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Florida Supreme Court Strikes Down Medical Malpractice Damage Cap

Florida’s highest court recently declared unconstitutional a state law that limited the amount of money plaintiffs could collect for the loss of a loved one due to medical malpractice. The decision, made by a 5 to 2 majority, ruled that the law was an unlawful breach of the Florida Constitution’s equal protection guarantee.

Florida Supreme Court Strikes Down Medical Malpractice Damage Cap

As discussed by Reuters, the decision revolved around a challenged law that had capped medical malpractice claims at one million dollars. The tort cap was passed by the Republican-led legislature in 2003 and signed into law by then governor Jeb Bush. Ten years ago, supporters of the bill alleged that the limit was required to reduce insurance rates and keep doctors from moving out of state.

The damage award limits applied to situations where a patient died due to negligent care from their healthcare provider, and its existence made Florida one of over 30 states with some sort of ceiling on malpractice claims. Now that the law has been struck down, Florida has joined a group of six other states eliminating such laws.

The Court Opinion

In its decision the Florida Supreme court held “[t]he statutory cap on wrongful death non-economic damages does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.” The court reasoned that, “[t]he cap on non-economic damages serves no purpose other than to arbitrarily punish the most grievously injured or their surviving family members,”

Regarding the existence of the “medical malpractice crisis” cited by supporters of the 2003 law the court wrote, “even if there had been a medical malpractice crisis in Florida at the turn of the century, the current data reflects that it has subsided.” The court went on to say, “[n]o rational basis currently exists (if it ever existed) between the cap imposed … and any legitimate state purpose.”

The constitutionality of the law came before the court on appeal after a trial judge limited his verdict to be consistent with the cap. The parents of Michelle McCall brought the suit after their daughter died from severe bleeding during childbirth. The original verdict awarded $750,000 to each of Ms. McCall’s parents and $500,000 to Ms. McCall’s son who survived the delivery.

Advocates for striking down the law had argued that caps on damages were “fundamentally unfair to the victims of medical negligence,” according to ABC News. Speaking on behalf of the Florida Justice Association, Debra Harmon said, “when little kids lose their mommy or daddy because of medical malpractice, they’re absolutely victims.”

The Florida Supreme Court’s recent decision does not affect the portion of the law limiting malpractice awards when no death is involved. Although, the question of whether or not that aspect of the law is constitutional is expected to come before the court in the future.

If you or a loved one has been injured by the malpractice of a doctor or other healthcare provider, contact Fetterman and Associates at 561-845-2510 for a free case evaluation today.

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Pharmacy Errors Year in Review

Pharmacy Errors Year in ReviewPerhaps the biggest story of 2013 in the area of pharmacy errors revolved around the fungal meningitis outbreak linked to compounding errors in tainted steroids from the New England Compounding Center that caused hundreds of illnesses and dozens of deaths around the country.

In response, the National Association of Boards of Pharmacy came down on six compounding pharmacies in four states. Meanwhile, the FDA and state pharmacy boards also stepped up inspections and found an abundance of safety violations at compounding pharmacies nationwide. The crisis culminated in Congress’ passage of the Drug Quality and Security Act, aimed at increasing regulation of compounding pharmacies, although the somewhat toothless reforms may not do much in the end to increase public health and safety. Compounding is the process of preparing a particular medication to meet the needs of specific patients who may have allergies to certain ingredients or require their medications in a particular form.

In other news, the latest Medication Self-Assessment Survey issued by the Institute for Safe Medication Practices (ISMP) revealed an average score of 64% on initial and ongoing training on medication use and safe medication practices to prevent medication error. ISMP is the nation’s only nonprofit organization devoted entirely to the prevention of medication errors and the safe use of medication.

Also in 2013, the American Society of Health-System Pharmacists (ASHP) at its Summer Meeting held a session on crisis management to deal with catastrophic medication errors and the fallout in negative media coverage and lawsuits that could follow. Recommendations included having a crisis management team at the ready, including the hospital’s chief public relations officer and legal counsel on the team, among others.

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Federal Judge Rules Florida Medical Malpractice Consent Rule Runs Afoul of HIPAA

Florida LegislatureEarlier this year the Florida legislature made several changes to the state’s medical malpractice law. One provision, found in Florida Statutes 766-1065, required the injured patient in a medical malpractice suit to allow the attorneys for the defendant doctor and his or her insurance company to discuss matters related to the case with any of the patient’s other health care providers, without the patient or his or her attorney being present. Fortunately, this invasive law was recently struck down in federal court. On September 25th, the judge in Murphy v. Dulay held that the Florida law violated federal law, specifically the Health Insurance Portability and Accountability Act (HIPAA). Among other things, HIPAA strengthens patients’ rights to privacy of their “protected health information.” HIPAA states that any patient consent authorizing the release of medical records must be given freely and not under duress. Furthermore, patients who object to the disclosure of personal medical information have the right to complain in a judicial or administrative setting. The court in the present case declared that the “ex parte interviews” under the Florida law would violate HIPAA and granted an injunction prohibiting them from taking place. Although these “interviews” were supposed to be general in nature and not about the patient’s medical condition, the judge said the law was written too broadly, and plus there would be nobody there to monitor what was discussed on behalf of the patient. The Florida Medical Association thinks that the legislature was aware of HIPAA privacy protections when the law was drafted and crafted the law in a way that avoids HIPAA problems, so this case is likely to be appealed. A similar law passed in Georgia in 2005 was nullified by the Georgia Supreme Court in 2007, also on grounds that the state law was preempted by HIPAA.

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Change in California Medical Malpractice Damages Caps Would Exceed Florida

California Medical MalpracticeIf a petition currently being circulated in the Golden State is eventually successful, California medical malpractice damage caps may soon be adjusted for inflation, something that has never been done since the caps were first enacted in 1975. The move would surpass Florida’s caps, leaving the Sunshine State trapped in the past with a cap on compensation for victims of medical negligence that is worth less and less every year.

If the consumer group Consumer Watchdog California can gather enough signatures on its petition, it will be able to get an initiative on the ballot at the next general election to increase the cap on noneconomic damages in medical malpractice cases from $250,000 to over $1,000,000. According to the Consumer Price Index Inflation Calculator, the $250,000 put in place by the Medical Injury Compensation Reform Act in 1975 is only worth around $57,000 today.

Florida law limits noneconomic damages in medical malpractice cases to $500,000, although a jury may award up to one million dollars in limited circumstances, such as if the malpractice results in a permanent vegetative state or death, or if it would be manifestly unjust not to increase the award for a catastrophic injury that caused particularly severe harm. “Noneconomic damages” are defined under Florida law as nonfinancial losses such as pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other non financial losses.

The Law Team at Fetterman & Associates strives to obtain the maximum compensation available that fairly compensates an injured person for both economic and non economic damages caused by the medical malpractice of a doctor, hospital or other health care provider.

If you have been injured by the medical negligence or incompetence of a Florida health care professional, contact Fetterman & Associates to speak with an experienced personal injury lawyer at our offices in North Palm Beach and Port St. Lucie.

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Should AEG be held liable for Michael Jackson’s death?

Music legend Michael Jackson died on June 25th, 2009 from a heart attack attributed to a combination of drugs prescribed by his personal physician, Dr. Conrad Murray. Jackson at the time was in the rehearsal stage for an upcoming comeback tour sponsored by entertainment giant AEG.

Michael Jackson’s death?

Dr. Murray was found guilty of involuntary manslaughter in 2011 and sentenced to four years in prison. In a trial that began April 29th, 2013, Jackson’s mother and three children are suing AEG for more than a billion dollars in a wrongful death lawsuit claiming AEG negligently hired and negligently supervised Dr. Murray.

The Arguments for AEG Liability

The plaintiffs may argue that AEG pushed Jackson to conform to a schedule that he was not physically fit for and likewise pressured Dr. Murray to do whatever it took to get Jackson on stage, without due regard for his health and well-being. They will argue that AEG was guilty of negligent hiring in selecting Dr. Murray, who apparently was deeply in debt and therefore may have had ethical dilemmas regarding the care and treatment of his patient. The plaintiffs may also claim that AEG is liable for negligent supervision. Emails which have surfaced suggest that the show’s director was concerned about Jackson’s health and health care when Dr. Murray kept Jackson away from a rehearsal. The director made his concern known to an AEG executive, who responded by warning the director not to become an amateur physician. The executive said he had immense respect for Dr. Murray, and that he “is extremely successful (we checked everyone out) and does not need this gig, so he totally unbiased and ethical.”

Defense will say Murray was hired by Jackson, not AEG

The defense is likely to counter that Murray was not employed by AEG but instead was hired by Jackson himself as his personal physician. Although Dr. Murray’s $150,000 (per month!) salary was to be paid by AEG, the defense characterizes this arrangement as an advance payment to Jackson. Rather than focusing on Murray’s debt, the defense wants to shine the spotlight on Jackson’s own financial troubles, suggesting that Jackson was aggressively pursuing the comeback tour and pushing himself beyond his limits, in opposition to the plaintiff’s picture of AEG aggressively pursuing Jackson and pushing him to perform. At Fetterman & Associates, our attorneys recognize the importance of identifying all the parties who may be legally responsible for causing a personal injury or wrongful death. We understand the various legal theories which may be applicable in any particular situation and what it takes to prepare and present a persuasive case to judge or jury. In Palm Beach and Port St. Lucie, contact Fetterman & Associates for a free consultation with an experienced and successful personal injury lawyer.

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Choosing a Rehabilitation Hospital for Your Spinal Cord Injury

A spinal cord injury causing paraplegia, quadriplegia, or other sensory or motor impairment, can result from a serious personal injury in a car or truck accident, motorcycle, bicycle or pedestrian accident, or other catastrophic injury brought about by the negligence or misconduct of another. These types of injuries to the central nervous system can create life-long disabilities and challenges to the accident victim.

Spinal Cord Injury

Whether and to what extent the afflicted individual will be able to return to work or even manage his or her own daily care depends primarily on the level of injury suffered. Another essential factor, however, is the quality of care the individual receives following the injury; the right type of treatment and rehabilitation in the days and months following the injury can make all the difference in the patient’s future.

Choosing a Rehabilitation Hospital for Your Florida Spinal Cord Injury

The right facility may not be nearby, and a lot of research may need to be done to find the best facility for your needs. You can start by considering the options presented to you by your current health care provider, but you may also want to do some investigation of your own. Consider the following criteria/characteristics in choosing the right rehab facility for your injury and future needs:

  • Facility regularly treats patients with the same type/level of spinal cord injury that you have
  • Facility employs the type of health care professionals for your particular needs, such as physical therapists, occupational therapists, social workers, psychologists, neurologists, physiatrists, and as speech-language pathologists
  • Facility is accredited in the specialty area related to your need (if applicable)
  • Medical staff are experienced and have an established history at the facility
  • Nursing staff maintain a reasonable caseload so they can provide quality care
  • Number of patients being treated at facility is within hospital’s capabilities to provide quality care to each patient
  • Know the qualifications and experience of the doctor who will be treating you as your primary physician
  • The facility provides programs and services to patients’ families, including low-cost housing and transportation if necessary, and access to nearby dining, lodging, and shopping opportunities.

Choosing an Attorney for Your Florida Spinal Cord Injury

Just as choosing the right hospital is essential to your rehabilitation, choosing the right attorney is critical to recovering the compensation you need and deserve for your spinal cord injury. If you have suffered a spinal cord injury or other serious personal injury in an automobile accident or other type of accident in south Florida, contact Fetterman & Associates at our West Palm Beach or Port St. Lucie offices.

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