Category Archives: Medical Malpractice

Warning For Users Of The Phillips Mobile Cardiac Outpatient Telemetry.

Sometimes legal theories collide, and more than one theory applies to a set of facts.  This is true when a product combines with medical care to cause death or catastrophic injury. When this happens, there are both considerations for a medical malpractice theory and a product liability theory of recovery.  

Product Liability and Defects

Our firm has experience dealing with complex factual situations that may involve a combination of legal theories. Recently, we were hired by a family whose loved one died after being prescribed a mobile heart monitoring device known as Philips Mobile Cardiac Outpatient Telemetry.   

What Functions Do Mobile Telemetry Monitoring Devices Serve?

For many years, cardiac rhythm monitoring has been used by physicians, most notably cardiologists, to diagnose and treat patients. Traditionally, these were devices fitted to a patient and worn for anywhere between 24 hours and up to 30 days. During that time, the patient would keep a diary of any symptoms they experienced (date, time, description of activity, symptom). At the end of the prescribed duration of monitoring, the patient would submit the diary as a complement to the data that was collected by the device. A physician would then analyze the data side-by-side with the patient’s diary. In this instance, a final assessment would be made after the fact.

Interface Between The Telemetry Leads and Data Sent To The Central Hub

As mobile phone data and Bluetooth transmission capabilities became more commonplace—basic mobile phone plans nearly all carry such a feature—interactivity with many elements of daily life became commonplace. Home security systems, home appliances, electronics, and audiovisual systems, medication administration and monitoring, etc. This has expanded to medical devices such as mobile telemetry monitoring, but with a twist: a patient’s phone serves as the interface between the telemetry leads on the body and then sends that data to a central monitoring hub in real-time.

The Communication Path

The real-time telemetry monitoring is akin to what many understand occurs in a hospital setting in that an admitted patient has wires and stickers adhered to their chest wall, and in the event of an arrhythmia, cardiac pause, or asystole (absence of electrical activity), a technician in the hospital would recognize this and, following facility protocol, activate the emergency response team to assess and tend to the patient. And, like the patient in the diary above, a patient admitted to a hospital may just communicate their symptoms to a member of the care team, at which point a call would be made to the technician to query what the telemetry monitoring revealed at a given time. The obvious difference between the hospital setting and the mobile platform is that a patient with a mobile phone coupled with a cardiac monitoring device is not in a facility. However, the concept remains the same: abnormal heart rhythm is captured and transmitted, a technician recognizes such an abnormal rhythm, the technician communicates that to the prescribing provider, and the prescribing provider then contacts the patient or advises on the next best step.

Phillips Mobile Cardiac Outpatient Telemetry

 

 

 

What If You Have a Dysfunction?

The system works well if all the components are functional. If there is a dysfunctional link anywhere, then the system fails.

Types Of Failure:
1. One such component would be if the patient was out of mobile phone range (not near a mobile tower, no signal to their phone), then their cardiac data would be collected but not transmitted to the monitoring hub.

2. Another such dysfunctional link would be if a technician recognized an arrhythmia but did not follow through on notifying the prescribing physician.

Continue on with that same logic, and it makes sense that any missing component could be detrimental to the purpose of the study (which is why the physician prescribed this in the first place).

Real Time Component

One of the benefits of the newer mobile-based platforms is the real-time component. Physicians and other care providers are best able to intervene in the event of a concerning rhythm disturbance or malignant dysrhythmia.

Necessary Intervention

In a nutshell, the product is designed to function by monitoring the heart rate and rhythm of the patient, and it is programmed to notify the device company representative, who is supposed to then immediately notify the treating physician’s office so that they can intervene if need product Defect Leads to Death

It appears from the information that we have that either the device manufacturer failed to notify the physician’s office or the physician’s office failed to communicate with the patient.  Then we discovered that another patient died from a similar circumstance using a device manufactured by Philips Mobile Cardiac Outpatient Telemetry.  This means that at least two people in the Pensacola area have died while wearing this device that should have prevented them from doing so.

WATCH OUR YOUTUBE VIDEO ON THIS TOPIC, PRESENTED BY JOE ZARZAUR AND DR. EVAN MALONE >

 

If you or a loved one was wearing any cardiac monitoring device manufactured by Philips Mobile Cardiac Outpatient Telemetry and suffered a catastrophic injury or death related to their cardiac condition, you or your family should consider discussing the same with our firm.  You can find us at zarzaurlaw.com or call us at 855HireJoe.

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If you’ve been injured due the carelessness of another, it’s important that you don’t make any rash decisions. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board-Certified Trial Lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe, or by requesting a free case review through our website.

Midwifery Care And Risk Factors

When planning for the birth of a new baby, there are many options and decisions that soon-to-be new moms need to make. One of the most important decisions is choosing a healthcare provider during your pregnancy. One type of provider is a midwife.

Midwives are healthcare providers who deal with pregnancy, childbirth, newborn care, and postpartum health. Some midwives provide routine reproductive care like pelvic exams, Pap tests, or counseling on birth control. Midwives tend to be more holistic and supportive of natural approaches to pregnancy and birth. Midwives are normally used by those who choose to have a planned home birth. 

Are There Risks Associated With Using A Midwife?

While midwives provide the majority of care in countries like the U.K. and the Netherlands, midwife-led home births account for only about 10% of births in the United States.  (https://www.forbes.com/health/family/what-is-a-midwife/)

While in recent years, more families have sought out a more holistic, non-hospital location for giving birth and for the care provider, such as a home birth using a midwife, the complications of giving birth outside of a hospital have their own risk factors and cause concern.

Midwives consult with OBGYNs, maternal-fetal medicine specialists, and other healthcare providers to mitigate risk in your care. Working with a midwife who attends births in a hospital setting is usually recommended if you are worried about delivery. This can give you the safety net you’re looking for if a complication arises.

CASE STUDY: Recent Midwifery Medical Malpractice Case At Zarzaur Law

In a recent medical malpractice case, the firm handled an expecting mother who enrolled the services of midwives for an out-of-hospital birth.  The risks of this pregnancy and labor included:

  • Advanced maternal age
  • Absent collaboration with a physician with admitting privileges at a hospital in the immediate area
  • Incomplete emergency backup plan
  • Pregnancy extending to late-term and post-term (41-42 weeks)
  • Meconium stained amniotic fluid
  • Arrest of cervical dilation, with the ultimate outcome resulting in severe medical complications for the laboring mother and intrauterine fetal demise.

If you would like more information on the particular case or have had a similar, complicated experience, please reach out to the firm at zarzaurlaw.com or call us at 855hirejoe.

Why Would You Use A Midwife Instead Of A Doctor?

Many women choose a midwife over a doctor because they want additional emotional support before, during, and after delivery. A midwife will get to know you, your family, and your preferences over the course of your pregnancy. Midwives also allow for a planned home birth in Florida.

What Are The Possible Risks Of A Planned Home Birth?

midwifery care and risk factorsMost pregnant people who choose to have planned home births deliver without problems. But research suggests that planned home births are associated with a higher risk of infant death, seizures, and nervous system disorders than planned hospital births.

There are several factors that might reduce the risks of these problems, including having:

  • Assistance from a certified nurse-midwife
  • Access to a doctor who specializes in obstetrics
  • A plan for transportation to a nearby hospital, if needed

It’s important to talk to your health care provider before you make a decision about a planned home birth. For some people with certain health conditions, as well as those who have never given birth before, the risks of a planned home birth may be higher than they are for others.

What Is A Midwife?

Midwives are healthcare providers who deal with pregnancy, childbirth, newborn care, and postpartum health. Some midwives provide routine reproductive care like pelvic exams, Pap tests, or counseling on birth control. Midwives tend to be more holistic and supportive of natural approaches to pregnancy and birth. People often choose a midwife when they know they want a nonmedicated birth or want to give birth at home.

Midwives are usually not physicians. They often work alongside obstetricians and gynecologists (Ob/Gyns) in a hospital to ensure you have access to any care you need. A midwife is recommended when your pregnancy is low-risk or if you have only mild complications.

Pregnancy and labor are very personal experiences. You have a choice about the kind of care you’d prefer. That’s why it may help to know the differences between midwives and Ob/Gyns.

What Does A Midwife Do?

It depends on their credentials, certifications, schooling, and where they practice. Certified midwives and certified nurse midwives can offer the most services. Midwives who aren’t certified offer fewer services.

Some of the health services a midwife may provide include:

A certified nurse midwife can practice at hospitals, clinics, birth centers, or your home. Midwives who are not certified are limited in where they can practice. It’s best to ask your midwife what credentials they have and ask your hospital or birth center what the regulations are for midwife care.

What Are The Different Types Of Midwives?

There are a few different types of midwives:

  • Certified nurse midwives (CNMs): CNMs have completed nursing school and have a graduate degree in midwifery. In addition to pregnancy care and delivery, they can provide general reproductive care, prescribe medication, order lab tests and diagnose conditions. They’re qualified to work in hospitals, homes, and birth centers. CNMs are certified by the American Midwifery Certification Board. They work in all 50 states and the District of Columbia.
  • Certified midwives (CMs): CMs have a master’s degree in midwifery, but they haven’t completed nursing school. CMs have an undergraduate degree in something other than nursing. They’re certified by the American Midwifery Certification Board and can prescribe medications. CMs are only licensed to practice in a few (nine) states.
  • CPMs (certified professional midwives): CPMs work in birth centers or at home.They have completed coursework and are certified by the North American Registry of Midwives. CPMs aren’t licensed to practice in all states and can’t prescribe medications.
  • Unlicensed or lay midwives: These midwives don’t have certification or a license to practice. They are either self-taught or have received some other type of training, which could include an apprenticeship. Unlicensed midwives work almost exclusively in homes.

Are Midwives Doctors?

Most midwives aren’t doctors. Some earn doctorates in nursing practice.

The Differences Between A Midwife And An OB-GYN

OB-GYNs and midwives both provide great pregnancy care and safely deliver babies. But there are some fundamental differences.

OB-GYNs and midwives have different credentials and educational backgrounds.

While OB-GYNs and midwives are part of the same specialty area, the training, education requirements, and credentials they hold are different.

OB-GYNs are medical doctors

An OB-GYN (which is short for obstetrician-gynecologist) is a medical doctor who specializes in women’s reproductive health, as well as pregnancy care and delivering babies. They’re also surgically trained and can perform cesarean sections (C-sections) when necessary. You may already have visited an OB-GYN for your annual well-woman’s visit.

When it comes to training and education, OB-GYNs complete four years of medical school, a four-year residency program, and a three-year fellowship.

Board-eligible vs. Board-certified OB-GYNs

OB-GYNs – like other medical doctors – can also pursue certification from the American Board of Obstetrics and Gynecology (ABOG) after they’ve completed their residency and gotten their license to practice. Board-certification is optional but a mark of distinction, implying that a doctor has gone above and beyond the minimum standard of education in their field.

The path to certification requires passing a qualifying exam, preparing an extensive case list demonstrating expertise in multiple categories, and then passing a certification exam. At HealthPartners, all our OB-GYNs are board-certified.

Is A Midwife Better Than An OB/Gyn?

It’s a personal preference. Some people prefer midwives, and others prefer OB/Gyns. A midwife is typically only recommended for low-risk pregnancies. Most pregnancies in the United States are low-risk. Some advantages of using a midwife are:

  • There is less chance of induction or assisted delivery.
  • Cesarean delivery is less likely.
  • Reduced use of epidurals or other medications.
  • There is less risk of third and fourth-degree perineal tears.
  • More flexibility for home births.
  • You have greater control over your care.

Midwives are typically not trained to perform surgeries. Midwives will refer people to OB/Gyns if their pregnancy or birthing experience becomes complicated or high-risk.

Should You Have A Midwife?

A midwife might be for you IF you have a low-risk, routine pregnancy and if you desire a more personalized relationship with your provider. If you have a health condition that could complicate your pregnancy or delivery, close collaboration between your midwife and obstetrician is ideal. Some of these conditions include:

If you decide to use a midwife, we recommend finding one who’s licensed and certified to practice in your state.

The links below provide information on midwifery practices and licensed midwives in the state of Florida.

 

Florida Rule 64B24-7 Midwifery Practice >

Florida Statute Chapter 467 Midwifery >

FL DOH Licensed Midwifery >

Do Midwives Do C-sections?

Midwives can’t perform c-sections, but they can assist in them. If you require a c-section, a collaborating physician will be called on to assume care.

Do Midwives Give Epidurals?

Some midwives can prescribe epidurals, but midwives can’t give epidurals. They consult with an anesthesiologist or a certified registered nurse anesthetist (CRNA). Anesthesia providers are typically available in hospital settings only.

What Questions Should You Ask Before Choosing A Midwife?

A lot of people interview potential midwives to make sure they feel comfortable with them prior to beginning services. Some questions you should consider before choosing a midwife are:

  • Where will I deliver my baby?
  • What kind of training do you have?
  • How long have you been a midwife?
  • How many births have you attended?
  • What are your philosophies or values when it comes to childbirth?
  • What kinds of tests or screenings do you perform during pregnancy?
  • Does insurance cover any of the cost?
  • Do you work with any local Ob/Gyns?

If Necessary, Prepare To Go To A Hospital

Make the following preparations for a smooth transition to a hospital, if you need it:

  • Discuss with your health care provider the symptoms that might mean you’ll have to go to a hospital. Talk about how that fits into your birth plan.
  • Make sure you have access to transportation. Ideally, your home or other birth location is within 15 minutes of a hospital with 24-hour maternity care.
  • Ask your health care provider to make arrangements with a nearby hospital to ensure that you can be promptly moved to the hospital and treated, if necessary.

The links below provide important information with regards to emergency backup plans and agreements for midwives in the state of Florida.

 

Florida Department of Health Emergency Plan for Licensed Midwifery >

Florida Department of Health Collaborative Management Agreement >

Hospitals or certified birth centers are the safest settings for delivery. However, you have the right to make an informed decision about where you prefer to deliver your baby. Keep in mind that life-threatening problems can occur during labor and delivery. In those cases, the need to take you and your baby to a hospital could delay care. That could put your lives at risk. Understand the risks and benefits of a home birth before you make a decision about where to deliver.

Watch Our YouTube Video On This Subject 

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If your newborn child has been injured or have experienced a birth injury, while in the care of a midwife, it’s important that you don’t make any rash decisions. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board-Certified Trial Lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe, or by requesting a free case review through our website.

Sources:

https://my.clevelandclinic.org/health/articles/22648-midwife

https://www.healthpartners.com/blog/midwife-vs-obgyn-whats-the-difference/

https://www.mayoclinic.org/healthy-lifestyle/labor-and-delivery/in-depth/home-birth/art-20046878

Florida Rule 64B24-7 Midwifery Practice

https://www.flrules.org/gateway/ChapterHome.asp?Chapter=64B24-7

Florida Statute Chapter 467 Midwifery

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0400-0499/0467/0467.html

FL DOH Licensed Midwifery

https://www.floridahealth.gov/licensing-and-regulation/midwifery/index.html

FL DOH Emergency Backup Plan For Licensed Midwifery

https://www.floridahealth.gov/licensing-and-regulation/midwifery/resources/_documents/emergency-backup-plan.pdf

FL DOH Collaborative Management Agreement

https://www.floridahealth.gov/licensing-and-regulation/midwifery/resources/_documents/collaborative-management-agreement.pdf

What Are The 9 Steps In Determining Whether A Potential Medical Malpractice Case Is Worthy Of Pursuing Legally?

First, it is important to realize that most incidents of medical malpractice go without any legal action. Many events occur, and patients or their facilities never realize that their bad results were related to potential medical malpractice. Other cases do get the attention of the patient or the patient’s family but do not warrant a medical malpractice action. Then there are a select number of cases where there is medical malpractice AND the case justifies the pursuit of a medical malpractice lawsuit.

This discussion will center on the process that Zarzaur Law will utilize in evaluating each and every potential medical malpractice action. Initially, it should be understood that Florida’s medical malpractice laws greatly favor medical providers. The statutes dealing with bringing medical malpractice lawsuits have been amended several times over the years to erect more and more barriers to suing medical providers. Each one of these barriers has not only made it more complex to bring legal action but also increased the costs associated with prosecuting a medical malpractice case.

Unlike in every other legal case in Florida, healthcare workers being sued for malpractice enjoy greater protection from suit. Since the system is basically stacked against our clients/patient victims, our evaluation is measured against the backdrop that will advantage the healthcare worker. It is not a level playing field, and we have to factor this bias into the evaluation from the start.

Also, it is worth mentioning that, all else being equal (which it is not given the discussion above), when you walk into a courtroom, doctors, nurses, and healthcare workers already get the benefit of the doubt. We tell clients that, as a plaintiff seeking money damages, you are immediately viewed as a suspect. The opposite is also true for police officers, doctors, nurses, and other healthcare workers. Potential jurors view each of those professions with huge respect and admiration. All of these biases have to be considered by you and your law firm from the start of the process. We are not evaluating a case in a vacuum; we are evaluating your case in the jurisdiction in which it will be litigated.

Now, let’s talk about the steps in the process of a medical malpractice evaluation.

There are nine basic steps to evaluating a Florida Medical Malpractice case:

1. Obtain Medical Records:

This sounds simple. It is not. Many patients have some records when they first meet with us. They rarely have all of the records. These days, medical records are mostly kept in an electronic format known as an EMR, or electronic medical record. The hospitals do not produce the “audit trail” for any patient when they provide copies of medical records. The audit trail captures all of the touches to the file and documents any changes made to the EMR, while also recording the time and identity of the revisions. Generally, this part of the process takes between 30-60 days to complete in total. Our firm is able to utilize certain Florida Medical Malpractice statutes that require a 10 day turn-around and if the provider does not comply, then it relieves the compliance with other requirements. Many providers do not comply with the 10-day statute for providing records, but we still need the records for the case. So, we generally have to wait until they are provided. This usually takes up to 60 days to make sure we have ALL of the medical records. As you can imagine, it is invaluable to have a board-certified internal medicine doctor on staff who can review these records as they are provided to make certain that we are not being provided incomplete records.

2. Complete A Legal And Medical Review

Once all of the medical records and the related audit trail are provided, the medical and legal review can start.  First, the medical review takes place with the use of our full-time medical doctor staff member. This means that our firm can review a potential medical malpractice case as soon as the records are received. So, usually within the first 75 days, we will have the medical records in the office and then have them reviewed by our physician. This review will provide us with all of the information that we suspected since the first discussion with you about your case.

Dr. Malone will review these records and will meet with one of our lawyers to discuss the medical issues involved. At that point, Mr. Zarzaur will be brought into the review, and there will be a discussion of the medical mistakes, the medical defenses, and other legal issues that could be related to the fact situation. This part of the process only takes a few days to finalize. The longest part of the review process is not really the review. Once the review is completed and if there is a decision to continue with the case, we have to determine which providers or facilities will be the primary targets of the case.

Determining the targets of the case is critical at this point since, under Florida Medical Malpractice law, a case must employ experts in each medical field that is at issue. The Florida Medical Malpractice law requires that each expert hired and used by a Plaintiff must have similar credentials to the target of the case. So, if you are going after a General Surgeon who is board-certified, then your expert has to be a General Surgeon who is board-certified.

So, we not only research the medical issues involved, but we also have to dive into the credentials of each target in the case to ensure we have a correct statement of their credentials. We then must seek out experts that will meet the standards of Florida Medical Malpractice law. If they agree to serve as experts in the case, we can then move to the next step. This entire review process usually takes only a week or two to complete.

3. Gather Expert Opinions And Have Them Sign An Expert Affidavit For The Presuit Process.

As discussed above, once we have identified a qualified expert for each target of the medical malpractice case, we then contact the expert and make arrangements for that expert to review the medical records. The expert will generally review the medical records and then follow that up with a call between our firm and the expert. This call is attended by our firm physician and Mr. Zarzaur. During this call, the expert will explain whether they feel that the conduct as reflected in the records rises to the level of medical negligence.

If the expert does conclude that the conduct amounts to negligence, then the expert will be asked to draft a statement or a Presuit affidavit, aka a corroborating medical opinion. This sworn statement is required by Florida Medical Malpractice law unless the law exempts this requirement. If the expert does not feel that the conduct in the records does not amount to medical negligence or that the negligence was not the medical cause of the injury or death, then the case is over.

We will inform you as soon as possible that our investigation is complete and the expert does not feel that the matter should be pursued. As you can imagine, speaking with these experts by phone helps immensely when you have a medical doctor at the law firm. The medical doctor experts really like to speak with “one of their own” when a law firm is calling.

4. Prepare And Serve The Notice Of Intention To Sue

Once we have the medical opinion affidavit(s), we can now draft the notice of intent to sue. This notice is required to have information and if anything is omitted, the case could be dismissed. It is critical that this notice of intent and its attachments be drafted exactly as required by the Florida Medical Malpractice Act. If the law firm you are considering has not performed this function on a regular basis, it is a potential minefield of mistakes for the inexperienced.

The notice of intent also has to include medical authorizations that are specific to this process and executed by the client. The document must also include the names of providers that have rendered care to the client or decedent for a period of 10 years. Then, of course, the expert affidavit (s) must also be included. The package must be sent out via certified mail, and proof of delivery must be retained for the file.

Once this notice of intent is served, the Presuit period has begun. The defendant has 60 days from the receipt of the notice of intent to respond. Keep in mind that the parties can voluntarily extend the time of the presuit period, so sometimes the process could take longer.

5. Presuit Discovery

Discovery is basically the trading of information. Discovery is typical once a lawsuit is filed, but Florida’s Medical Malpractice Act allows for limited discovery even before the medical malpractice lawsuit is filed. This is called the “presuit discovery process.” Each party can ask for documents and can also ask that each party provide informal statements. Defendants are usually asked to take the informal (unsworn) statement of the plaintiff or personal representative of the plaintiff’s estate. They do this for two reasons.

First, they do this because they can and the law allows it. Second, they want to know how credible the client will be once the case is filed. The legal reason that the Florida Medical Malpractice Act allowed for Presuit discovery was to encourage an early resolution of the case.

The fact is that most cases do not result in early settlements despite the exchange of information at this early stage. We still must comply with the legal obligation. If you don’t, then your case can be dismissed for failure to comply with the Florida Medical Malpractice Act.

6. Presuit Process Concludes

The Defendants can conduct their own review of the Plaintiff’s notice of intent and affidavits, and then meet and consult with their own experts. The Florida Medical Malpractice Act allows for the Defendant’s to admit negligence. If they admit to a medical mistake, then the defendant is entitled to a cap on damages for pain and suffering. This cap is typically $350,000.00 on those damages.

This means that if the defendant admits negligence during the Presuit process, they will gain the use of a damage cap on pain and suffering damages. This admission will also include a demand for arbitration, which means that they also want to meet and discuss a full resolution of all claims before suit is filed. If the informal settlement is not successful in resolving all issues, then the plaintiff can proceed with litigation, but since the defendant admitted liability, they get to take advantage of the damage cap even in the lawsuit.

Defendants do not admit negligence often, so the most likely conclusion to the Presuit process is their denial of liability. This denial is due within 90 days of the service of the notice of intent unless there is some agreement to extend it. If the defendant does not answer within 90 days, then the matter is deemed denied. This denial or the expiration of the pursuit time period gives clearance to the plaintiff to file the medical malpractice lawsuit.

7. Lawsuit And Discovery Draft And File

Now the case can finally be filed. If there was a mistake made during presuit, the defendant may file a motion to dismiss the lawsuit, citing the deficiencies in the presuit period. This is why it is vital for lawyers to make certain that they take care to comply with the presuit statutes set out in the Florida Medical Malpractice Act. The lawsuit should be specific enough to explain the basis of the negligence, but not so specific as to prevent you from expanding the theory upon learning more from the discovery in the case.

The written discovery requests to the health care providers and facilities will include much of the EMR and the meta data, including the audit trail. Medical records are virtually all kept electronically these days. This means that each note in the record will have a track record showing the exact date and time of each entry as well as a username for such an entry. This is obviously a critical element since the timing of entries is typically related to the quality of the medical care provided.

8. Medical Malpractice Depositions

Perhaps the most effective tool in the litigation process is the witness deposition. Lawyers cannot control their witnesses in the same way that they can with discovery papers. A witness is on their own in a sworn deposition and they are subject to aggressive questioning. Most of the defendant healthcare providers have rarely, if ever, been questioned about their actions regarding anything in their adult life. Some of them do not handle such examinations well. As you can imagine, many defendant healthcare providers treat these cases and the lawyers that bring them as a nuisance to their existence. They feel above this system of justice and that their judgment should never be questioned. This trait is not really compatible with our system of justice since it usually comes across as aloof or as if the witness is either hiding something or both.

These depositions help level the playing field. Again, having a board-certified physician sitting across the table from the target physician is immensely helpful to our clients. Doctors typically engage in what I will call “jargon subterfuge.” When they feel a tight spot coming in a deposition, they will sprinkle some medical jargon into a sentence, attempting to justify their action or inaction. This subterfuge may sound good to the average person, but when a fellow doctor is in the room, this type of subterfuge stinks up the room. Most lawyers do not have their experts at depositions, and most do not have full-time physicians on staff. Dr. Malone attends all depositions for our medical malpractice clients, and the target doctors know that they will be sitting at a table with not only an experienced litigator but also a board-certified internal medicine physician. This fact has made the medical malpractice depositions in our firm much more productive for our clients.

The same is true for the deposition of the medical experts for the defendants. They often come up with some ridiculous defenses that involve both logical and medical gymnastics. These experts have a more difficult task of coming up with illogical medical defenses when they can be shot down in real time by a team composed of an experienced physician and lawyer.

The depositions in a Florida Medical Malpractice case can last for years. This portion of the case takes time because it generally involves coordinating schedules between several parties and their lawyers. Further, it is imperative that all fact witnesses and parties be deposed first, and then you can move on to the expert depositions.

9. Mediation And Trial

Once the discovery is completed or is completed enough so that each party has the ability to see what the other party has as evidence of their claim or defense, the parties can meet and discuss the possibility of settlement of the claims. This meeting is called mediation. It is an informal meeting of the parties and their lawyers, usually at a neutral third-party lawyer’s office. This neutral lawyer is called a mediator. He/She serves as an unconnected lawyer who can assist in trying to find out if the parties have enough common ground on the case that would allow for some amount of money that both could agree to settle the claims.

Mediation is successful about 60% to 70% of the time in Florida Medical Malpractice cases. All parties are required to participate in mediation since the judge orders the participation. You will be provided preparation before the mediation, but you will have no active role in the process other than evaluating the other party’s arguments and determining whether the offers that they are making are reasonable enough to provide counter demands to them.

If the case is not settled at mediation and then not settled between mediation and trial, then the case will go to trial. If the case goes to trial, we will be calling all of the witnesses that have been deposed in the case as witnesses or cross-examining them as defense witnesses. Again, our firm will meet with you for a few days to prepare you for the trial.

As you can see, the Florida Medical Malpractice process is not a quick and simple process. It is critical that the law firm and lawyer handling your Florida medical malpractice case not only have experience in this area, but also have the resources and staff to handle this type of case. Zarzaur Law has purposely created a firm that is best suited for medical malpractice cases. If you or a loved one has been the victim of medical malpractice and would like a free consultation, please contact us at zarzaurlaw.com or call 855HireJoe.

WATCH OUR YOUTUBE VIDEO  >

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

Sources:
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/0766ContentsIndex.html

 

Pensacola Personal Injury Lawyers – Car Accident, Wrongful Death, Malpractice

 

COVID-19 and Florida Medical Malpractice Cases.

All of us can easily recall the sight of healthcare workers braving the threat of the pandemic to care for the sick and dying. As a country, we were all cheering for our healthcare workers and thankful for their dedication to their professions. At the same time, many state legislatures were busy passing laws that they knew would likely garner public support. 

The Florida legislature, with a Republican majority, was no exception to this desire for attention. When politicians want attention, they think of laws that they can champion that will let them share in the spotlight that is rightfully focused on the healthcare industry.

Civil Immunity From COVID-Related Lawsuits

Florida Republicans decided to pass a COVID-19 medical malpractice law that basically insulated healthcare workers from being sued for malpractice if the matter was related to a COVID-19 diagnosis or treatment. The Florida legislature did in fact pass Florida Statute Section 768.38 Liability Protections for COVID-19 Related Claims.

Complexity And Expense Of A Medical Malpractice Lawsuit

First of all, as Zarzaur Law pointed out in several videos during the height of the virus in 2020, medical malpractice lawsuits are already incredibly expensive and difficult to prosecute and win in Florida, even in the absence of this new COVID-19 statute. As we have discussed in many blogs and vlogs before, medical malpractice statutes in Florida make the pursuit of any medical malpractice case expensive and time-consuming.

Generally, the pursuit of a medical malpractice case will cost approximately $100,000.00–$300,000.00 in out-of-pocket expenses to prosecute. No law firm or lawyer in their right mind would ever decide to spend this amount of money on a case that they did not feel they had a better than average chance of winning.

This is why most every medical malpractice case generally requires that the injury be catastrophic or result in death before law firms can even consider handling the case. This is true even in the most egregious cases of medical recklessness.

Liability And The Jury

Obviously, before any health care provider is found liable for negligence, a jury would have to conclude that they were negligent. No jury, we would contend, would find any healthcare worker caring for COVID patients during the pandemic liable for anything short of intentional murder. No jury would ever conclude that a medical provider was negligent for giving care in the midst of the pandemic. For this reason, we feel that passing laws that make it harder is really a solution in search of a problem.

Non-COVID Patients And The Pandemic

However unnecessary we may think it is, Florida now has a statute that makes it nearly impossible to sue a healthcare provider for COVID-related issues. Setting aside all potential medical negligence cases that are related to COVID diagnosis or treatment, the COVID statute also protects healthcare providers rendering NON-COVID care if their negligence was directly related to the COVID pandemic.

So, this allows healthcare providers to argue that non-COVID patient negligence was related to the COVID pandemic, and if so, the healthcare worker will be able to use the statute to shield himself/herself/itself from liability.

Practically, this is how that may play out. A cardiac patient is not cared for properly and dies while an inpatient at the hospital. The hospital could attempt and argue that due to the COVID-19 pandemic, it wasn’t able to provide the amount of care that it would otherwise have provided. This argument could be used to try and use this statute as protection from responsibility.

The section of the statute dealing with these indirect issues reads as follows: “An act of omission with respect to an emergency medical condition… and which act or omission was the result of a lack of resources directly caused by the COVID-19 pandemic;”  § 738.38(d)(5) Florida Statutes.

The challenge for the healthcare provider would be to show that the misfeasance was “directly related” to the COVID-19 pandemic. This causation element would likely involve fact issues that would need to be determined by the fact-finder in a case, but if found to exist, would allow healthcare workers to avoid liability for negligence associated with non-COVID patients.

This is obviously a dangerous and expansive argument, but it very well could be used by defendants to try and escape liability for culpable conduct. If you or a loved one is the victim of medical malpractice and you desire to have a FREE CONSULTATION with a firm that has a medical doctor on full-time staff, please feel free to reach out to our firm at zarzaurlaw.com or call us at 855Hirejoe.

WATCH OUR YOUTUBE VIDEO WITH JOE ZARZAUR & DR. EVAN MALONE >


Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

Your Right To Know About Your Doctor Or Hospitals Track Record

Knowing Your Doctor or Hospital Track Record Is Allowed in Florida

 

 

 

 

 

 

 

“You are constitutionally allowed to know about your doctor or hospital’s track record”

Florida citizens have a constitutional right to know about their doctor or Hospital’s track record of adverse medical incidents.  This has not always been the case.  In fact, prior to November 2, 2004, healthcare providers and hospitals had the right to keep these adverse incidents confidential and resisted the disclosure of such information.

However, on November 2, 2004, Florida conducted an election and contained on that ballot was a constitutional amendment that was titled “Patients’ right to know about adverse medical incidents.”  This ballot initiative constitutional amendment was passed by Florida voters and became Article X, Section 25 of the Florida Constitution.

THIS PROVISION IS COMMONLY REFERRED TO AS “AMENDMENT 7”.

Amendment 7

Amendment 7 allows for patients to have the right to access any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.  The purpose of the Amendment was to provide a means to allow patients to know more about their doctor or the facility that they are considering treatment.

Adverse Medical Incident

The phrase “adverse medical incident” is defined in this statute to not only include negligent acts but also any act that could cause injury or death of a patient.  As you can see from the use of the words “any act” this Amendment was intended to allow patients to have wide latitude in the availability of documents from the facility or the provider.

The purpose of the expansive wording was to permit patients to access any possible information about the facility or provider that could be used to make decisions concerning treatment.  Informed decisions necessarily involve a cost-benefit analysis.  This type of evaluation requires that a patient have information about the adverse results of a procedure or from a particular provider.

Hospitals Challenge the Amendment

Hospitals have not welcomed this Amendment with open arms.  This is an understatement.  Hospitals have done everything in their power to challenge this amendment.

First, they chose to challenge the law based upon constitutional challenges, then they argued that it violated their rights to keep this information private.  They continue to argue that the information violates work product privileges and lawyer-client privileges.

Even though Amendment 7 was intended to be used by “patients”, the reality is that even experienced medical malpractice lawyers are having to fight extended legal battles to enforce the provisions of this law.  It would appear that hospitals are quite reluctant to provide the information to patients voluntarily even though this is now a constitutional right of each Floridian.

As part of each medical malpractice case, Zarzaur Law, P.A. requests Amendment 7 information on behalf of our clients. This information usually requires a hearing before a judge who will hear the common objections made by the hospital lawyers and then rule. Many local hospitals hire law firms devoted to fighting Amendment 7 issues.  So, they will have a law firm hired to defend the medical malpractice case and then have a law firm hired to represent them in the Amendment 7 document requests.

HOSPITALS AND PROVIDERS DO NOT WANT TO GIVE THIS INFORMATION UP, BUT THE FLORIDA CONSTITUTION NOW REQUIRES IT.

If you have a medical malpractice case or if you have the need for Amendment 7 information for your own personal healthcare decisions, please feel free to contact our firm online at ZarzaurLaw.com or call us at 855HIREJOE.

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If you’ve been the victim of an accident, it’s important that you don’t make any rash decisions. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

Sources:
http://www.leg.state.fl.us/statutes/index.cfm?submenu=3#A10S25

https://www.law.cornell.edu/constitution/seventh_amendment

Medical Malpractice Lawyers in Pensacola, FL

How Do You Know if You Have a Medical Malpractice Case?

Medical Malpractice Case PensacolaAs a child of a surgeon, I grew up with a special fondness and admiration for physicians.  In fact, as a child and young teenager, I spent many hours waiting in the staff lounge as my father performed his rounds on patients. Being reared in a home led by a medical doctor necessarily transfers a high level of deference and respect for those in our communities that help others for a living as healthcare practitioners.  Those deep feelings of respect and admiration remain in me to the present day.

As I became more and more experienced as a personal injury lawyer that handles medical malpractice cases, my default feelings of admiration and respect became less and less automatic when I realized like all professions, medicine included those who made mistakes.

Mistakes in the hospital or operating room happen and sometimes they end up causing additional harm to a patient.  This event is generally referred to as a medical malpractice case.

Florida’s Medical Malpractice Laws

Florida Medical malpractice law governs this area of law and generally holds that all physicians must practice medicine in a “reasonable” manner.  Reasonable in terms of that physicians training and experience. For example, Florida medical malpractice law requires that before a physician or healthcare practitioner is accused of medical malpractice there must be an expert who has nearly the same credentials who reviews the records and concludes that the healthcare practitioner failed to use reasonable care.

Many potential clients think that anything that does not go as expected in their medical care must be medical malpractice.  That is not accurate.  Even if there is a medical mistake, there is only an actionable cause of medical malpractice if that mistake actually caused a significant injury or death.  Said another way, a healthcare worker can make a mistake (technically medical malpractice) but if that mistake does not result in an injury or death then there is no case for medical malpractice.


A healthcare worker can make a mistake (technically medical malpractice) but if that mistake does not result in an injury or death then there is no case for medical malpractice.


What Qualifies as a “Medical Malpractice” Case?

So, to have a potential medical malpractice case in Florida, a patient must have had a medical mistake that amounts to unreasonable care AND must have suffered an injury or death from that mistake.  A crazy example may be good to illustrate how these elements of medical malpractice must both be present.  Let’s imagine a situation where someone is having surgery and during the procedure, the surgeon drops a sharp scalpel into the patient’s open surgical site.  Thankfully, the imaginary doctor notices the mistake and carefully removes the scalpel, and inspects for any injury.  There is no injury, and the surgery isn’t delayed, and the patient recovers as expected.  Well, there was a mistake and certainly, one that could be considered less than reasonable care.  The missing element, however, is that the mistake did NOT cause an injury or death.  So, simply being the victim of a medical mistake does not make up a Florida medical malpractice case.

What to Consider in a Florida Medical Malpractice Case

Making this evaluation even more complex is that recommending the pursuit of a medical malpractice case involves an additional consideration:

  • How bad is the injury caused by the malpractice? This additional consideration is due the fact that unlike many other types of lawsuits, Florida medical malpractice cases are quite expensive and involve years of lawyer time. Law firms, like Zarzaur Law, P.A., that accept medical malpractice cases know in advance that these cases will some of the most expensive cases for them to prosecute.
  • The lobbying groups for medical facilities and practitioners have successfully been able to get Florida state laws passed that make it costly to sue a medical provider or hospital. These cases typically cost between $100,000.00 to $200,000.00 to bring. These are the costs that just get you a seat at the trial. These expenses would be carried by the law firm and the firm will place those expenses and its lawyers’ time in the balance.  If the case is lost the firm will have to absorb these costs and if there is a victory there must be sufficient enough recovery to pay these costs, enable the client to recover, and provide an lawyer fee to the firm.

Law firms working on medical malpractice cases are just like any other business.  If their work results in a net loss to the firm, that firm will not be around very long.  This fact mandates that when a law firm is considering a potential medical malpractice case, it must consider not only the merits of the mistake and injury elements but also must determine whether the likely recovery will easily payback all of the expenses and will still allow for a generous recovery for the client and a fee for the firm.

As you can see from this discussion, whether you have a medical malpractice case in Florida involves several considerations which all must come together to make a successful medical malpractice case. If you or a loved one was the victim of a medical mistake and is seeking a law firm to evaluate any potential medical malpractice case can contact Zarzaur Law, P.A. on the web at zarzaurlaw.com or call us at 855Hirejoe.

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

Sources:

https://ask.superlawyers.com/florida/medical-malpractice/how-is-medical-malpractice-proven-in-florida/772c29d9-87b2-4e9e-bdf8-1d5755529050.html

https://zarzaurlaw.com/medical-malpractice/

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0766/Sections/0766.102.html

https://malpracticecenter.com/states/florida