Orlando Injury Lawyer Blog

The Florida Bar is cracking down on scores of personal injury lawyers who have benefited from the 1-800-ASK-GARY referral service. The investigation appears to be an indictment of the Ask Gary advertising style, which is heavy on personal testimonials from accident victims who call the toll-free hot line for help.

The Florida Bar prohibits such testimonials and dramatizations in ads by lawyers and legal referral services. Even receiving a client from such an ad is a violation. The Ask Gary ads are produced by Physicians Group LLC, which is a chain of accident clinics based in Sarasota.

Late last year, the Bar sent out more than 100 letters to personal injury lawyers across Florida who it thought got client referrals from Ask Gary operators. The Florida Bar has taken action against at least 34 lawyers across Florida that it found accepted referrals from Ask Gary, in violation of Bar rules.

The Bar is targeting the Ask Gary ads because their personal testimonies are emotional appeals, Marvin said. The Florida Bar believes consumers should choose a lawyer based on facts, not emotion, so it prohibits lawyers from creating such ads and prohibits them from getting referrals from services that use them. We absolutely agree and believe that outrageous lawyer advertising has made it difficult for consumers to choose the right lawyer and has cast our profession in a negative light.

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A medical malpractice jury in Broward County awarded more than $2 million to a woman who had been a ballerina for 15 years and had a bright future ahead of her. Unfortunately, this teenager Katie Shreffler began to suffer pain in her hip, and underwent surgery. Ten years later, this South Florida woman is still in pain, walks with a crutch and has needed more surgery to correct the damage from the original procedure, according to court records.

Interestingly, the surgeon has become a prominent and well-respected physician. Dr. Marc Philippon, according to his clinic's website, is ''one of the world's leading orthopaedic hip surgeons'' and a consultant to all the major U.S. professional sports leagues. He has treated pro golfers Greg Norman and Peter Jacobsen, hockey player Mario Lemieux, pro football player Priest Holmes, and baseball player Louis Castillo, according to that site.

So how did this medical malpractice occur? In medical malpractice surgical cases, the most effective claim is that the surgery which went awry, was unnecessary-that the standard of care was violated when the surgeon decided to perform the operation. In so doing, the usual defense to a surgical claim of medical malpractice-that the bad result was an unfortunate, unavoidable complication, can not be used. Obviously, if the surgery was unnecessary, then the doctor should never have subjected the patient to the risk of these complications.

That is how this claim was presented. The plaintiff’s attorneys argued that Dr. Philippon performed an unnecessary surgery. They said Shreffler was among the first patients Philippon ever performed the procedure on, and he used the teen for practice. Certainly, this presents a persuasive and compelling argument and undermines the typical defense tactics.

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Florida Hospital lawyers have urged the Florida Supreme Court to delay implementation of the state constitutional amendment that gives patients the "right to know'' about past mistakes made by doctors and medical facilities. These medical malpractice lawyers also asked the justices to reverse two separate appellate court rulings that struck down a law the Legislature passed to implement the amendment and limit the records of "adverse medical incidents'' that patients can obtain.

The amendment is one of two voters passed in 2004 after they had been placed on the ballot through citizen initiatives organized by trial lawyers who represent patients in medical malpractice cases. The other amendment bars doctors with three malpractice judgments against them from practicing.

The Florida Supreme Court is deciding these issues as a result of disagreement between appellate courts as to whether the amendment applies to past records or only those created since voters approved the measure in November 2004. The amendment itself does not specifically say if it's prospective or retroactive. If the amendment applies only to new records, those created after the 2004 election, that would result in a delay of many years before the measure gives patients any meaningful help in its intended purpose of letting them check on the past performance of doctors and hospitals.

Now that the Court has heard argument, we will await its decision. Hopefully, the true intent of the voters will prevail and healthcare consumers will soon be able to benefit from the availability of important information about their doctors and hospitals.

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In a drug product liability action against, Roche Holding, a jury found that the giant pharmaceutical maker failed to adequately warn a patient of the bowel disease risks associated with its acne medicine Accutane and awarded $2.5 million in damages. The jury, during its third day of deliberations, decided that the failure to warn was a major contributing cause of the plaintiff contracting the bowel disease and awarded an additional $119,000 to cover medical expenses.

The trial was the first of about 400 U.S. lawsuits involving Accutane, which has been on the market since 1982. Roche, which runs its U.S. operation out of Nutley, New Jersey, said it believes it has significant grounds to appeal the verdict and intends to pursue them. "Notwithstanding the verdict, the cause of inflammatory bowel disease remains unknown and there is no reliable scientific evidence that Accutane causes inflammatory bowel disease," the company said in a statement, adding that the medicine's label has contained a bowel disease warning for more than 20 years.

In considering New Jersey state consumer fraud charges, the jury in New Jersey Superior Court found for Roche, saying the company did not misrepresent or conceal Accutane's bowel risks prior to June 1995. The plaintiff, a 36-year-old computer manager from Alabama, had undergone multiple surgeries, including having his colon removed, after taking the drug in 1995. His reported symptoms included chronic diarrhea and incontinence.

Importantly, in this case, the jurors interviewed following the verdict said they believed Roche Holding should have done more testing of Accutane after it was on the market and before the plaintiff began using the drug. That bodes well for the other claims that are pending against this pharmaceutical company.

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As Orlando medical malpractice lawyers, we continue to hear medical malpractice insurers claim that there is a “medical malpractice crisis.” Of course, there is no basis or evidence to support these claims. A recent report by a former insurance commissioner bears this out. Former Missouri Insurance Commisioner Jay Angoff has reported that the nation’s 15 leading medical malpractice insurers have unnecessarily driven up health care costs by falsely claiming that a medical malpractice crisis exists and “price gouging” physicians.

These statistics undermine the insurance industry’s claim that medical malpractice lawyers and ever-increasing medical malpractice claims payments have been causing a crisis. Mr. Angoff noted that insurers’ net paid claims actually fell 14.7%, before accounting for inflation, to nearly $1.15 billion in 2006 from more than $1.34 billion in 2000. In addition, the insurers’ incurred losses fell 48% to $1.35 billion in 2006 from $2.6 billion in 2003, according to the report. Nine insurers in the group reported drops of more than 50% of incurred losses, and two reported reductions of more than 80%. Moreover, between 2003 and year-end 2006, the insurers’ surplus grew 43%, the report stated.

Of course, despite this economic success, medical malpractice insurers did not cut-back on premiums to doctors. Rather, medical malpractice premiums continued to rise sharply from 2000 through 2006. Insurers reported $2.38 billion of net written premiums in 2006, a 24% increase from $1.92 billion of net written premiums in 2000.

According to Jon Haber, chief executive officer for the AAJ, “Medical malpractice insurance companies have been price-gouging doctors, padding their pockets with excessive premiums and driving up the cost of health care.” “Cynically, these same insurance companies have been blaming high premiums on a so-called ‘malpractice crisis’ that doesn’t exist. We have an insurance crisis, not a medical malpractice crisis.”

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As Orlando medical malpractice lawyers we are disappointed with the Florida Supreme Court's ruling, holding that hospitals cannot be held liable in medical malpractice cases for failing to ensure doctors with staff privileges meet state financial responsibility requirements. The unanimous ruling disapproved of decisions by three district courts of appeal on that issue. In doing so, the Court adopted the position of the Fourth District Court of Appeal.

Previously, courts had interpreted the financial responsibility law to hold hospitals accountable for staff doctors who failed to obtain the necessary medical malpractice insurance or otherwise satisfy his or her minimum financial obligations. However, Justice Barbara Pariente writing for the Court held that the state law requiring doctors to establish financial responsibility as a condition of staff privileges does not create a duty on the part of the hospitals to enforce that mandate.

Instead, it's up to physicians to comply or else face sanctions including possible license revocation, she wrote. Also, insurance companies must notify the state if a doctor's policy is canceled or not renewed.

This is truly a sad day for Florida medical malpractice victims. As a practical matter if hospitals have no responsibility to ensure staff doctors comply with financial responsibility laws to obtain or keep staff privileges, there is no one looking out for hospital patients. This decision overturns the well-reasoned opinion of the Fifth District Court of Appeal that found the obvious intent of the Legislature to permit injured parties to collect at least $250,000 from hospitals that fail to enforce the requirement.

The case of Stuart and Lena Horowitz against Plantation General Hospital for medical malpractice included a $859,200 against Dr. Derek V. Jhagroo, failed attempts to collect that judgment because he left the United States, had no property here and no medical malpractice insurance. Without the ability to at least hold the hospital liable for the $250,000 minimum required to obtain or hold staff privileges, the plaintiffs will likely recover nothing for their losses.

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