Archive for the ‘Medical Negligence’ Category

What Makes a “Medical Expert” for Pre-Suit Under Florida’s Chapter 766?

Wednesday, March 17th, 2010

In Florida, a medical malpractice plaintiff is required to undertake a good faith investigation of the potential claim and obtain a written opinion from a medical expert before filing suit against a health care provider.  The prospective parties are also required to go through a “pre-suit” discovery process according to Florida Statutes, Chapter 766.

The requirements as to who could sign the corroborating affidavit was fairly loose until the statute was revised in 2003.  The case of Jeffrey A. Hunt, D.O., P.A. d/b/a The Vein Center of Tampa Bay v. Katrina Huppman clarifies the current post-2003 medical expert requirements (Second District: Silberman, Altenbernd, and Fulmer).

Referencing sections 766.203(2), 766.202(6), and 766.102(5), the court provides essentially a checklist of standards for who can sign a corroborating affidavit:

1.  Person duly/regularly engaged in practice of his or her profession;

2.  Person has degree in health care;

3.  Person is a licensed health care provider;

4.  Person satisfies the [case-specific] criteria in 766.102(5).

Hospital’s Charges for Perc Disc Procedures Are Discoverable

Thursday, March 11th, 2010

If you perform a Google search for “percutaneous disc decompression” you will obtain a list of care providers detailing their PDD services.

Add the word “fraud” to your search and, at the top of the Google results, will be articles (here and here) questioning these procedures and allegedly inflated costs — with reference to Palm Beach County practitioners.

Enter the Fourth District’s opinion this week in Columbia Hospital (Palm Beaches) Limited Partnership d/b/a Columbia Hospital v. Catherin Hasson, Mark Hasson and Hourhan Elsawy (per curiam).

A personal injury plaintiff claimed she suffered injuries and received medical treatment (including a “perc disc” procedure) at the hospital, for which she was billed $19,000.

Defendants sent a subpoena to the hospital for the plaintiff’s records as well as the amount the hospital has charged patients with and without insurance vs. those with letters of protection and for differences in billing for litigation vs. non-litigation patients.  The Defendants’ purpose was to determine the reasonableness of the charges.  The hospital claimed a trade secret sought a protective order.

The court held that the defendants were entitled to discover whether non-litigation patients were charged a lower fee for the same procedure.  However, the trial court was instructed to take protective steps under F.S. 90.506 to ensure the trade secret(s) were protected with a confidentiality order or agreement.

Taken differently, the opinion sets out steps to obtain this kind of information:

1.  Determine if it is a trade secret via in camera inspection.

2.  Pursue hearing on compulsion to produce and/or produce in camera.

3.  Follow F.S. 90.506 regarding confidential production, if ordered.

First Case on 2003 Amendment to Medical Negligence Statute Turns into Battle Over Judicial Use of Internet

Thursday, October 1st, 2009

The dispute over who can serve as an expert under the 2003 version of Chapter 766 pre-suit requirements is, by itself, an opinion which covers new ground in Florida law.

While Florida court watchers have experienced an overdose of Amendment 7 opinions, we can’t think of any opinions which have significantly interpreted Chapter 766 (Florida’s medical malpractice statute) since it was amended in 2003.  Then, in the heat of appellate battle, the issue arises about the appropriateness of appellate judges citing internet sources in opinions.

Since, on this site, we embrace medical cases and internet issues, this case is right up our alley.  Will this 15-page opinion in Keith Robinson Oken v. Mayo Clinic of Florida get traction to travel to the Florida Supreme Court?

First, let’s dig into the pre-suit issue.  Prior to 2003, a pre-suit expert who signs the required corroborating medical affidavit must have “training, experience and knowledge” similar to the prospective defendant doctor.  Since 2003, Florida Statute 766.102(5) requires the expert to specialize in the same or similar specialty that includes the evaluation, diagnosis or treatment of the medical condition at issue.

Notably, “similar specialty” in the current statute is not defined nor interpreted.  Here, the defendant doctor is a board certified cardiologist.  The plaintiff had used a family/ER doctor (who proclaimed experience in evaluating, diagnosising and treating heart attacks) as an expert.  The defendant moved for dismissal under F.S. 766.202(6), claiming the standards for the expert had not been met.

The majority held that it was the claimant’s (plaintiff’s) burden to demonstrate by facts, not conclusions in the expert affidavit, that the expert met the statutory requirements.  In short, statements such as “expert’s practice is a similar specialty” apparently is insufficient.  After some discussion and reference to internet medical citations, the majority held that family/ER practice is not the same or sufficiently similar to a board certified cardiologist and that public policy behind the 2003 amendment were not met.

Second, let’s turn to the internet citations.  The majority turned to the internet for citations to the American Board of Family Medicine, American Board of Internal Medicine, and the American Board of Emergency Medicine for its discussion of whether the expert was a “similar specialty.”

Upon being challenged for use of these citations by the dissent, the majority shored up its position by reporting that (1) these cites were raised without objection in the Reply Brief and (2) the use of “generally-known knowledge” which is capable of accurate and ready determination from sources whose accuracy cannot be reasonably questioned does not present concerns.

The dissent complained that the majority reliance on internet cites for the recitation of certification criteria for cardiology  was never presented below and was “injected at the appellate level.”  Interesting references were made to the proposed revision to the ABA Model Code of Conduct 2.09 which prohibits a judge from making independent investigation through various means including “electronic access.”  The dissent further complains that there is no “check” on proficiency and objectivity of the judge’s or JA’s research.  The majority fired back, in a footnote, that even without the citations, the outcome would be the same.

tPA “Clot Busting” Verdict Reversed Due to Low Statistical Success of the Drug

Monday, September 28th, 2009

A small wave of cases has arisen since the development of tPA, a “clot busting” anti-stroke medication which must be given in the ER under strict medical pathways where the patient has no history of subdural hematomas and the onset of the stroke was within three – six hours (depending on whether it is given intravenously or intra-arterially).

These cases are attractive to plaintiffs’ lawyers because the damages are typically high (the plaintiff is either a stroke victim or dead).  However, defense counsel are often emboldened since the liability standards are increased since ER doctors have a higher threshold of liability (recklessness) under Florida Statute 768.13(2)(b)(1).

In St. Joseph’s Hospital v. William and Martha Cox and Eric Castellucci, M.D. and Emergency Medical Associates of Florida, LLC v. William and Martha Cox, the Second District reversed a verdict of “substantial damages” finding lack of causation.  Thus, the plaintiff lawyer at trial had convinced a jury of the higher liability standard (reckless, rather than simple negligence) but the expert faltered on causation.

tPA achieved medical recognition after a December 14, 1995 New England Journal of Medicine report on the National Institute of Neurological Disorders and Stroke Recombinant Tissue Plasminogen Activator Stroke Study Group (NINDS study) results were published.  In the study, however, 20% of patients recovered from strokes on their own and the timely administration of tPA only increased recovery by 11%.  Thus, the study found patients who received tPA stood a 31% chance of a successful outcome.

In the Cox case, plaintiff’s expert Dr. Eddy Futtrell testified that she disregarded the plaintiff’s past history of a subdural hematoma (for case-specific reasons) and she subscribed to the NINDS study result.  Defendants’ expert, of course, felt the plaintiff’s history of a subdural hematoma was a contraindicator.

The Panel (Northcutt, Kelly, and Dakan) concluded that Florida follows the “more likely than not” standard of causation which amounts to requiring facts which support a 51% or better probability.  If the causation evidence is pure speculation or conjecture, or if the probabilities are even, a directed verdict is required.

Here, since the plaintiff’s expert agreed with the NINDS study that only 31% of patients who received tPA would recover successfully, that did not meet the causation threshold.

Thus, practitioners want to look for medical testimony or evidence which establishes that 51% probability.  Plaintiff needed an expert who either distinguished the patient from the study population OR advanced a better statistical outcome based upon the expert’s experience.

Fourth DCA Rules (Again) on Amendment 7 (work product and charges for copies)

Thursday, September 17th, 2009
If ever there was a reason to drag out the 19th century expression, “beating a dead horse,” it has to be in relation to the ongoing dispute over Florida’s Amendment 7 passed in 2004.
While we expect no dramatic change in the very broad state constitutional amendment regarding patient’s access to previously-protected adverse incident documents, we see no end in sight to the appeals slowly narrowing issues, few of which are getting resolved in favor of health care providers (although the appellant in this case may fairly claim at least a partial victory).
The Fourth District issued a revised opinion on August 19, 2009
in Columbia Hospital Corporation of South Broward d/b/a West Side Regional Medical Center v. Rebecca Fain.  Rather than going through the long and winding road of Amendment 7 cannon, here are the salient points:
* No ruling on work product or attorney client privilege issues; court stated, however, that the Florida Supreme Court’s 2004 advisory opinion did not indicate that the privilege trumps an Amendment 7 request;
* Court intimated that “a distinction may need to be drawn between fact work product and opinion work product.”  This may be a vague reference to Fifth DCA’s Florida Eye Clinic v. Gmech or the Second DCA’s Lakeland Regional Medical Center v. Neely;
* Standard discovery objections do not apply to

an Amendment 7 request (overbroad, irrelevent, burdensome);
* Under F.S. 381.028, the health care provider is entitled to reasonable payment — trial court judges may (wisely) take a cue from this case and take the issue of costs under advisement;
* Federal Supremacy Clause and Health Care Quality Improvement Act (HCQIA) do not preempt Amendment 7;
* Article I, Section 10 of the federal Constitution (impairment of contracts) is not violated by Amendment 7.

Amendment 7 Trumps Work Product In Tug-of-War Over Medical Incident Reports

Tuesday, May 12th, 2009

Before the November 2004 elections, there was a battle between plaintiff lawyers groups and physician groups — each side seeking to convince the voting public to tack on amendments to the state constitution which would sting the other side.  The plaintiff lawyers won and “Amendment 7″ (access to adverse medical incident reports) became Article X, section 25 of the Florida Constitution.

The plaintiff lawyers again struck gold with the 2008 Florida Supreme Court decision in Florida Hospital Waterman, Inc. v. Buster, which essentially upheld a broad interpretation of Amendment 7 to allow plaintiffs access to gobs of previously privileged documents in the health care field.

Prior to Buster, plaintiff and defense counsel were making a fortune developing keen arguments in trial and appellate courts across the state trying to etch some new area of discovery.  After Buster, things began to grow fairly quiet.

The only health care related group to win an Amendment 7 battle were nursing homes and ALFs, which were deemed not to be health care providers — consistent with a prior battle over pre-suit requirements when plaintiff lawyers were arguing that they did not have to comply with Medical Negligence Chapter 766 requirements in long term care cases.

On May 8, the Second District (Altenbernd, Casanueva, and Silberman) handed down a decision in Lakeland Regional Medical Center v. Neely which re-affirmed Buster and confirmed, at least in one intermediate appellate court, that the work product doctrine was trumped by Amendment 7 and Buster.

The Court reasoned it was “constrained” by Buster and posed a question to the Florida Supreme Court as a matter of great public importance.  Our guess: it is unlikely the Court will take it and, if they do, look for the “final word” confirming the viability and breadth of Amendment 7 OR… an unexpected change of course.

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