Anesthesiologist Case May Lower Bar For Fla. Med Mal Suits

Law360 (February 13, 2018, 3:20 PM EST) — If the Florida Supreme Court revives claims against an anesthesiologist whose quick clearance for surgery of a woman allegedly contributed to her death, experts say it could make it easier for medical malpractice plaintiffs in the state to allege causation, or that a health care provider proximately caused a person’s injuries.
The state’s highest court agreed in January to rule on whether Dr. Arturo Lorenzo was properly cut loose from a suit accusing health care providers including Hialeah Hospital of negligent treatment that caused the death of patient Maria Elena Espinosa just prior to brain surgery. Lorenzo, an
anesthesiologist, is accused of improperly clearing the patient for surgery despite certain red flags, including an abnormal electrocardiogram and lab results.
The Third District Court of Appeal ruled 2-1 in August that the patient’s family failed to present evidence proving Lorenzo — who spent just three to five minutes conducting the initial portion of an anesthesia evaluation while the assigned anesthesiologist was running late to the surgery — played a causal role in Espinosa’s death, and issued a directed verdict in Lorenzo’s favor.
A well-respected judge, District Judge Kevin Emas, however, issued a lengthy dissent, arguing that the red flags were sufficient evidence to preclude a directed verdict.
At stake is Florida malpractice plaintiffs’ ability to assert claims against doctors who may have tangentially contributed to a patient’s injuries, so long as plaintiffs can prove they played some part, according to Andrew S. Bolin of Beytin McLaughlin McLaughlin O’Hara Bocchino & Bolin PA.
Bolin, a medical malpractice defense attorney, told Law360 that the current suit is a follow-on to Saunders v. Dickens, a 2014 Florida Supreme Court case that determined a subsequent treating physician’s negligence can’t insulate a prior physician’s alleged negligence.
Even though the subsequent treating physicians said they would have acted no differently despite a previous doctor’s alleged negligence, the Supreme Court concluded in Saunders that such evidence is inadmissible and irrelevant and shouldn’t be presented to a jury when determining causation.
The high court said the only issue was that, more likely than not, the defendant physician proximately caused the injury.
“When the Saunders case was handed down in 2014, it got a lot of attention from both the plaintiffs and defense bar — it was a case that certainly looked at causation in medical malpractice differently than anything we had seen in the past,” he said. “In the Ruiz case, the Florida Supreme Court is looking to revisit the Saunders decision to give further clarity on what they were communicating.”
The appeals court’s ruling in the instant case, Bolin said, determined that because Lorenzo only treated the patient for a brief period of time and early on, there was no competent evidence that subsequent physicians would have acted differently based upon the actions of Lorenzo.
“This is really a focus on causation and the way that causation is going to play a part in what the plaintiff has to prove,” he said.
Lani Dornfeld, a health law attorney with Brach Eichler LLC, said the case is difficult because there were multiple physicians responsible for Espinosa’s care and surgical procedures, and Lorenzo only served as a fill-in anesthesiologist for three to five minutes before handing off care to the other anesthesiologist.
“It would seem to be a logical conclusion that [he] is the anesthesiologist responsible, and not Dr. Lorenzo,” she said.
But the Florida Supreme Court is looking to make a distinction between simple cause-and-effect and causation, the latter which implies proximate cause and liability, according to medical malpractice defense attorney James J. Nosich of Nosich & Ganz Attorneys at Law.
“The plaintiffs are arguing ‘but for’ the anesthesiologist’s involvement or negligence, the patient would’ve never gotten into the operating room, so therefore anything that happened in the operating room is on the anesthesiologist,” he said, “While the defense is arguing more about proximate cause, or that there was nothing linked to [Lorenzo’s] alleged negligence.”
Nosich said he wouldn’t be surprised if the directed verdict is overturned, saying Judge Emas laid out a lengthy and logical dissenting opinion.
“You can certainly say that Emas took the time to really hash out his position. I thought it was lengthy and well-thought out; he went through testimony piece-by-piece,” said Nosich. “He’s a really smart judge, and he obviously feels strongly about it — it’s a well-written dissent.”
Personal injury plaintiffs attorney Jeffrey R. Davis said he, too, would not be surprised if the Florida Supreme Court revives the case and sends it back for a retrial on the issue of Lorenzo’s liability.
Davis said Judge Emas correctly states that the majority is looking at the evidence too narrowly and should have viewed the evidence in a light most favorable to the plaintiff.
“If you do that, there was enough evidence, [Emas] says. And by the way, the test is not what the judges think the outcome of the case should be — the judges are gatekeepers who have to decide whether there is a requisite offering of proof, not the weight of it — that’s the jury’s job,” he said.
“The [Court of Appeal] had this decision as a fait accompli and agreed with the trial court and crafted their opinion to support it.”
Given the current makeup of the Florida Supreme Court and its decisions in medical malpractice cases in recent years, Bolin said he believes there is a 60-40 chance that it revives the claims against Lorenzo.
“I think it is likely that we will see this decision overturned on the authority of the Saunders decision and perhaps even a greater highlighting of causation in that regard,” he said. “In my opinion, it would lower the bar significantly for causation and erode what has been the standard in Florida for a very long time. It would erode the basis for causation and the importance causation plays as an essential element in a medical malpractice case.”
Espinosa’s family is represented by Jorge P. Gutierrez Jr. of The Gutierrez Firm and Philip D. Parrish PA.
Lorenzo is represented by Jonathon P. Lynn of Chimpoulis Hunter & Lynn PA and Dinah Stein of Hicks Porter Ebenfeld & Stein PA.
The case is Ruiz v. Tenet Hialeah Healthsystem Inc. et al., case number SC17-1562, in the Supreme Court of Florida.
–Additional reporting by Carolina Bolado. Editing by Philip Shea and Kelly Duncan

Medical Records Rip Off

Until 1997, a monster of a “medical transcription” industry was developing right under the United States’ nose. A medical copy would cost one dollar per page to third parties that represented a patient- we’re talking lawyers, insurance companies, etc. These companies turned the copies for an incredible amount of profit until HIPAA regulations required doctors and medical establishments to transfer all paper records to a digital format.

Now, 21 years later, these companies are still charging an insane amount of money for a copy of a medical record. However, all it takes is a few clicks and a couple seconds to download these documents onto a USB. No paper, no ink.

Lawyers and insurance companies must pay thousands of dollars to a medical transcription company to have your records released to whomever you choose… in the age of technology! Companies like CIOX, that took over the medical transcription industry, are claiming that if third parties do not pay them for patient medical records, they acquire a “tremendous financial burden.”

This creates a large financial toll on the third party that needs access to those files. This means the cost of your representation can be directly affected. There has been a lawsuit filed in relation to this matter- let’s hope that we don’t continue to get ripped off by medical transcription companies.

IV Infiltration and Medical Malpractice

Often, patients are prescribed intravenous- or IV- therapy to have fluids administered into their veins through a small catheter needle. The needle is typically inserted in the arm or hand to deliver medications. Although it is normal procedure, it is not 100% safe or reliable.

Grave complications can result due to improper placement of the catheter. A condition known as IV infiltration is described as, “when medication or fluid is intravenously infused into the surrounding tissue,” can be one of the leading development of improper handling or monitoring of the IV by the medical staff.

Occasionally, the medication inserted intravenously becomes toxic as it leaks into the tissues surrounding the bloodstream. This may have adverse and irreversible effects to skin, fats, and muscles in the areas affected. Other examples of such effects are:

  • Harsh scarring where medication touched the skin
  • Irreversible nerve damage
  • Paralyzation of affected extremity
  • Skin ulcers
  • Burns

Everyone wants the medical professionals and organizations we trust our lives to, to be knowledgeable and skilled. Unfortunately, subpar services are an epidemic throughout our nation and the people that perform these actions can be held legally accountable for them.

Jeffrey R. Davis, P.A. Educates the Legal Community on Personal Injury Damages

Understanding what damages you can receive from a personal injury case is very important. That is why on December 13, 2013, Jeffrey R. Davis, P.A. took part in a Damages in Personal Injury seminar at the Hyatt Regency Miami. Jeffrey R. Davis was one of many speakers and the seminar. The seminar focused on educating others in the legal community and the public on how to negotiate and quantify potential damages in a personal injury case. The seminar provided a comprehensive view and explanation of damages in personal injury which benefited other attorneys, corporate counsel’s, claims representatives, and paralegals. It is important to understand one’s personal injury case in order to effectively quantify and negotiate damages, and learn to analyze and quantify the effect of an injury on the plaintiff’s current and future life to maximize or contest the recovery.

Mr. Davis focused on the plaintiff’s tactics in negotiating and litigating the damages in a personal injury case. Such tactics are:

  • Direct negotiations with insurance claims representatives
  • Law witnesses
  • Using expert reports and testimony
  • Use of demonstrative evidence
  • Key pleadings and motions
  • Hearsay
  • Wrongful death actions

Jeffrey R. Davis, P.A. evaluates every case individually. Because each case has different injuries, different damages, different circumstances, and different people, each case is given the attention that it deserves.  If you would like to meet with an a personal injury attorney and receive a free consultation regarding your Florida personal injury case, contact us at Jeffrey R. Davis, P.A., North Miami based attorneys, Jeff Davis and Olga Porven will work hard to try and obtain a fair value for your case.

Deep Vein Thrombosis Following Orthopedic Surgery

Deep Vein Thrombosis (DVT) is the formation of a blood clot in a deep vein, usually in the legs. These clots, also known as a thrombus, can detach and travel to the lungs, causing severe injury or death (pulmonary embolism).

Virchow’s Triad

Briefly, it is important to understand the process by which clots can form. In the 1850’s, a German doctor, Rudolph Virchow, studied the factors leading to blood clots and developed a triad of factors. “Virchow’s Triad” consists of the 3 likely factors that lead to the development of a deep vein thrombosis. They are:

  1. Local trauma to the vessel wall
  2. Hypercoagulability
  3. Stasis

Simply put, venous stasis can be considered a decreased blow flow rate; hypercoagulability can be an increased tendency to clot and changes to the blood vessel wall from injury can actually change the biochemical pathways which activates the clotting cascade.

When considering orthopedic surgery, especially such procedures as total hip replacement, total knee replacement, lower extremity trauma surgery, and joint repair, among other procedures, it is easy to demonstrate how the principles of “Virchow’s Triad” can come into play.

In the case of a traumatic injury, frequently vessels are damaged or crushed. Most surgical patients will have periods of immobilization. Frequently, tourniquets are used during surgical procedures. Following surgery, patients will refrain from weight-bearing or other movements. Each one of these could lead to the development of a DVT and it’s potentially fatal counterpart, a pulmonary embolism.

The Deep Vein Thrombosis Prophylaxis Debate in Orthopedic Surgery

Much attention is given to the topic of deep vein thrombosis prophylaxis in orthopedic surgery. This means the prevention of DVT, either in preparation for surgery or following surgery. It is universally accepted that some form of anti-coagulation is indicated in procedures such as a total hip replacement and total knee replacement. There is extensive disagreement on the need for chemoprophylaxis or mechanical methods of preventing the formation of DVTs in orthopedic surgical patients.

Routine anticoagulation can be achieved through such agents as Heparin, Coumadin, Fondaparinux, or other chemoprophylatic agents. While certain medical societies have published guidelines regarding the need for prophylaxic antithromobolitics in total knee and hip replacements, there is a great degree of controversy among chest physicians, orthopedic surgeons, and cardiologists regarding the need for mandatory antithrombolitic prophylaxis in other orthopedic surgical procedures. Apparently, the potential risks of these therapies may outweigh the benefits they impart. Oftentimes, the patient will develop medical difficulties such as increased bleeding and other significant side effects from chemoprophylaxis agents. The most severe of these complications can actually include pulmonary embolus or heparin-induced thrombocytopenia, which can be limb or life threatening.

Patients Most at Risk of Developing a DVT

The orthopedic surgeon must evaluate the patient’s risk factors in order to determine whether or not chemoprophylaxis agents should be utilized in their surgical patients. The American College of Chest Physicians published an evidence-based clinical practice guideline regarding DVTs. This paper, entitled “Antithrombotic therapy and prevention of thrombosis”, 9th edition, American College of Chest Physicians Evidence-Based Clinical Practice Guidelines, Chest, 2002, discusses prediction probability methods for DVTs. One widely used criterion to measure DVT probability actually scores risk factors in order to create a probability range. Some of the criteria used to determine risk are whether or not the patient has or had the following:

  • Active cancer
  • Paralysis
  • Paresthesis or recent cast immobilization of lower extremities
  • Major surgery requiring regional or general anesthetic in the past 12 weeks or was recently bedridden for greater than 3 days
  • Recent long-distance travel
  • Localized pain along distribution of deep venous system
  • Swelling of entire leg and/or calf greater than 3 centimeters
  • Pitting edema
  • Collateral superficial veins
  • Previously documented DVT or PE

Most studies seem to correlate the increased incidence of deep vein thrombosis with non weight-bearing status and immobilization after surgery.

There are other methods of treatment and prevention of deep vein thrombosis besides medication. Weight-bearing, physical activity, mechanical devices including pneumatic compression devices, compression garments, and, in rare cases, internal filter placement.

It is essential for the orthopedic surgeon performing lower extremity surgery to consider the risk of DVT. The more that the physician and patient understand this complex problem, the better the exchange of information needed to assess the risks to that particular patient. Failure to consider the possibility of DVT and/or failure to recognize the existence of a DVT post-surgically can lead to disastrous consequences.

About Jeffrey R. Davis, P.A.

Jeffrey R. Davis, P.A. represents victims of medical negligence throughout the state of Florida. The firm has a specific interest in working with cases involving medical mishaps due to the failure to avoid and/or timely recognize the development of deep vein thrombosis and pulmonary embolism. If you or your loved one has experienced this type of medical difficulty or damage following orthopedic surgery, please consider consulting Jeffrey R. Davis, P.A. to fully explore your options.

Knowing Too Much Can Be Bad For Your Health – Patient Knowledge in Medical Malpractice Cases

“You have terminal cancer”

Words that would make any patient develop instant and profound perspective into how important they consider their lives to be. When a patient is faced with a diagnosis such as this, they often go through what is considered the Five Stages of Death – Denial, Anger, Bargaining, Depression, and Acceptance. As a coping mechanism, many patients in the Bargaining stage attempt to look for an answer to their problems. Some turn to religious support while others turn to uncovering everything humanly possible about their disease and “bargaining” ways in which they can defeat it.

For some, it might seem unimaginable that trying to understand and attempting to learn everything about your disease could end up hurting you. Yet, the dark truth is that what you know CAN be used against you. In fact, it’s occurring right now inside Florida courtrooms. Courts have started to hold patients more accountable for their medical care. Some people feel that educated patients have been penalized for their knowledge, with medical malpractice cases arguing that these patients failed to adequately care for themselves throughout the treatment process. The rationale behind this is that technology and the advancement of education has made the public more savvy to medical issues, thus the public bears a share of the responsibility for their treatments. Countless medical malpractice suits have resulted in reduced liability for practitioners and increased expectations for educated patients.

In a medical malpractice suit, patients sue medical practitioners, such as doctors, for any medical malpractice that the doctor committed – malpractice such as failing to take adequate care of the patient or failing to prescribe the patient the necessary medications. However, courts have recently held that since patients are now more knowledge about their condition or diagnosis, they should be charged with more responsibility and less should be placed on the medical professional. Therefore, in a medical malpractice action where a doctor did something wrong in the medical procedure, the patient may not have sufficient remedy if the doctor can prove that the patient did or did not do something he knew he should or should not have done, but something the doctor might have neglected to explain thoroughly.

So is Florida medical malpractice law sufficiently protecting patients now? Has precedent tipped the scales in favor of doctors too much now and neglected unaware patients?

The “Traditional” Relationship of Trust

Traditionally, courts assumed that in doctor-patient relationships, the physician had superior knowledge while the patient had little experience and information in regards to any health issues. As such, patients placed great trust in a physician’s decision-making ability and authority. Because of this, physicians were held to a higher standard of care. The traditional physician-patient relationship was based on the patient’s “blind faith” and the physician’s expert and superior guidance.

The New Relationship in the Age of the Internet

The traditional physician patient relationship was based on faith and trust. Unfortunately, the increasing number of medical malpractice cases coupled with the dawning societal realization that doctors can be wrong has led patients to find, explore, and educate themselves with all of the relevant and expert information available via the internet. Patients have started to arm themselves with knowledge about their illness and the steps they must take to better themselves. With the growth of easily accessible scientific knowledge and higher levels of education among the public, many physicians have difficulty maintaining credible claims of special status and judgment. Patients have removed the blindfolds of trust they placed on themselves for their doctors and have instead started to complement doctor information with information they acquire from medical journals, condition-specific books, and the vast, knowledge-rich world of the Internet.

The Ugly Result of Patient Education

In the past, courts were less likely to hold patients responsible for their own care in a medical malpractice action because practitioners had vastly superior knowledge. Physicians had a difficult burden in demonstrating that a patient was negligent with his own care. Now, with the evolution of the doctor-patient relationships, courts have begun to hold that patients are no longer presumed oblivious and unaware of health care needs. Thus, patient negligence that occurs after physician negligence can, in some cases, be used against the patient.

The Medical Malpractice Action

For a patient to effectively assert a medical malpractice action, the patient must show that the physician had a duty, the physician breached that duty, the physician was the cause of the harm, and that an actual harm occurred. The burden to prove this falls on the patient as the party seeking relief.  The duty must be based on a physician-patient relationship, and sometimes a recognized standard of care in the medical community is used to determine whether the doctor had a duty or not. To prove that the doctor breached the duty, the doctor must have failed to comply with that standard in the care of the patient. Lastly, the cause of the harm must result from a casual connection between the breach of duty and the injury sustained by the patient. To succeed the patient must prove all of these elements.

However, in Miami, Broward, West Palm, and other Florida courts, physicians are more often asserting the affirmative defense of comparative negligence – a defense that allows physicians to show that the patient’s negligence, rather than or in addition to the physician’s negligence, was the cause of the patient’s injury. Traditionally, a defense of comparative negligence in a medical malpractice action was often unsuccessful due to the unique characteristics of the physician-patient relationship – the physician’s superior knowledge, the patient’s inexperience, and the high standard of care demanded of the physician. All that has changed.

Comparative Negligence – Did the Patient Breach His Own Duty of Care?

When a physician is sued for medical malpractice, a physician can assert comparative negligence – a defense that reduces the patient’s recovery in the medical malpractice action. The defense ascribes negligence of the patient as a contributing cause to the damages that are being claimed.

To establish the defense of comparative negligence in a medical malpractice action, a physician must prove each of the following elements of negligence:

  1. The patient owes himself or herself a duty of care
  2. The patient breaches that duty; and
  3. The breach of the duty is proximately connected to the damages the patient sustains.

A doctor would have to prove that the patient was well-informed regarding the severity of their condition and the significance of the treatment of the condition. In addition, to establish that the patient had a duty of care for themselves, there is a requirement that a patient exercise the degree of care expected of a reasonable person under similar circumstances. This standard of care can be modified depending on the pain, disability, medication, the effects a disease has on the patient, and the difference in levels of knowledge between the doctor and patient.

Proximate cause in comparative negligence in a malpractice law suit occurs where the patient’s action was the natural, direct, and continuous sequence between the negligent act of the patient and the injury that it caused. Common instance of where courts have held that comparative negligence occurs is where a patient fails, disobeys, or delays to follow a physician’s advice. The result is that since patients have become more knowledgeable about medical issues, a patient’s refusal or inability to exercise due care to protect his own health needs is more likely found to be the proximate cause of the harm to the patient. Therefore, no longer is it just the doctor who is the target for the negligence in a medical malpractice action – the patient is now partially at risk.

What is the Modern Patient Left To Do?

No one expects patients to stop informing themselves about their diseases, diagnosis, or general health issues, especially when so much information is so readily available. Therefore, as an informed modern patient, it is necessary to understand that a patient’s role in understanding the nature of their care has increased. Consequently, patients have much greater responsibility in the eyes of the courts than in the past.

To have a viable claim for medical malpractice and to make sure that doctors do not transfer responsibility to patients, it is important that patients:

  • Follow the directions and prescription instructions provided by their doctors. Patients must follow doctor directives as best as possible in order to minimize the likelihood of a comparative negligence defense undermining the ability of the patient to seek full damages
  • Ask their doctors additional questions if they feel that the directions or prescriptions are not accurate due to their prior information on a health issue. If a patient is still uneasy, get in writing the reasons why a specific instruction or prescription has been given.

Are the courts fairly holding patients more accountable for their own standard of care? Are patients partially negligent in instances they fail or disobey instructions by a medical practitioner? Tell us what you think in the comments below.


Does the Medical Malpractice Reform Act Strike a Balance of Protection or Leave Victims High and Dry?

The Medical Malpractice Reform Act’s Impact on Medical Malpractice in Florida

According to the National Practitioner Data Bank in 2011 there were a total of 692 Malpractice Payment Reports. This has been a decrease of forty-five percent when in 2001 there were a total number of 1,281 Malpractice Payment Reports. This begs the question of whether Florida’s doctors have become better at their profession or whether statutory reform has diminished the amount of actions that can be brought against physicians. Evidence indicates that statutory reform has restricted the amount of actions brought against physicians.

 The Medical Malpractice Reform Act

The Medical Malpractice Reform Act (“Act”) may be the reason why there has been a decrease in malpractice suits. The Act was enacted in recognition of the dramatic increase in medical malpractice insurance premiums, the consequent increase in medical care costs, and the functional unavailability of malpractice insurance for some physicians. It was the statutory intent of the Florida Legislature in enacting the Act to provide a plan for prompt resolution of medical negligence and, to that end, provide for investigation and arbitration of such claims. Therefore, the main intent of the Legislature seems to be to stop frivolous claims, promote settlements, and reduce the high cost of medical malpractice insurance. The act primarily seemed to create protections for physicians.

The Act, among other things, establishes the individuals who shall be held civilly or criminally liable for malpractice; the proper elements that an injured patient must prove to be able to bring a claim for medical malpractice; and the applicable statute of limitations or time frame in which an injured patient can bring such claim.

The Act specifically states that:

“In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care providers, the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably similar health care providers …. [and] if the injury is claimed to have resulted from the negligent affirmative medical intervention of the health care provider, the claimant must, in order to prove a breach of the prevailing professional standard of care, show that the injury was not within the necessary or reasonably foreseeable results of the surgical, medicinal, or diagnostic procedure constituting the medical intervention, if the intervention from which the injury is alleged to have resulted was carried out in accordance with the prevailing professional standard of care by a reasonably prudent similar health care provider.”

 The Criteria for an injured patient to have a claim of medical negligence in Florida

An injured patient must meet certain criteria under the act to pursue a claim of “medical negligence” in Florida:

  1. The injured patient must prove that the health care provider did not fulfill his duty of providing a professional standard of care.
    1. a. It must be first established that the individual providing the care is deemed to be a “health care provider.”
    2. b. This is demonstrated by the use of expert witness testifying that the injury that resulted from the professional standard of care was not within the necessary or reasonably foreseeable results.
  2. Furthermore, after proving that the health care provider breached that duty, the injured patient must prove that the breach of that duty was the cause of the injuries.
  3. Lastly, the injured patient must provide an adequate amount of damages for the purpose of compensation.

 A Big Obstacle for Victims of Medical Negligence

This is quite an extensive list of items that an injured patient needs to prove during a time that they are stressed, in pain, and suffering from other psychological and physical pains that were caused by the “medical negligence.” With such a high hurdle for injured patients, this ultimately begs the question of whether the Legislature’s goal of diminishing frivolous claims was accomplished, or whether there are injured patients who had a valid claim, but due to the fact that they did not fulfill the “elements” of the statute were not able to bring a claim.

Viable Medical Malpractice Claims in Florida As Declared by Florida Courts

The following situations have been declared by Florida courts to be viable medical malpractice claims:

  • Misdiagnosed infection resulting in brain damaged baby
  • Delayed delivering resulting in brain damaged baby
  • Death of pregnant women, also injuring newborn
  • Death of pregnant women
  • Death due to hypertension during pregnancy
  • Improper abortion
  • Death due to Untreated Infection
  • Surgical sponge left in abdomen
  • Fall in hospital
  • Fall from hospital bed

Gaps in the Medical Malpractice Reform Act?

Nevertheless, there was a specific case where under the Medical Malpractice Reform Act, a pharmacy is not deemed to be a health care provider, so when a customer who sued a pharmacy for injuries the customer’s son received when the pharmacy allegedly “misfiled” a prescription was not a valid claim because the element of a “health care provider” was not met. It begs the question of what remedy should be offered to the customer’s son for the pharmacy’s mistake? Who should be held liable if the pharmacy cannot be deemed a health care provider?

Even though it is vital to protect health care providers who give quality medical services and important to shield them from liability due to frivolous claims, it is equally important to note that the individuals who are establishing the legal standards are health care providers and not the actual injured patients. As stated above, the legislature passed the Medical Malpractice Reform Act to stop frivolous claims, promote settlements, and reduce the high cost of medical malpractice insurance. Have medical malpractice victims that don’t meet the criteria to pursue legal action been neglected by the act? Was it the right move?

 Does the Medical Malpractice Reform Act Strike the Right Balance in Protecting Health Care Providers AND Victims?

The Medical Malpractice Reform Act was passed by legislators for the purpose of reducing the high costs of litigation to health care providers. A medical malpractice act should encompass as its legislative intent the protection of the injured patient, and not just merely the monetary protection of the health care provider. In this instance, even though the Medical Malpractice Reform Act may promote settlements and stop frivolous claims, it seems to do so for the benefit of health care providers and to the detriment of the injured patient. Thus it seems injured patients that may have had a viable claim are now being prevented from bringing their claim to court and asking for compensation for their injuries.

Share your Thoughts

Should the Medical Malpractice Reform Act be changed? What’s the best method of changing the act so that less medical malpractice victims are disqualified from pursuing legal action?

Catheter Injuries – Medical Malpractice

Jeffrey R. Davis P.A., a Miami Medical Malpractice law firm, handles cases involving injuries from peripheral intravenous devices, mid-lines, central catheters, ports and other catheters. Jeffrey R. Davis has handled medical malpractice cases in Miami-Dade County, Broward County, West Palm Beach County, Monroe County and throughout Florida.

There are many different types of procedures for health-care providers to obtain vascular access to administer drugs, medications and other solutions. Intravenous devices are also utilized to draw blood and other fluids. Although routine in clinical practice, these procedures and devices require use by a skilled health-care provider in order to avoid injury, infection and other serious complications.

Jeffrey R. Davis, P.A. has handled many cases involving injuries and illness caused by errors in the use and management of these devices. Our firm has assisted clients who have developed infections, suffered nerve injuries, developed hematomas, blood clots and other significant injuries from mismanagement, medical errors and untrained personnel utilizing intravenous devices and catheters.

A brief summary of these various devices and their purposes may be of assistance:

Peripheral Intravenous Device (PIV)

A peripheral intravenous device is typically used for short-term intravenous therapy lasting less than 5 days. Mostly, PIVs are utilized for receiving isotonic solutions and medications with non-irritant properties. The healthcare provider utilizing a PIV must be aware of contra-indications for use such as:

• Localized area of skin excoriation
• Localized edema
• Phlebitis
• Infiltration
• Extravasations
• Previous vein puncture site.

There are vein selection considerations the health-care professional must recognize. Additionally, different vessels have different flow rates. Typically, a small vessel such as those found in the hands may flow at 10ml per minute. A large vessel like the superior vena cava may flow as fast as 2,000 ml per minute. These are just some of the various issues that your health-care provider must identify before utilizing a peripheral intravenous device.

There are specific techniques for a PIV insertion. Improper insertions can cause a multitude of complications including infiltration, phlebitis, infection, extravasations and others. It is essential that the health-care provider utilizing a PIV be familiar with these complications and identify them as soon as is practicable.

PIV Complications:

• Thrombosis (mural thrombus, intraluminal thrombus, peri-catheter thrombus, total venous thrombus)
• Phlebitis (mechanical, chemical)
• Local infection
• Venous spasm
• Infiltration
• Air embolism
• Catheter embolism
• Septicemia
• Extravasations


Mid-lines are usually indicated for short-term IV therapy lasting less than 4 weeks. Oftentimes, mid-lines are needed where a patient has poor venous access or has had frequent lab draws. The solutions and medications used in mid-lines are similar to that of peripheral intravenous devices.

A mid-line is a narrow, short flexible tube that is typically inserted into the cephalic vein below the axillary vein or the basilic vein. The catheter is either made of silicone or polyurethane. It can be either dual lumen or single lumen. In use, the catheter tip should be distal to the shoulder and deltoid muscle.

Some of the uses of mid-lines include lab draws, pain control, anti-microbial agents, multiple medication administration, obese patients, diabetic patients and patients with low platelet counts.

The advantages of a mid-line are that it can be inserted at bedside, it comes with low insertion risks, it is a low-cost device and can be used for home infusions. The disadvantages of mid-lines are it cannot be used for TPN, medications and solutions with an extreme PH and/or osmolality or for continuous vesicant therapy. Mid-lines require the same maintenance and management as PIVs and come with the same complications.

Peripherally Inserted Central Catheters (PICC)

A PICC line is a long, flexible, narrow tube that is inserted into an appropriate vessel. As long as it is properly cared for, it can remain in place indefinitely. The tip is threaded through an appropriate vein to either the superior or inferior vena cava. It can be used for the administration of hyperosmolar, irritants or vesicant medications.

The advantages of a PICC line is that it does not require surgery to place, it is a reliable venous access for the duration of the therapy, the patient does not need more veni-puncture for IV starts, most lab work can be drawn from the PICC line and it does not have the risk that placement of other types of CVC devices have such as the collapse or puncture of the lung or major blood vessels or the nerves in the chest.

PICC lines do have significant risks; these include, but are not limited to,

1. Risk of clotting the access vein (thrombosis)
2. The catheter itself can clot off or it can move into an unintended vein with vigorous movement or coughing
3. Catheter leakage or breakage
4. Risk of infection, usually due to the underlying treatment or disease
5. Risk of unintended injury in nerve or surrounding structures during placement

PICC lines must be placed by a nurse or other healthcare provider that is specifically trained in the use of this device. There are significant PICC considerations that begin with selecting a vein for catheter placement. Things that are commonly used are both superficial veins and deep veins such as the cephalic, basilic, external jugular, axillary, femoral and popliteal.

Like PIVs, there are contra-indications for use of a vein that must be addressed. A skilled PICC line inserter must be extremely familiar with the viscosity of fluid to be used in the PICC line. It is essential that manufacturers’ recommendations be addressed during the use and placement of a PICC line. PICCs range in catheter size as well. Catheters are designated by French or gauge and range in size from 1.1 or 28 gauge to 6 French dual or triple lumen or 18 gauge. There are various catheter materials as well. They include durathane, polyurethane and silicone. There are also different types of PICCs including open vs. closed tip, Groshong catheters.

PICC lines are typically introduced utilizing ultrasound.

This brief article is not designed to address or cover the comprehensive and voluminous considerations that accompany use of a PICC line. PICC lines have a significant array of complications relating to insertion, catheter mal-position, difficulty with removing the stylette, bleeding, hematoma, arterial puncture, cardiac dysrhythmias, nerve injury and damage, nerve irritation, catheter embolism, air embolism and others. Typically PICC lines require radiographic confirmation and placement. There is also a whole host of maintenance and management issues associated with PICC lines including flushing, lab draws, removal, repair, exchange, PICC line dressing change and others. Lastly, there are post-insertion complications associated with PICC lines such as drainage, phlebitis, cellulitis, thrombosis and others. Unlike other peripherally inserted devices, PICC lines have significant potential fatal complications which are rare, but include, pericardial perforation, tamponade, plural effusion, hydrothorax, hemothorax.


An implanted port is thin device that consists of two parts; the catheter and the port. Ports are popular for use in oncology patients. They can remain in a patient for years. Ports can be used for the administration of various types of medications and for lab draws. The components of an implanted port are a soft flexible tube that is inserted into a vein in the chest or arm and has an opening/access just under the skin.

Implanted ports are used for patients that have active lifestyles. Patients that swim or participate in sports are an example. They require lower maintenance than other access systems and are used for longer term indications. Additionally, these lines are more discrete than other types of central lines and also cost less to maintain. They provide the lowest risk for infection of all central venous catheter types. The disadvantages of a port are they must be surgically inserted and removed and the patient still must endure needle sticks. The risks associated with implanted ports include infection (either in or around the port), risk of clotting (both in the vein in or around the catheter), risk of pneumothorax and risk of separation of the port and the catheter.

Ports do require some maintenance and management including flushing, de-clotting, accessing the port, de-accessing the port and eventually removing the port. Ports also have post-insertion complications that should be contemplated.

Another device used for surgical procedures is a tunneled catheter. A tunneled catheter is a flexible, soft, plastic tube that is inserted and tunneled under the skin (usually on the chest, groin, neck or abdominal area into the venous system). Tunneled catheters carry the risk of life threatening air embolism if they break or become damaged. In fact, patients with tunneled catheters should always carry with them a pair of hemostats.

The advantages of a tunneled catheter are no more vena punctures for PIV starts, most lab work can be drawn from the line, they are a reliable source of access for the duration of therapy and the device can usually be covered by clothing. The disadvantages of a tunneled catheter are that they are surgically inserted and removed, there is a risk of infection, there is a risk of the catheter moving from proper position if it is pulled on and there is a risk of hemothorax or puncture of a major blood vessel or nerve in the chest when inserting the line.

There are also non-tunneled catheters which are directly inserted into an appropriate vein and is used for short-term access (less than 2 weeks). Non-tunneled catheters do not require surgery. Unfortunately, this type of catheter has the highest infection rate of all central venous insertion devices.

Hopefully this short article has provided some basic information about catheters, the various types available and the advantages and disadvantages associated with each. If you suspect that you have become injured or have suffered damage following the insertion or use of any of these devices, you should immediately contact your physician for further advice. The law firm of Jeffrey R. Davis, P.A. is available to discuss these types of cases and has worked with highly trained experts in the field of phlebotomy, nursing and vascular surgery to review and advise on catheter related cases.

If you or a loved one has suffered a permanent injury and or wrongful death as a result of a doctor’s negligence, contact Jeffrey R. Davis, P.A. for a free consultation.

Beware of Facebook, Twitter and Other Social Media

When bringing a personal injury claim, it is important to consider that many private aspects of your life will not remain private. Many insurance defense firms, private investigators, and defendants search and comb through social networking sites such as Facebook, Twitter, and LinkedIn. During the discovery phase of any litigation, most courts will allow the Defense to go through your Instagram, Facebook, and other social network accounts. Just one photograph or video may be taken out of context and destroy or lower the amount of monies awarded.

Recently, a woman who brought a personal injury case in Gwinnett County, Georgia tweeted about her travels and partying during the course of her case. As a result the jury lowered their damages award. The woman, a victim of a car accident, claimed that the injuries she sustained to her arm as a result of the car accident and she was unable to perform her job duties as a hairstylist. However, the Defense attorney provided tweets and pictures of the Plaintiff having fun in New Orleans with her friends and enjoying spring break on the beach. The Plaintiff asked for $1.1 million for her injuries and received $142,000.

What is the insurance and defense attorney looking for in Social Networks?:

  • Pictures of you having fun, showing that you have not been injured, and that you have returned to your normal routine;
  • Videos of you performing acts that you now claim you have difficulty with or cannot do;
  • Statements regarding the incident or accident;
  • Potential friends to interview and depose;
  • To catch you in a lie to damage

If you are involved in any type of legal matter, including a personal injury case here are a list of tips when using social networks:

  • If you can live without Facebook, Instagram, Twitter, LinkedIn, etc. CLOSE DOWN YOUR ACCOUNT. This will be the safest way that you will ensure that you will not damage your case;
  • Set your settings as private as possible;
  • Ask your friends and family to not tag you in any posts or photographs;
  • Do not discuss any aspects of your case on these social networking site;
  • Do not “check-in” anywhere.

In fact, many insurers are not trying to challenge liability as must as causation and whether the victim has a permanent injury.

The Miami based attorneys at Jeffrey R. Davis, P.A. are experienced personal injury attorneys who understand the techniques used by defense attorneys and insurances. The use of social media is just one of the ways that the other side will try to lower the damages awarded to a victim of another’s negligence. If you or a loved have been injured because of the negligence of another, contact us for a free consultation to discuss your potential case.

Nurse Alleges Medical Malpractice – Florida Hospital

As a Miami medical malpractice law firm, Jeffrey R. Davis, P.A. has represented many victims who have undergone unnecessary procedures causing permanent injuries and even wrongful deaths.  Recently, HCA,the largest for profit hospital chain in the United States (163 facilities) after an investigation uncovered that as late as 2010 some of its cardiologists in many Florida hospitals were performing unnecessary cardiac procedures. These hospitals included Cedars Medical Center in Miami, Regional Medical Center Bayonet Point, Lawnwood Hospital, Kendall Regional Medical Center, and Palms West Hospital. It was reported that at Bayonet Point a 44 year-old man who arrived at the emergency room complaining of chest pain suffered a punctured blood vessel and a near fatal episode after he underwent a procedure than an outside expert believed was unnecessary. In addition, a woman with no significant heart disease went into cardiac arrest after a vessel was cut by a cardiologist when the doctor inserted a stent.

Bringing a medical malpractice claim is extremely complex. Moreover, Florida laws are designed by the legislature to protect doctors and medical facilities. For example, these are a few of the restrictions placed by Florida law on medical malpractice claims:

  • Florida doctors may practice medicine in Florida without malpractice insurance;
  • A medical malpractice claim must be initiated within two years of the alleged incident;
  • Before suit can be filed against a medical provider, a pre-suit notice must be filed followed by a pre-suit period for investigation;
  • Florida law dictates under what circumstances a doctor may be liable for medical malpractice and when they have immunity;

In addition, many times a medical malpractice claim involves multiple parties including the doctor, nurse, their employers, the hospital, and other medical providers. If you or a loved one have been injured as a result of medical malpractice it is important that you speak with an attorney regarding your case as soon as possible.  An attorney will need to research your claim and determine whether a claim can be brought.  This all must be done within the two year statute of limitations.

The attorneys at Jeffrey R. Davis, P.A. have 25 years of experience representing victims of medical negligence throughout Florida. We have the resources, knowledge, and experience to litigate claims against hospitals, doctors, and other medical providers. Contact us for a free consultation regarding  your potential medical practice case.