Medical Malpractice Law For the Florida Neurologist Mark G. Morgan, M.D., J.D. MD-JD Consult, P.A. Tampa, FL www.mdjdconsult.com 1-866-455-1559
Scope of the Problem
Legislative findings and intent. F.S. 766.201
(1) The Legislature makes the following findings: (a) Medical malpractice liability insurance premiums have increased dramatically in recent years, resulting in increased medical care costs for most patients and functional unavailability of malpractice insurance for some physicians.
b) The primary cause of increased medical malpractice liability insurance premiums has been the substantial increase in loss payments to claimants caused by tremendous increases in the amounts of paid claims.
(c) The average cost of a medical negligence claim has escalated in the past decade to the point where it has become imperative to control such cost in the interests of the public need for quality medical services
Financial Facts Florida physicians pay the highest average medical malpractice insurance premiums in the country Average jury verdict in Florida medical malpractice cases exceeds $1,000,000 Duke study showed an average of sixty 7-87 8 figure reported, paid malpractice judgments per year in FL from 1990-2003. (Unreported or outstanding judgments were not included)
Medical Malpractice Law 101
The Statutes of Limitation & Repose F.S. 95.11(4)(b)
What s s the Difference? Statue of Repose is 4 years and starts on date of the allegedly negligent incident. Statute of Limitations is 2 years and starts on the date that the incident is discovered, or should have been discovered with the exercise of due diligence.
Exceptions to Statute of Repose 7 years from date of incident if fraud, concealment, or intentional misrepresentation of fact prevented discovery. (NOT misdiagnosis) Myklejord v. Morris (Fla 5 th DCA 2000) Child has until 8 th birthday NOTE: These are NOT exceptions to the SOL
Automatic Extension F.S. 766.104(2) provides for an automatic 90 day extension of the Statute of Limitations for $37.50, payable to Clerk of Court. Can be filed anytime prior to expiration of SOL Trap for the unwary Plaintiff s s attorney: Petition must be made to the Clerk of the County where the suit will be filed
PRESUIT F.S. 766.203 766.206 lay the statutory framework, but many cases have interpreted these statutes so must be read with caution.
The Notice of Intent Arrives by Certified Mail, RRR Tolls the Statute of Limitations as of date sent Starts 90 day presuit period as of date received
Verified Written Medical Opinion Mandatory in every case Must be sent prior to expiration of SOL Must be by physician of same specialty as defendant physician (Same requirement as for trial testimony) Now discoverable under 766.205(4), but no court has ruled on admissibility
Specificity of Allegations NOI and VWMO, taken together, must establish that a reasonable investigation was made to support the claim. Not necessary to detail every aspect of negligence Must contain sufficient description of defendants but not necessarily their names. Michael v. Medical Staffing (Fla. 3 rd DCA 2000)
Presuit Discovery 766.106(6) permits: Unsworn Statements of Plaintiff & Defendants Document Production Written Questions Unsworn Statement of Treating Physicians by Defendant (but Plaintiff s s Attorney can attend) BUT NONE OF THIS IS ADMISSIBLE
WHEN DOES PRESUIT END? On the earliest of: 90 days from receipt of Notice of Intent On receipt of denial of the claim (requires expert) On Settlement Offer (expert not required) On Defendant s s offer to arbitrate under F.S. 766.207 (Requires admission of liability)
The Malpractice Lawsuit
Legal Elements What the Plaintiff must prove to win 1. Duty 2. Breach 3. Causation 4. Damages
Duty
Duty Existence decided as a matter of law Physician Patient relationship is enough Rarely an issue in medical malpractice cases No Duty to victim of Auto Accident allegedly caused by other driver taking Quaaludes prescribed by physician Forlaw v. Fitzer (Fla. 1984)
Duty However there has been found to be a duty to known and identifiable 3 rd parties Duty owed to child born with congenital anomalies for alleged improper genetic screening / counseling of parents Pate v. Threkel (Fla. 1995)
Breach
What is the Standard of Care? F.S. 766.102(1): The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
Fla. Std. Jury Instruction 4.2 Professional Negligence Negligence is the failure to use reasonable care. Reasonable care on the part of a physician is that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably careful physicians.
What is a similar physician? If Defendant is board certified in a specialty or is providing evaluation, treatment, or diagnosis for a condition that is not within his or her specialty,, a similar physician is a physician in that same specialty (F.S.( 766.102(8).
Expert Testimony
Who can testify against a Neurologist? F.S. 766.102(5) No reference to board certification BUT must be ALL of the following: Licensed Health Care Provider Practicing in Neurology or a similar specialty that involves the evaluation, diagnosis or treatment of the medical condition in question
AND have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to: a. The active clinical practice of, or consulting with respect to, the same or similar specialty and have prior experience treating similar patients; or b. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same or similar specialty; or c. A clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same or similar specialty.
What can the Expert say? Fullerton v. FMA (Fla. 1 st DCA 2006): After a judgment exonerating them from liability, defendants forwarded a letter to the FMA complaining of Dr. Fullerton's testimony, stating, among other things, that his opinion testimony fell below reasonable professional standards, that it was made for the sole purpose of propagating a frivolous lawsuit for financial gain, and that he specifically presented false testimony and false theories about stroke in the hope to prove negligent medical care in an 80-year year-old diabetic with previous strokes who suffered a stroke despite appropriate care.
1 st DCA s s Response The common law has long recognized that an absolute civil privilege extends to a witness's testimony in connection with or in the course of an existing judicial proceeding. See Ange v. State, 98 Fla. 538, 123 So. 916, 917 (Fla.1929); Stucchio v. Tincher, 726 So.2d 372, 375 (Fla. 5th DCA 1999).. As noted in Fariello v. Gavin, 873 So.2d 1243, 1245 (Fla. 5th DCA 2004): By virtue of this immunity, defamatory statements made in the course of judicial proceedings by parties, witnesses and counsel are absolutely privileged, no matter how false or malicious those statements might be, provided the statements are relevant to the subject of the inquiry. The consequence of the rule is that [t]orts such as perjury, libel, slander, and other actions based on statements made in connection with a judicial proceeding are not actionable.
Fla. Std. Jury Instruction 2.2(b) Expert witnesses: You have heard opinion testimony on certain technical subjects from persons referred to as expert witnesses. You may accept such opinion testimony, reject it, or give it the weight you think it deserves,, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case.
Causation
Proximate Legal Cause The proximate causation element is concerned with whether and to what extent the defendant's conduct foreseeably and substantially caused the specific injury that actually occurred. McCain v. Florida Power Corp., (Fla. 1992)
Fla. Std. Jury Instruction 5.1(a) Legal cause generally: Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage, so that it can reasonably be said that, but for the negligence, the loss, injury or damage would not have occurred.
Gooding v. University Hospital In Gooding,, the Florida Supreme Court acknowledged that Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff's injuries. Gooding,, 445 So. 2d at 1018. In other words, the plaintiff must show that there is a 51% or more likelihood that the defendant's negligence caused the plaintiff's injuries. Gooding,, 445 So. 2d at 1020.
Damages
Economic Types of Damages Wage Loss (Past & Future) Medical Expenses (Past & Future) Loss of Support & Services Non-Economic Pain & Suffering Loss of Consortium / Companionship Mental anguish, loss of ability for enjoyment of life Punitive
Statutory Caps on Damages F.S. 766.118 Caps apply only to Non-Economic Damages For a Neurologist, usual cap is $500,000 Automatic breakthrough to $1,000,0000 for death or permanent vegetative state Breakthrough to $1,000,000 if court finds catastrophic injury Especially relevant to Neurologists
766.118(1)(a) "Catastrophic injury" means a permanent impairment constituted by: 1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk; 2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage; 3. Severe brain or closed-head injury as evidenced by: a. Severe sensory or motor disturbances; b. Severe communication disturbances; c. Severe complex integrated disturbances of cerebral function; d. Severe episodic neurological disorders; or e. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in subsubparagraphs a.-d.
Common Malpractice Claims Neurology Failure to diagnose / treat impending stroke TIA Migraine misdiagnosis Failure to use TPA Window issues Gooding Defense Endarterectomy Carotid Dissection Status Epilepticus
Constitutional Amendments
Amendment 3 The Medical Liability Claimant s s Compensation Amendment Intended to limit malpractice plaintiff s attorney s s fee to 30% of the 1 st $250,000 and 10% of any additional recovery Florida Supreme Court has approved waiver procedure now routinely utilized by plaintiff s attorneys Bottom Line: Absolutely useless
Amendment 7 Patients Right to know about adverse medical incidents Mandates disclosure upon request of any adverse medical incident Adverse Medical Incident VERY broadly defined anything that could have caused injury Supersedes peer review and all prior privileges Virtually anyone can make the request Any individual who has sought, is seeking, is undergoing or has undergone care or treatment
3 DCA s s Have Upheld Amendment 7 as Written All 3 DCA s s held implementing legislation invalid Florida Hospital v. Waterman (Fla. 5 th DCA 2006) Not Retroactive FL S. Ct. granted review - Oral Argument 6/7/07 Decision still pending as of 8/17/07 Notami v. Bowen (Fla. 1 st DCA 2006) Retroactive North Broward v. Kroll (Fla. 4 th DCA 2006) Retroactive
FL Hospital Waterman v. Buster (Fla. 5 th DCA 2006) the Hospital continues to view this issue through the prism of privilege and confidentiality. The Hospital contends that preservation of the legislatively-established established privileges that enhance self-policing by health care providers for the betterment of the patients they serve is a firmly- established policy that is of paramount importance and the people of Florida could not have meant to abrogate such a policy, especially one so carefully guarded by the courts.
Interpreting the text of Amendment 7 differently and more broadly, we disagree. Further, what the Legislature gives through its enactments and the courts protect through their decisions, the people, through the constitutional amendment process, can certainly take away. We believe that is what the people of Florida intended when they inserted Amendment 7 into our constitution. Through this amendment, the people have clearly expressed their preference for freedom of information regarding adverse medical incidents over the privileges that protect the selfpolicing processes enacted by the Legislature and protected by the courts. The people have made their choice, and it is not for us to question the wisdom of it.
Privileges Lost FN6. The privileges referred to are the numerous laws that prohibit discovery of various components of a hospital's self-evaluation evaluation process, which the Legislature believes are essential to meaningful self-regulation by health care providers in general. See, e.g., 766.101(5), Fla. Stat. (2005) (medical review committee privilege); 766.1016(2), Fla. Stat. (2005) (patient safety data); 459.016(3), Fla. Stat. (2005) (reports of disciplinary actions); 400.118, Fla. Stat. (2005) (quality assurance nursing homes); 395.0191(8), Fla. Stat. (2005) (staff membership and clinical privileges); 395.197(4), (6)(c), (7), (13), Fla. Stat. (2005) (internal risk management); 395.0193(8), Fla. Stat. (2005) (peer review).
Amendment 8 Public Protection from Repeated Medical Malpractice (The 33 Strikes Amendment ) Mandates loss of Florida medical license if physician found to have committed 3 or more incidents of medical malpractice Retroactive Incidents in other states or countries count No Florida Courts have ruled on Amendment 8 but logic of Amendment 7 cases foreboding
What Counts as a Strike Final Judgment of a Court of Law Final Administrative Agency Decision Decision of Binding Arbitration SETTLEMENTS ARE NOT STRIKES (Guess Why)
Who Makes the Decisions in a Malpractice Lawsuit?
F.S. 627.4147 Medical malpractice insurance contracts. (1) In addition to any other requirements imposed by law, each self-insurance policy as authorized under s. 627.357 or s. 624.462 or insurance policy providing coverage for claims arising out of the rendering of, or the failure to render, medical care or services, including those of the Florida Medical Malpractice Joint Underwriting Association, shall include: (a) A clause requiring the insured to cooperate fully in the review process prescribed under s. 766.106 if a notice of intent to file a claim for medical malpractice is made against the insured. (b)1. Except as provided in subparagraph 2., a clause authorizing the insurer or selfinsurer to determine, to make, and to conclude, without the permission of the insured, any offer of admission of liability and for arbitration pursuant to s. 766.106, settlement offer, or offer of judgment. It is against public policy for any insurance or self-insurance policy to contain a clause giving the insured the exclusive right to veto any offer for admission of liability and for arbitration made pursuant to s. 766.106, settlement offer, or offer of judgment, when such offer is within the policy limits. However, any offer of admission of liability, settlement offer, or offer of judgment made by an insurer or self-insurer shall be made in good faith and in the best interests of the insured.
The Malpractice Insurance Gap Most Florida physicians only carry $250/750 policies, the minimum required for physicians with staff privileges by FL s s Financial Responsibility Statute. ( 458.320)(
Who Fills the Gap?
Excess Judgments Are Not Paid by Malpractice Insurance If your malpractice carrier takes the case to trial and an excess judgment results, the carrier is not obligated to pay the excess YOU are. Only exception is if insurance carrier acted in Bad Faith by failing to settle your case within policy limits when it could and should have done so Bad Faith requires an entirely separate lawsuit in which you carry the burden of proof Your malpractice carrier s s duty to defend may end when it pays the policy limits even if you are not released from the lawsuit CHECK YOUR POLICY
Legislative Protection for the Malpractice Insurance Carrier F.S. 766.1185 Bad faith actions. In all actions for bad faith against a medical malpractice insurer relating to professional liability insurance coverage for medical negligence, and in determining whether the insurer could and should have settled the claim within the policy limits had it acted fairly and honestly towards its insured with due regard for her or his interest, whether under statute or common law:
766.1185(1)(a): An insurer shall not be held in bad faith for failure to pay its policy limits if it tenders its policy limits and meets other reasonable conditions of settlement by the earlier of either:
1. The 210th day after service of the complaint in the medical negligence action upon the insured. or
2. The 60th day after the conclusion of all of the following: a. Deposition of all claimants named in the complaint or amended complaint. b. Deposition of all defendants named in the complaint or amended complaint, including, in the case of a corporate defendant, deposition of a designated representative. c. Deposition of all of the claimants' expert witnesses. d. The initial disclosure of witnesses and production of documents. e. Mediation as provided in s. 766.108.
Physician Protect Thyself
Medical Malpractice Triage Program Mark G. Morgan, MD JD MD-JD Consult, PA Tampa, FL www.mdjdconsult.com 1-866-455-1559