Tag Archives: Medical 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.

AMBULATORY SURGERY CENTER LIFE-THREATENING RISKS

Guaranteeing a patient’s health and safety during surgical procedures requires mandatory care measures that must be considered before, during, and after the operation. In the past, surgical procedures were performed in hospitals, with more than enough staff and equipment to aid patients regardless the type of surgery required. Among the many operations, there are those that need post-operative care without the need for hospitalization, allowing patients to return home a few hours after the surgery. This type of procedure is known as ambulatory surgery.

ZL_blog_Ambulatory_Surgical_CentersThe growing population, new medical discoveries, and increased demand for medical attention has resulted in the lack of enough operating rooms in hospitals. This fact led physicians to open their own Ambulatory Surgical Centers (ASC) in order to offer non-invasive surgeries to patients who do not need an overnight stay. This cost-effective solution for outpatients met federal regulations and approved. Currently, many surgical specialties can be treated on an outpatient basis. Health programs as Medicare began to certify the centers that meet the requirements to provide care to their insured. As of today, there are 5,480 ASCs that have been certified by Medicare (Rechtoris, 2017).

As the number of surgery centers has increased throughout the years, so have the risks. According to an investigation by USA Today in conjunction with Kayser Health News, “Florida has counted at least 335 life-threatening or fatal medical ‘adverse events’ since 2013 at ambulatory surgery centers.” Yearly, 911 receives thousands of calls per year from these surgery centers requiring help for patients with both minor and fatal complications. The exact number of people who have died in these centers during a surgical procedure is unknown since there is no official report.

Four factors you need to consider
If you or a family member is planning an outpatient surgery at a surgery center, it is vital that you consider the following aspects.

1. Health Risks involved – Health disorders can represent risk factors resulting in complications or death after surgery. Among them: overweight, obstructive pulmonary disease, and hypertension. Make sure that your current health condition does not represent a risk for the surgery that is to be performed.

2. Emergency crash carts – Emergency equipment is mandatory in any operating room as well as qualified staff that knows how to operate this equipment during a life-threatening situation. Make sure your surgery center has an emergency crash cart.

3. Anesthesia – Health conditions such as obesity, sleep apnea, and respiratory problems can affect patients during surgeries because of the anesthesia. Previous evaluations serve to find if the patients present those conditions. If so, they might need a hospital instead of a surgery center. Remember that all procedures that involve general anesthesia should be performed with an anesthesiologist present.

4. Infections – The Centers for Medicare & Medicaid Services (CMS) conducted an infection control audit in a total of 68 ASCs to assess compliance with recommended practices in 2010. The results, which were published in the Journal of the American Medical Association (JAMA), suggested that infection control practices in these ASCs were deficient and not specific for the given state.

According to medical reporter Sandra G. Boodman, studies have found that approximately 1% of patients in surgery centers develop severe complications that require transfer to a hospital during or immediately after a procedure.

There is no way to predict that you will be one of these patients. Inform yourself and ask all the necessary questions to your doctor before undergoing an outpatient procedure in a surgery center.

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

If you or a loved one has been seriously injured during a procedure at an Ambulatory Surgery Center, it is important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents and injuries can be devastating 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:

Gluck, F. & Jewett, C (2010) .Florida surgery centers not always prepared to handle life-threatening medical emergencies. USA Today and Kaiser Health News. Retrieved from https://www.usatoday.com/story/news/investigations/2018/03/02/florida-surgery-centers-not-always-prepared-handle-life-threatening-medical-emergencies/1084132001/

Koenig, L., Doherty, J., Dreyfus, J. & Xanthopoulos, J. (2009). An analysis of recent growth of ambulatory surgical centers: Final report. KNG Health Consulting

Rechtoris, M. (2017, February 21). 51 things to know about the ASC industry | 2017. Becker’s ASC Review. Retrieved from https://www.beckersasc.com/asc-turnarounds-ideas-to-improve-performance/50-things-to-know-about-the-asc-industry-2017.html

Boodman, S. (2014) Popularity of Outpatient Surgery Centers Leads to Questions About Safety. Medpage Today. Retrieved from https://www.medpagetoday.com/publichealthpolicy/publichealth/49213

Jewett C. & Alesia, M. (2018, March) As Surgery Centers Boom, Patients Are Paying With Their Lives. Kayser Health News. Retrieved from https://khn.org/news/medicare-certified-surgery-centers-are-expanding-but-deaths-question-safety/

The Effects Of Medical Professionals Making Mistakes (aka Medical Malpractice)

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What could be worse than receiving a diagnosis for a serious illness? We can think of a couple. Receiving a diagnosis for a serious illness and then being mistreated by your medical care provider for that illness or a hospital error that led to preventable death are at the top of the list.

Medical malpractice is defined as a breach in the standard of care for a physician or other health care professional that results in injury or illness to a patient. Medical malpractice can be a consequence of mistakes in diagnosis, treatment, or management.

Medical errors are now the third leading cause of death in the United States, according to a recent article published in The Washington Post. Horror stories of nurses giving potent drugs meant for one patient to another and surgeons removing wrong body parts are making their way to news coverage and the public.

mal200x267The facts about diagnostic errors are very dark. A new study by patient safety researchers, recently published on BMJ, shows that “medical errors” in hospitals and other health care facilities are incredibly common — claiming 251,000 lives every year, more than respiratory disease, accidents, stroke and Alzheimer’s. To further put this into perspective, that means that more people die from medical errors every year than die from breast cancer, prostate cancer and drunk driving combined.

Martin Makary, a professor of surgery at the Johns Hopkins University School of Medicine, explained in a recent interview explained that medical errors include everything from bad doctors to more systemic issues such as communication breakdowns when patients are handed off from one department to another.

With the calculation of 251,000 deaths of year equating to nearly 700 deaths a day — about 9.5 percent of all deaths annually in the United States, what is being done to prevent and fight this shockingly growing number?

The answer? Not much.

184399153The Centers for Disease Control and Prevention doesn’t require reporting of errors in the data it collects about deaths through billing codes, making it hard to see what’s going on a national level.

One study found that, between 1991 and 2005, 5.9% of all doctors were responsible for 57.8% of all malpractice payments. Given that each of these doctors had committed at least two acts of malpractice, this evidence clearly indicates the importance of going after the few deeply incompetent doctors that are responsible for the majority of medical negligence.

To make matters worse, only 8% of these doctors who made multiple (over 2) malpractice payouts were disciplined by state medical boards. Only 17% of doctors with more than 5 malpractice payouts were disciplined.

“The CDC Should update its vital statistics reporting requirements to that physicians must report whether there was any error that led to a preventable death,” Makary said.

Furthermore, a Harvard School of Public Health study examining over 1,400 medical negligence claims found that 97% of the claims had merit and 80% of the malpractice referenced by the claims resulted in serious injury or death.

The striking majority of all medical malpractice results from preventable human error.

What should you do if you think you’ve been the victim of medical negligence? First, get a second opinion from another health care provider right away to make sure that any treatment your current provider has been administering does not immediately jeopardize your health or safety. Once you’re found yourself in better hands, call Zarzaur Law of Pensacola and Destin, Florida.

zarzaur-law-logo-1If you’re unsure your case qualifies under the definition of medical malpractice — contact Zarzaur Law. We are a highly experienced Pensacola, FL medical malpractice team that can help uncover the extent of your medical malpractice claim and get the justice you deserve against the parties at fault. Not only do you owe this to yourself, but you also owe it to any other patients who might be hurt by the responsible doctors (who are statistically likely to be repeat offenders).

There are strict and statutes of limitations for filing medical malpractice lawsuits in Florida, so it is important to take action as soon as possible to protect your rights. Call us for a free consultation.