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Form Over Substance Denies Justice

12/5/2011
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BY

Florida medical malpractice statutes are a great deal about procedure and less about substance.

As in many states, Florida citizens have suffered the removal of legal rights under Florida’s medical malpractice laws by legislators with specific agendas other than the improvement of citizens’ lives. More often, business and insurance lobbies push for legislation to improve their own financial bottom lines.

In Florida, we have “pre-suit screening procedures” for any medical negligence case before a lawsuit may be filed. These procedures require things like an expert affidavit attesting to the negligence and a 90 day investigation period by all parties. The notion of these things appears to be of value on paper, but in practice – not so much.

The expert affidavit is actually a good idea. Why not require the plaintiff to prove, at least initially, that a good faith basis for a lawsuit exists?

The 90 day pre-suit investigation period would also be a good idea, except for a couple of factors.

Whether it makes any sense or not, medical malpractice insurance companies almost never have any interest in settling a case in the early stages. They want to do a couple of things before they even consider a settlement. First, they want to hold onto their money as long as possible so they can continue to earn investments. Second, they want to see if they can wear down the plaintiff or the plaintiff’s lawyer by spending the plaintiff attorney’s money to litigate the case.

For these and other reasons, for the plaintiff and his lawyer, the 90 day period is filled with a great deal of accumulating documents and responses to questions directed from the insurance company for the physician or hospital. There is almost never any real inquiry of significant substance or discussion of settlement, but mostly an “exercise in exercising” the plaintiff.

I provide this backdrop simply to emphasize the disappointment of a recent case dismissal that was affirmed by the Court of Appeals. The case was filed by another law firm and involved egregious medical malpractice. The basic facts are:

  • A man is taken to the emergency room of a local hospital with symptoms of abdominal pain, nausea and vomiting blood.
  • The man is found to have elevated blood sugar levels and is in the process of diabetic ketoacidosis.

This is an emergency situation. In fact, from a medical perspective, it should be a four alarm fire. Once the diagnosis of diabetic ketoacidosis was made, the hospital emergency physician knew this man would die without timely treatment by a gastroenterologist.

The decision from the appellate court sets forth that: “Every off-site doctor that [the hospital] contacted refused to come to the hospital to treat” this man. The involved hospital eventually transferred the patient to a hospital in Broward County for treatment, but he died soon after arrival.

The estate for the deceased filed its complaint and apparently alleged that the hospital had violated its duty to provide care and treatment of patients such as the deceased and that care necessarily required providing physicians competent to treat various conditions. So, according to the appellate decision, the plaintiff sued, at least in part, for failures in corporate planning – the failure to provide a framework for properly treating patients. The plaintiff was, in other words, saying that the hospital’s failure, which caused the man’s death, was not medical malpractice, but was corporate negligence. As a result, the plaintiff did not undertake to comply with the pre-suit requirements discussed above.

The appellate court dismissed the lawsuit and set forth that the hospital’s failure did, in fact, constitute medical negligence and the plaintiff’s failure to comply with the pre-suit procedures under the Florida Medical Malpractice statute was fatal to their lawsuit.

So, for largely procedural, administrative, reasons, the death of this young man will go unpunished. No one will be held to account for the gross, reckless conduct of the hospital and its physicians. The family of this poor gentleman will never receive any justice for the callous refusal of the physicians and outrageous failure of the hospital.

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