Orlando Injury Lawyer Blog

As Orlando medical malpractice lawyers, we find the recent medical malpractice trial of a woman who lost her fingers and feet after complications of tummy tuck surgery both encouraging and disappointing. Through their $30-million verdict, this medical malpractice jury held both the admitting hospital and doctors liable for the injury and loss. That is encouraging, but due to Florida’s "Good Samaritan" law the matter is not yet resolved. Indeed, it appears that one doctor who participated in this medical nightmare may well escape the jurors’ judgment. That is the disappointing aspect of this medical malpractice lawsuit.

In the continuing fight to avoid liability for medical malpractice, insurers, hospitals and doctors have been successful in passing legislation that protects emergency room doctors from malpractice awards as long as a jury finds they did not act recklessly. So, a victim can no longer hold an emergency doctor responsible for serious injury or death caused by carelessness and unreasonable conduct during an “emergency” visit.

In this case, while finding fault, jurors determined that one of the two doctors did not act with reckless disregard. Under the Good Samaritan law that may well permit that doctor to escape responsibility for his actions.

Another aspect of this case worth noting involves the time of the medical malpractice. As we have discussed in a previous post, medical malpractice appears to occur more on weekends. In this case, the plaintiff’s troubles culminated on Super Bowl Sunday 2001 when an ambulance carried her to Memorial Hospital in Tampa. She had undergone a tummy tuck 20 days earlier to repair abdominal muscle damage from three caesarean sections. Blood and fluid had collected in her wound. Her fingers were blue. Her surgeon was out of town and another doctor provided her care. Of course, this set the stage for the tragedy that eventually occurred.

As Orlando injury lawyers handling drug product liability claims, the Food and Drug Administration’s handling of the drug Avandia is disturbing. According to Senate investigations, the Food and Drug Administration's safety staff concluded that the prescribing information for the drug should have included the most serious warning. Yet the FDA mandated no such warning.

It has come to light that FDA staff found that the risk of congestive heart failure, a condition in which the heart can't pump enough blood through the body, demanded a black box warning, the most serious type of alert. However, without satisfactory explanation, the FDA did not follow staff recommendations and instead, inserted the warning about congestive heart failure risks with Avandia on line 351 of the label. Essentially, this serious risk was buried.

Why did GlaxoSmithKline Plc's diabetes drug not carry the strongest possible warning about congestive heart failure? Interestingly, after an analysis by the New England Journal of Medicine found patients on Avandia to be 43 percent more likely to have a heart attack, lawmakers began raising questions about the FDA's handling of Avandia. The risk of the drug causing congestive heart failure is another concern over this federal agency’s handling of this diabetes drug.

While the FDA is still reviewing data on Avandia's heart-attack risks, it is interesting to note that Avandia was approved in the U.S. in 1999, and is the world's top-selling diabetes pill and had $3 billion in sales last year. Perhaps the need to get important drugs to market should be better balanced with the need to ensure proper warnings accompany them.

The U.S. Supreme Court on Monday ordered reconsideration of a $55 million punitive damage award assessed against Ford Motor Co. for an Explorer sport-utility vehicle rollover accident that left a California woman paralyzed. As Orlando injury lawyers handling product liability claims this case is one we are keeping an eye on.

The justices ruled that the California appeals court should take another look at the case in light of its February 20, 2007 ruling that set aside an award to a smoker suing Altria Group Inc.'s Philip Morris USA unit. In that case, the U.S. Supreme Court held that jurors can not punish defendants for injuries to people who are not involved in the case that they are considering.

In the Ford Motor case, the jury's $368 million award to Benetta Buell-Wilson and her husband was the largest ever assessed against Ford. Of course, courts have already reduced that figure to $82.6 million, including the punitive award and $27.6 million in compensatory damages, plus interest. Ford Motor in its appeal argued to the justices that the plaintiffs devoted much of their case to urging the jury to punish for allegedly killing or injuring third parties not before the court who were driving a different vehicle, the BroncoII.

In response, counsel for the plaintiffs argued that evidence about the Bronco II was used for the permissible purpose of showing that Ford was aware of instability problems in its SUVs when it put the Explorer on the market. Whether the case was so infected with improper and irrelevant evidence that a new trial is warranted as Ford hopes is yet unknown.

The subject of improper solicitation by injury lawyers has received infrequent attention over the years. Counsel’s obligation to ethically fulfill his or her obligation to clients includes the duty not to improperly solicit clients in the first place. While not pleasing to some injury lawyers, the rules are meant to uphold both the dignity of our profession and an individual’s right to be free from undue influence in the selection of legal representation..

The National Law Journal reports that a federal judge has blasted plaintiffs and counsel, breaking with the long-standing reticence of judges to reject class certification based on allegedly improper solicitation of clients. U.S. District Judge Marilyn Hall Patel in San Francisco rejected class certification and castigated the plaintiffs' lawyer for what she called unethical conduct in allegedly manufacturing a case, then finding a plaintiff in a suit against Oreck Direct LLC, a maker of air purifiers.

Although only a handful of judges around the country in the last few years have accused lawyers of crossing the ethical line, observers in the defense bar hope Patel's order kicks off a trend. Some suggest it is the movement of consumer class cases out of state courts and into federal courts, under the Class Action Fairness Act of 2005 that is bringing added judicial scrutiny to counsel’s conduct. Whatever the reason that this conduct is coming to light; improper solicitation should not be tolerated.

As Orlando injury lawyers handling food poisoning and food contamination cases, we are keeping an eye on food safety legislation. Spurred by deadly outbreaks of E. coli and other food-borne pathogens, a group of U.S. lawmakers is pushing to put all food safety oversight under a single federal agency.

The Food Safety Act of 2007 would create a Food Safety Administration responsible for ensuring the security of the food supply from all forms of contamination. The proposed legislation comes on the heels of a number of widespread outbreaks of food-borne illness.
An E. coli outbreak in spinach last year killed three people and sickened more than 200. The FDA has confirmed 22 outbreaks of E. coli O157 linked to fresh leafy greens (20 lettuce, 2 spinach) since 1995. Half of those were linked to bagged salads. Further fueling public concern, more than 400 people fell ill between last fall and this spring after eating peanut butter contaminated by salmonella spread by a sprinkler system.

In March, growing reports of sick and dying cats and dogs led to a recall of pet food whose maker had used melamine-laced food additives from China. Chickens and hogs that had consumed pet food remnants were withheld from slaughter for a time out of concerns about human melamine consumption.

Currently, 12 federal agencies and 35 laws govern food safety, often with overlapping jurisdictions and different priorities. The U.S. Department of Agriculture and the U.S. Food and Drug Administration play the biggest roles in making sure the food Americans eat is safe. The USDA oversees meat and poultry, while the FDA is responsible for eggs and produce. The lines are not always clear-cut. For example, cheese pizzas fall under the FDA, while pepperoni pizzas fall under the Department of Agriculture.

In January, the Government Accountability Office added federal oversight of food safety to its list of high risk programs in need of reform. The GAO urged Congress to consider change before public health and safety is seriously compromised. Further, recurring outbreaks linked to produce prompted a number of congressional hearings on food safety in recent months, but even the biggest proponents of overhauling government oversight of the food supply are not predicting passage of the Safe Food Act this year. As with anything in Washington, things take time. For now, we are encouraged by the focus on prevention of food poisoning and food contamination by improving the oversight of food safety by the federal government.

As Orlando Medical Malpractice lawyers we relish a recent victory for all Florida medical malpractice plaintiffs. The Florida Supreme Court unanimously ruled that in response to discovery requests in medical malpractice cases, hospitals must turn over lists of hospital privileges granted to physicians by the facilities' credentials committees.

Handling medical malpractice cases throughout Florida, we have found that hospitals traditionally assert that revealing what privileges were granted to a physician at any given time would compromise the confidentiality of the physician peer-review process, which is protected by state law. The court’s decision respected the confidentiality of the peer-review committee process while still permitting medical malpractice plaintiffs to be able to obtain a list of privileges granted to a doctor through hospital records, which are not privileged under state law.

"We find nothing in the statutory scheme protecting the internal activities of a peer-review committee and its records that would exempt a hospital from disclosure of its decision to grant or deny certain practice privileges to a physician," the court said in Brandon Regional Hospital vs. Maria Murray et al. "Similarly, while the statutory scheme grants explicit protection to peer-review committee records, there is no such statutory protection extended to separate hospital records that may contain information provided by or partially based upon peer-review committee action."

In 2004, Florida voters approved a constitutional amendment requiring hospitals and other medical providers to provide public access to records of adverse medical incidents. The amendment made it substantially easier for patients to obtain documents that were a part of the peer-review process. Various rulings around the state have disagreed on whether the amendment applies retroactively and the state Supreme Court has agreed to decide the issue. But Amendment 7 did not figure into this ruling because it was not raised as an issue. And the Supreme Court's opinion made it clear that even without the amendment a list of privileges that are granted to a physician must be turned over by the hospital upon a discovery request.

Of course this decision gives teeth to those medical malpractice claims that a doctor was not properly credentialed to perform the procedure that causes injury or death. Now during discovery a proper request for a list of privileges that the defendant doctor was granted at a hospital will provide what can amount to crucial evidence. This Florida Supreme Court has made clear that the findings, recommendations, evaluations, opinions, or other actions of a peer-review committee are confidential, but a list of hospital privileges granted to a doctor is not.

In recent posts I discussed the importance of failure to warn claims in drug product liability lawsuits. As Orlando injury lawyers we reviewed the value of maintaining these state law claims and fending off federal preemption defenses in pharmaceutical injury claims. Now the U.S. Senate has made clear that the authority of the Food and Drug Administration to regulate drug approval and labeling should not be interpreted as altering existing state law.

In re-authorizing the Prescription Drug User Fee Act, the Senate included major new initiatives to enhance the FDA's authority to police drug safety. All the while no language was included which can bolster the pharmaceutical industry’s preemption argument. Indeed, as the American Association for Justice points out, during debate on the bill Senator Kennedy, the chief sponsor of the bill, emphasized that he wanted that clearly understood. As he stated on the floor of the Senate:

"We do not intend to alter existing State law duties imposed on the holder of an approved drug application to obtain and disclose information regarding drug safety hazards either before or after the drug receives FDA approval or labeling. Nor are we expressing a belief that the regulatory scheme embodied in the bill is comprehensive enough to preempt the field or every aspect of State law. FDA's approved label has always been understood to be the minimum requirement necessary for approval. In providing the FDA with new tools and enhanced authority to determine drug safety, we do not intend to convert this minimum requirement into a maximum...Nor are the bill's requirements that holders disclose certain safety information to the Government intended to substitute for the disclosure requirements that may be required under State law".

Of course, there is a long way to go before we learn what the final version of the legislation will look like. The House is not expected to consider its own version of the drug bill until later this summer. Certainly, the pharmaceutical industry will seek to favorably influence this process. We will keep an eye on this important legislation.

The U.S. Consumer Product Safety Division issued a recall of a children's toy known as Magnetix Magnetic Building sets manufactured by Mega Brands America, Inc. In excess of 4 million sets are involved.

The CPSC has conducted five recalls with more than eight million products containing magnets that could come loose and fall out of the product. As Orlando injury lawyers we recognize that these types of products cause significant risk to young children. If two or more magnets are swallowed, they can attract to one another through intestinal walls. When this happens, the magnets can become trapped in the body and require immediate medical treatment, as well as cause significant personal injury.

To date, CPSC and Mega Brands are aware of one death, one aspiration and 27 intestinal injuries. Emergency surgical intervention was needed in all but one case. At least 1,500 incidents of magnets separating from the building pieces have been reported. Although the hazard was initially thought to be a problem primarily for children younger than six, it has since been learned that at least ten injuries involved children between the ages of 6 and 11 years old.

If a child swallows more than one tiny powerful magnet detached from the plastic building pieces or one such magnet and a metallic object, the objects can attract to each other inside the intestines and cause perforations and/or blockage, which can be fatal, if not treated immediately. The CPSC is urging consumers to immediately report any incidents of loose magnets to the CPSC Hotline at (800) 638-2772 or to the CPSC web site.

While we face great bias in favor of doctors and hospitals in our medical malpractice trials, a recent study may help to get the word out that overcrowded hospitals trying to streamline care and cut costs put their patients at risk every day. A study by two Boston hospitals finds preventable mistakes including medication errors, nerve injuries and infections.

The study, published in the May issue of the journal Medical Care, found that the top goals of hospitals, (1) to cut costs and (2) improve patient safety are inconsistent and work against each other. What is amazing to me is that it actually took a study by health care providers to determine that you can not focus on saving money without sacrificing patient care and safety. As this study points out when hospitals cut costs it usually decreases staffing. Specifically, the study found a 10 percent increase in the patient-to-nurse ratio at one of the four hospitals which led to a 28 percent increase in adverse events.

Researchers at Brigham and Women’s and Massachusetts General Hospital reviewed 6,841 individual patient records over 12 months from a number of hospitals and found 1,530 adverse events. Obviously this study demonstrates that hospitals are big business, with a focus on the bottom line rather than on patient care.

While this study alone will not counteract the bias that we will face when we select our next medical malpractice jury, this study and similar information may begin to help educate a future jurors. Certainly, throughout our trials, we focus our juries attention on the choices of the defendant health care providers which reflect haste, inattention and carelessness as a result of inadequate staffing or other cost-saving measures.

As Orlando injury lawyers we are pleased with a recent survey of Florida cases and verdicts. Notwithstanding the insurance industry’s heavy propaganda campaign, Florida juries are finding legitimacy in more than sixty percent of claims tried to verdict. Florida injury lawyers should feel encouraged by this survey.

While injury lawyers will always struggle to obtain a fair and impartial jury, this survey provides positive news for Florida injury lawyers on both a local and national level. According to Jury Verdict Research, the Florida Verdict Survey found the likelihood of receiving a plaintiff verdict in Florida 8 percent greater than the national rate. The plaintiff’s probability of recovery, which means the number of plaintiff verdicts to total verdicts in the study, is 61 percent compared to a 53 percent national recovery probability. In addition, Florida plaintiffs also receive awards that are larger than the national award median.

This good news supports our work as injury lawyers and provides a bit of a wake-up call for liability insurers. We certainly believe that jurors try to rise above the propaganda and usually do. In Florida and elsewhere, injury lawyers must continue to fight for the rights of those who suffer needless injury and harm. The benefits reach not only our injury clients but also our communities.

As we know the Florida Legislature adjourned its recent session without completing many important tasks. As Orlando injury lawyers, we believe one of the most critical omissions may be the failure to extend personal injury protection laws beyond October, 2007. While the Florida Senate passed an appropriate, clean PIP bill, the Florida House failed to consider it.

So what does this all mean? For innocent injury victims here in Orlando and throughout the state, It means more litigation and a greater burden on those without health insurance. For our hospitals, it means providing emergency care and treatment to those who have no means of paying for it. Indeed, the primary opponent of extending our No-Fault law is the insurance industry. Car insurers do not like a system which requires them to pay for reasonable and necessary medical treatment, with penalties, if they fail to do so timely. Of course, that’s no surprise from Big Insurance.

While the Governor may bring this important legislation up in a special session this summer, there are no definite plans to do so. Certainly, we hope Governor Crist will consider the needs of innocent injury victims, our hospitals and our courts and address this issue before PIP sunsets this fall. Obviously, the Florida Hospital Association will be pushing for the PIP issue to be added to the agenda of the special legislative session scheduled for mid-June. Florida hospitals claim they stand to lose $350 million in reimbursement for treating auto accident victims in emergency rooms and trauma centers without PIP.