the administrative policies and actions of HRMC in responding to the recall of the contaminated heparin. However, for an action to sound in medical malpractice the wrongful act must be directly related to the improper application of medical services and the use of professional judgment or skill. Cases that do not involve professional medical judgment or skill sound in ordinary negligence. While the failure to administer a blood thinner during the procedure would undoubtedly fall below the acceptable standard of care, the alleged wrongful act was HRMC's administrative failure to properly remove heparin from its inventory. This alleged failure of administrative policy is not unlike the failure of a grocery store to remove a tainted product after having been notified of a recall. Thus, the hospital s allegedly wrongful act is not unique to the hospital setting and does not involve professional medical judgment or skill.

20 The decedent was scheduled to have x-rays for chronic obstructive pulmonary disease. She was transported from her room to the radiology floor. During transport, techs moved the decedent from the transport gurney and lifted her onto the x-ray table. In the course of moving her, the hospital s employees and/or agents accidentally dropped her onto the x-ray table causing her to sustain a fracture of her lumbar spine. The complaint alleges that this ultimately caused the death of the decedent. The hospital moved to dismiss the complaint, alleging that the estate failed to comply with the pre-suit requirements of Chapter 766, Florida Statutes, which covers causes of action in medical negligence cases as the complaint states a cause of action in general negligence and not medical negligence. The trial court disagreed and granted the hospital s motion to dismiss.

21 Whether the Florida Medical Malpractice Act's presuit notice requirements are applicable where the decedent was being transported from her gurney to an x-ray table by hospital employees and/or agents, and she was dropped and injured.

22 Yes, FMMA s presuit notice requirements are applicable where the decedent was being transported from her gurney to an x-ray table by hospital employees and/or agents, and she was dropped and injured.

23 The cases in which the court has found that the claims related to ordinary negligence involved decisions that were not predicated on the negligent employee's job title or responsibilities, i.e. whether they were medical personnel. The instant action arises out of the provision of medical care and is directly related to the improper application of medical services and the use of professional judgment or skill. Accordingly, the trial court correctly dismissed the complaint by applying the pre-suit requirements of Chapter 766.

24 Appellant filed a complaint in which she requested a declaratory judgment and injunctive relief against the appellee on July 1, She alleged that she had contemplated filing a medical malpractice action, but was concerned that the amendments to the medical malpractice presuit notice statutes were violative of both the Florida Constitution and HIPAA.

25 Appellant raised four constitutional challenges and one challenge based on federal preemption, alleging that the statutory amendments: separation of powers doctrine; constitutional limitation on special legislation; free access to courts; decedent s constitutional right to privacy; and preempted by HIPAA.

26 The medical malpractice presuit notice statutes and their 2013 amendments are constitutional and not preempted by HIPAA.

27 Amendments were substantive, therefore, do not impermissibly encroach on Florida Supreme Court s rule making authority (separation of powers) Statute is not a special law, which are prohibited to avoid state action benefiting private interests. It is a general law that applies to an open class of claimants and potential defendants

28 Court rejected claimant s argument under McCall that amendments violated equal protection clause by treating medical malpractice claimants different from other tort litigants The presuit notice requirements is a reasonable condition precedent to a filing suit The requirement to sign an authorization does not abolish or eliminate substantive rights Authorization allowing ex parte interviews does not violate privacy as those rights of privacy are waived by filing a medical malpractice claim

29 Parents brought an action against the University of Miami School of Medicine ( UM ) and the obstetric practice on behalf of their son and themselves for medical malpractice. The parents alleged that their son's brain injury, caused by oxygen depravation during labor and delivery, was the result of negligent medical care. The Division of Administrative Hearings determined that their son's injury was compensable under Birth Related Neurological Injury Act (NICA) for the maximum award of $100,000 but held that the practice's doctors had not given parents the required notice under NICA. The ALJ made no finding whether UM itself had given or was required to give notice of NICA participation under the statute. UM then filed a motion for summary judgment, claiming immunity from suit under NICA, which the circuit court denied. UM petitioned for writ of certiorari. The plaintiffs neither accepted nor declined the award to this date, opting instead to hold in abeyance their decision whether to accept NICA benefits as their exclusive remedy while pursuing their civil suit against UM.

30 Whether UM is entitled to immunity from suit under NICA from plaintiffs' claims for medical malpractice.

31 Giving a patient notice of NICA participation does not entitle a party to immunity; rather, a party's direct involvement in the labor and delivery of a child who suffers a NICA compensable injury entitles that party to invoke NICA's Immunity Provision (2). However, for vicarious liability claims, not premised on the defendant s direct involvement in the labor and delivery giving rise to the injury, NICA's Immunity Provision cannot be invoked.

32 Because only hospitals with participating physicians and participating physicians themselves are required to give notice under NICA s Notice provision, only those two categories of people can waive NICA immunity when they are directly involved in the labor and delivery. Every other person or entity directly involved in the labor and delivery is entitled to immunity that cannot be waived regardless of any notice that is or is not provided. To the extent the plaintiffs have pled direct liability against UM for actions related to Michael's birth, UM is entitled to immunity. The trial court departed from the essential requirements of the law by denying UM immunity from suit for any alleged direct liability. The plaintiffs have also pled that UM is vicariously liable for the medical negligence of its employees. These claims essentially state that the doctors were negligent during their direct involvement in the labor and delivery and that UM, although it has no direct involvement in the labor and delivery, can be held responsible for its doctors' actions due to its legal status as their employer. Because the plaintiffs' vicarious liability claim is not premised on UM's direct involvement in the labor and delivery giving rise to the injury, UM is unable to invoke NICA's Immunity Provision.

33 Ohio trial court order applies the Affordable Care Act to reduce future economic damages. Ruling: After all of the deductions, Alijah s award for future economic damages should be reduced to $2,951,291 from $ 8,000,000 awarded by the jury.

34 Alijah Jones, the plaintiff in this medical negligence case, becomes eligible for Medicare at age twenty due to his father s disability. The Affordable Care Act will fill the gap during any lapse. At most, his premium under the ACA would be $8,000 per year, with $6,500 for maximum out-of-pocket expenses. Mulitplying those expenses by the amount of years he could at most be eligible for Medicaid and/or Medicare, his annual maximum totals $116,000. Medicare covers 80% of customary and ordinary care. Therefore, the expenses allocated to age twenty for all categories in the Life Care Plan (except transportation, home care, and housing) should be set off and the amount remaining should be set off by 80% to account for what Medicare would cover, adding in the cost of care under the ACA for the 8 year period until Alijah becomes eligible for Medicare, and then deducting the previous 3 years allocated to transportation.

35 Patient brought a medical malpractice suit for alleged negligence in placement of an Angio-Seal device in immediately detectable blockage, and failure to detect an occlusion prior to the Plaintiff s discharge from the hospital. The Plaintiff intended to call two doctors as expert witnesses. They were both to testify as to whether the placement or misplacement of the Angio-Seal device caused the blockage. The trial judge limited the presentation of expert testimony to one expert for standard of care and one expert for causation, and, after jury trial, entered judgment in physicians' favor. Patient appealed.

36 Does an exception exist in medical malpractice cases for litigants to present cumulative evidence with only very broad limits?

37 The limitation of expert witnesses is a matter of discretion for the trial court. There is no exception in medical malpractice cases for an almost unfettered right to present cumulative expert witness testimony.

38 The district court, sitting en banc, rejected the Plaintiff s argument that an exception existed in medical malpractice cases for cumulative testimony. Section , Fla. Stat. provides that relevant evidence is inadmissible if its probative value is substantially outweighed by a needless presentation of cumulative evidence, and section requires a trial judge to exercise reasonable control over the presentation of evidence so as to avoid the needless consumption of time. Also, Florida Rule of Civil Procedure 1.200(b)(4) provides that a trial court may limit the number of expert witnesses. The district court noted that none of the rules carve out an exception for medical malpractice cases. The district court also noted that Dr. Markis was able to address the issue regarding the placement of the Angio-Seal on two separate occasions during the trial, even if the plaintiff felt this was disjointed testimony.

39 Petitioner Ms. Worley tripped and fell in YMCA s parking lot. She went to the emergency room at Florida Hospital and, after retaining representation, she began seeing specialists. During discovery, the court ordered Ms. Worley to produce billing agreements between her law firm and her treating physicians and information from cases in which her firm referred other clients to the physicians. Worley petitioned for writ of certiorari.

40 Whether disclosure of a referral of a client by an attorney to a healthcare provider is always protected by attorney-client privilege. Discovery of the existence of a referral relationship between a firm and the treating physicians is discoverable.

41 Here, discovery is relevant to determine whether the expert recommended an unnecessary and costly procedure and whether the expert overcharged for the medical services. In cases where there is evidence of a referral relationship, more extensive financial discovery may be appropriate from both the law firm and the doctor. YMCA, appropriately, exhausted its inquiry into how Ms. Worley was referred to the treating physicians. The petitioner confirmed in deposition that she was not referred to the specialists by Florida Hospital or by another doctor. Conclusion: Denied. Certified conflict with Burt v. Government Employees Insurance Co., 603 So. 2d 125 (Fla. 2d DCA 1992), to the extent that it holds that the disclosure of a referral of a client by an attorney to a healthcare provider is always protected by attorney-client privilege.