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Posts

The Steps to Take When Your Medical Professional Doesn’t Do Their Job

August 20, 2018/0 Comments/in Workplace Negligence /by Jeffrey R. Davis

Medical Malpractice occurs in the United States more often than we think. According to the Journal of the American Medical Association (JAMA), medical negligence is the third leading cause of death in the U.S.— right behind heart disease and cancer. If medical malpractice itself does not lead to death, it can lead to health complications, extensive medical expenses, emotional harm, and financial ruin. If you or a loved one has been a victim of healthcare provider negligence, here are some steps you can take:

1. Consult with a Medical Malpractice Attorney.

  • Nearly all attorneys that are competent to handle medical negligence cases will offer a free consultation to discuss your case and review your records. Medical malpractice claims have a unique set of rules, standards and procedures in Florida. To properly present and try medical malpractice cases in Florida, an attorney must be thoroughly familiar with the specialized time frames and requirements. These types of cases are almost always contested and frequently involve litigation that ends up in trial.

2. Identify if you have a medical malpractice case.

  • Medical malpractice occurs when a healthcare professional falls below the standard of care. This negligence can be through omission or commission. It is actionable when it causes injury to a patient. This may be because of errors in diagnosis, management, treatment, aftercare or failure to refer to the appropriate specialist.
  • Medical malpractice is not often easy to identify. While there are obvious cases such wrong-side surgeries or foreign objects left behind after a procedure, most medical negligence cases require identification by an independent healthcare provider. An attorney that is familiar with medical malpractice cases will often have expert witnesses that can review medical records and studies in order to determine if malpractice occurred.

3. Collect all the documents that you need for your case.

  • Florida law requires the healthcare provider to turn over patient’s records to the patient or his/her representative with a proper written authorization. Patient’s records belong to the patient – not the healthcare provider. A reasonable copy charge is allowed. An attorney familiar with medical malpractice cases will have the specialized forms and materials to obtain patient’s medical records, charts, films and studies in order to have them evaluated and reviewed.

4. Should a patient discuss medical malpractice with the at-fault doctor.

  • This is a tricky issue. In my firm, we advise our clients not to discuss the case with the at-fault doctor. There are some situations where the patient has a limited or specific role where such contact would be appropriate. In a situation where they want the offending doctor to pay for or repair a limited aspect of damage (for example, broken tooth or simple scar revision), than the direct approach may be appropriate. In a more complicated situation involving significant and permanent injury, it is very unlikely that the offending practitioner will deal directly with the patient outside of the procedural formalities of a medical malpractice claim. The same holds true with the patient speaking to his/her other doctors about their medical malpractice case. Most physicians do not wish to get involved in a claim against a fellow local doctor. That is just an unfortunate reality; however, there are exceptions. If often makes more sense to allow your attorney to conference with the other physicians or subsequent treating doctors to see about their willingness to assist or participate in the case.

5. Should I file a complaint with the Board of Medicine or Agency for Healthcare Administration.

  • In many instances, your attorney will contemporaneously initiate an administrative claim against an at-fault physician. There are ethical, societal and strategic considerations to commencing these administrative types of actions. Frequently, lawyers are required to provide a copy of a lawsuit against a healthcare provider to a governing medical board. Your attorney will discuss the pros and cons of commencing an administrative investigation against the healthcare provider or facility.

6. Time in which to initiate a Medical Malpractice case.

  • Florida has a shortened statute of limitations for medical malpractice cases. Typically, it is generally two (2) years from the date of the occurrence. There are exceptions to this rule that allow greater lengths of time and this aspect of your potential claim is usually one of the first considerations that your medical malpractice attorney will evaluate. Timeframes in the presentation of a medical negligence cases are frequently staggered with different timetables occuring at various case phases. Also, different types of defendants (private vs. public) have different claim presentation deadlines. It is essential that your attorney be thoroughly familiar with the exact timetable of events in your case in order to accurately chart the notification and filing deadlines that are unique to your case.

7. Get a medical assessment from another healthcare professional to make sure your case has merit.

  • Florida law requires that a case be reviewed by a healthcare provider of the same specialty (or licensing chapter) to determine whether or not there has been a departure from the standard of care. Other than in rare circumstances, this is a mandatory requirement in every medical malpractice case in the state of Florida. The reviewing healthcare provider must prepare a sworn statement, usually in affidavit form, concluding, upon proper review that medical negligence has occurred. In some states, this is referred to a Certificate of Merit. It is an important step to the presentation of a claim and can take months to obtain. For this reason, we urge our clients not to delay getting a case reviewed.

8. Find a qualified, experienced Medical Malpractice lawyer.

  • Only a small percentage of Florida’s more than 100,000 lawyers handle medical malpractice cases. This particular type of case is unique for a number of reasons. First, it requires an enormous investment of time and money. It can cost hundreds of thousands of dollars to successfully present a medical malpractice case to a jury. It requires the attorney to be thoroughly conversant with medical records, medical terminology, anatomy and physiology. A medical malpractice attorney must have the ability to not only identify and locate the correct type of expert, but also to make sure the expert has all the necessary materials to review. Medical malpractice cases are typically litigated by seasoned and experienced medical malpractice lawyers that are intimately familiar with the intricacies of Florida’s complicated medical malpractice statutes, rules and ever changing case law. Medical malpractice cases are fraught with minefields, traps and hidden deadlines. Before you decide to hire an attorney, make sure she or he has experience handling medical malpractice cases. At Jeffrey R. Davis, P.A., we pride ourselves on being selective when choosing cases that have both merit and justifiable damages. We believe that our clients deserve our full and complete attention. We spare no expense selecting highly-credentialed experts that are thoroughly familiar with the specific medical issue to best enable our client’s case to be presented to a jury.

If you or someone you know has a case that you believe involves a medical error, please contact Jeffrey R. Davis, P.A. (305) 577-3777 for a free consultation. We handle cases throughout the state of Florida and are available on a 24/7 basis. We are bilingual and have been representing Plaintiffs in medical malpractice cases for more than 30 years.

The Opioid Crisis

June 11, 2018/0 Comments/in Assaults, Robberies, & Attacks /by Jeffrey R. Davis

Stories about the current opioid crisis can be found anywhere, through news channels, social media or maybe you have met someone personally affected by this epidemic. A recent study shows that on average pharmacies are filling more than 214 million opioid refills or first time prescriptions a year. There are many types of opioids that are legally prescribed; these pain medications included oxycodone, vicodin, morphine, codeine, and others. If you take a deeper look into the crisis, it also includes use of illegal drugs such as heroin or synthetic opioids like fentanyl.

The question here is what is being done to stop this epidemic from spreading? Lawsuits are being filed across the country in an effort to hold the prescribing doctors, hospitals, pharmaceutical companies and pharmacies accountable. Some of the claims state that the prescription drug is to blame for an individual’s addiction and once their prescription runs out this what leads a person to buying illegal drugs, which results in criminal activity. There are suits being filed against pharmaceutical companies that claim evidence is being hidden about the dangers and how highly addictive these medications really are.

Take for instance a case that has been filed in Florida; Attorney General Pam Bondi is suing some of the largest opioid drug makers and distributors. The state of Florida is claiming these companies failed to inform those dispensing and/or using these drugs of their risks. The Attorney General has stated, “It’s time the defendants pay for the pain and destruction they have caused.” The suit seeks damages for costs associated with drug treatment. This includes the costs of care for babies born with addictions to opioids, state foster care services, first responder services, hospital and emergency treatment, law enforcement expenses and other taxpayer expenses caused by the epidemic. Similar cases were also brought about in five other states by their attorney generals. These states include; Nevada, North Carolina, North Dakota, Tennessee, and Texas. Hundreds of other lawsuits have followed alleging misrepresentations and other aspects of negligence regarding these prescription drugs.

In 2017, Mckeenson Corp, one of the largest drug distribution companies in America reached a settlement with the Justice Department to pay $150 million to the U.S Government for failure to detect and report suspicious opioid orders. According to the Washington post “ the government accused Mckeenson- the fifth largest company in the United States- of failing to design and use an effective system to detect “suspicious orders” from pharmacies for powerful painkillers such as oxycodone”, as required by the Controlled Substance Act. In Colorado, Mckeenson filled more than 1.6 million orders for controlled substances from June 2008 to May 2013, but it reported just 16 of them from a single customer as suspicious.” This was so far the largest fine against a distribution company. Another example of a settlement was in 2017 against Costco. Costco agreed to pay $11.75 million to the U.S Government to settle charges that stated the company unlawfully filled prescriptions for doctors that were either not registered or unqualified.

While these are only initial efforts in the race to stop this epidemic, it has been stated time and time again what a huge role the opioid companies have had in this epidemic. The hope is that the outcome of these legal cases will force pharmaceutical manufacturers to responsibly design, label and distribute opioid-based pain medication to avoid its dangerous and addictive misuse thereby hopefully ending the horrible opioid drug crisis.

Jeffrey R. Davis, P.A. is a law firm dedicated to pursuing justice on behalf of its injured clients. If you, a friend or a loved one have been injured due to medical prescription mismanagement, pharmaceutical error or other adverse medication events, please contact Jeffrey R. Davis, P.A. for a free case review and consultation. Our offices are available on a 24-hour basis in both English and Spanish.

High School Dance Horror

May 28, 2018/0 Comments/in Bad Faith /by Jeffrey R. Davis

We recently concluded a case involving high school senior that was injured at a school dance.  The case took nearly 7 years to finally conclude.  The claim began when our client, age 19 attended a high school dance in a large auditorium.  Students were allowed to perform their own, freestyle dances.  The school allowed the students to form a large circle and individuals or groups of students would enter the center of the circle in order to perform their various routines.  The school had no plan for the dance, no rules and, virtually no supervision.  Essentially, the students were allowed to perform any type of dance or maneuver they chose.  Our client, an athletic gymnast, decided that he and his partner would perform a lift-assisted back flip.  The stunt went horribly wrong when the airborne student failed to complete the rotation and smashed his head on the hardwood floor.

Fire rescue was called. The student was unresponsive, and when he did come to, became agitated and in distress.  He was handcuffed to avoid further injury.  At the hospital, he was diagnosed with a fractured skull and bleeding into his brain.

The hospital visit lasted more than 5 months.  Our client developed a massive brain bleed over the days following the fall that required multiple brain surgeries.  He was transferred to a rehabilitation facility for many months and has lived for more than 5 years in a nursing home where he repetitively counts playing cards as a daily activity.

The claims involved negligent supervision against the school, negligence against the fellow-student that launched him into the air and medical malpractice cases against the healthcare providers that failed to provide timely intervention, care and treatment.  The added insult is this young man was here on a student visa – he is now subject to deportation.  This complex negligence and medical malpractice claim was resolved in our client’s favor thereby providing him with the means to receive supervised care and attention for the remainder of his life.  This tragedy has resulted in the school implementing significant changes in the protocols of their supervision to hopefully avoid another tragic injury.

Here at Jeffrey R. Davis, P.A. we work on significant personal injury claims on behalf of injured victims.  If you have been injured due to negligent supervision, medical malpractice or any other injury claim, please call Jeffrey R. Davis, P.A. for a free consultation.

Wheelchair Accident

October 2, 2014/0 Comments/in General Negligence, Workplace Negligence /by Jeff Davis Law

WORKER/WORKPLACE NEGLIGENCE

Negligent Assembly or Installation

Plaintiff: Bolts on wheelchair armrest weren’t tightened

 

Verdict (P)        $807,600

Case Eduardo Trujillo, III and Lizeth Trujillo, his wife, v. T.D. Medical, Inc., and Miguel Nunez, No. 13-23500-CA

Court   Miami-Dade County Circuit Court, 11th

Judge    Jose Rodriguez

Date     8/12/2014

 

Plaintiff Attorney(s)

Jeffrey S. Altman, Jeffrey S. Altman, P.A., Miami, FL (Eduardo Trujillo, Lizeth Trujillo)

Jeffrey R. Davis, Jeffrey R. Davis, P.A., Miami, FL (Eduardo Trujillo, Lizeth Trujillo)

 

Defense Attorney(s)

Gerry A. Giurato, Murphy & Anderson, P.A., Jacksonville, FL (Miguel Nunez, T.D. Medical Inc.)

Christen E. Luikart, Murphy & Anderson, P.A., Jacksonville, FL (Miguel Nunez, T.D. Medical Inc.)

 

Facts & Allegations

On Aug. 13, 2012, plaintiff Eduardo Trujillo III, 40, a musician who has spinal muscular atrophy, received a new wheelchair from T.D. Medical Inc. that was delivered to him at his Miami home by its employee Miguel Nunez. Trujillo claimed that after Nunez delivered the wheelchair, adjusted the armrests, and left his home, the left side wheelchair armrest collapsed, causing him to fall to the ground. Trujillo fractured his right femur.

Trujillo sued T.D. Medical, which supplied the wheelchair, and Nunez for alleged negligent assembly and delivery of the wheelchair.

Trujillo had ordered the wheelchair custom-made. His counsel claimed that T.D. Medical failed to fit it properly for him. They claimed that Nunez, a technician employed by T.D. Medical to provide adjustments to Trujillo’s chair upon delivery, failed to tighten the bolts that controlled the pivoting of the armrest. They also claimed that had Nunez tightened the bolts, the armrest would not have fallen and caused Trujillo to lose his balance and fall.

Defense counsel denied that the armrest was negligently adjusted. They also claimed that if the armrest fell, the wheelchair manufacturer was responsible. Nunez claimed he tightened everything perfectly.

 

Injuries/Damages

fracture, femur; decreased range of motion; loss of consortium

Trujillo sustained a fracture to his right femur and underwent immobilization of the leg. He did not have surgery and the fracture healed on its own. He claimed he suffered a decreased range of motion of his leg.

Trujillo sought to recover damages for past medical costs, past lost earnings, and past and future pain and suffering. His wife, Lizeth, who initially joined the action on a consortium claim, dropped the claim prior to trial.

The defense’s orthopedic expert testified that Trujillo did not suffer a permanent injury. He also noted that Trujillo was already 100 percent disabled and confined to a wheelchair before the accident due to his underlying spinal muscular atrophy. He also pointed out that Trujillo was unable to walk before the accident due to his spinal condition.

 

Result

The jury found the defendants 100 percent negligent. It determined that Trujillo’s damages totaled $807,600.

 

Plaintiff(s)

Eduardo Trujillo

$7,100 past medical cost

$500 past lost earnings

$360,000 past pain and suffering

$440,000 future pain and suffering

$807,600 plaintiff’s total award

 

Insurer(s)

Benchmark Insurance for T.D. Medical Inc. and Miguel Nunez

 

Trial Detail(s)

Trial Length: 3 Days

Jury Composition: 3 male, 3 female

 

Plaintiff Expert(s)

David A. Peterson, M.D., orthopedics, Winter Park, FL (Jeffrey S. Altman, Jeffrey R. Davis) (treating)

 

Defense Expert(s)

Michael Ziede, M.D., orthopedic surgery, West Palm Beach, FL (Gerry A. Giurato)

Editor’s Note

This report is based on information that was provided by plaintiffs’ and defense counsel.

 

Written By –Gary Raynaldo

Edited By -Miguel Fernandez

 

 

Shedding Light on Fatal Food Poisoning

July 7, 2014/0 Comments/in Wrongful Death /by Jeff Davis Law

Nearly one in every six Americans (48 million people) becomes ill from food poisoning every year. Food poisoning usually results in vomiting, diarrhea and/or abdominal pain and passes within two to five days. Yet some types of food poisoning can cause long-term illnesses and even death. Vibrio Vulnificus, a type of bacterial food poisoning results from consuming raw or undercooked seafood, particularly raw oysters. Vibrio thrives in the warm South Florida waters and is responsible for more than 50 deaths per year.

Here are some helpful tips for preventing Vibrio vulnificus infections:

–       Do not eat raw oysters, clams, mussels or other raw shellfish
–       Cook all shellfish (oysters, clams, mussels) thoroughly
–       Avoid cross-contamination of cooked foods with raw foods and juices from raw foods
–       Don’t prepare them in the same place
–       Don’t use the same cutting board when preparing them
–       Eat shellfish immediately after cooking, and refrigerate leftovers
–       Avoid exposing open wounds or broken skin to warm saltwater or to raw shellfish waters

For more information on Vibrio vulnificus click here.

The Law Offices of Jeffrey R. Davis have over 25 years of experience in dealing with food poisoning and personal injury litigation.

If you or a loved one have been injured as a result of the negligence of another, contact us for a free consultation or call us at 305-577-3777.

Florida Supreme Court Rules: Car Owners are Liable

April 11, 2014/0 Comments/in Amusement Park Injury /by Jeff Davis Law

On April 10, 2014 the Florida Supreme Court ruled in Christensen v. Bowen that an individual who has his/her name on the title of a vehicle as co-owner is vicariously liable under the dangerous instrumentality doctrine even though he/she never intended to be the car owner and claimed to giving up control of the car to another co-owner. Simply, if your name is on the title and even though you :1) do not have access to the car where it is parked; 2) you do not have keys to the car; 3) you simply intended the car as a gift; and 4) you did not drive the car, you will be found (liable) for any negligence committed by the driver of said car. In the Christensen case, Mr. Christensen the Defendant and Petitioner (the co-owner named on the title) was in divorce proceedings at the time of the accident.  Note to the wise:  Make sure if you are getting divorced that you transfer the interest to the person that will be driving the car.  If you keep the interest in the car, i.e., your name on the title, you could be held liable for any car accidents that the driver causes.

If you or a loved one is injured or is a victim of a  car accident, it is important to seek legal counsel as soon as possible. A personal injury attorney will be able to document and preserve evidence that will support your potential claim. A car accident lawyer will also be able to request documents such as a your medical records, police records, and court records which will all potential help your future case.  Jeffrey R. Davis, P.A., has a vast experience representing injured victims in personal injury and car accident matters. Jeffrey Davis has represented hundred of individuals as a result of the careless driving of others. Jeffrey Davis, car accident attorney, may be able to help you obtain the justice you deserve.

It is important that if you or a loved one is injured in a car accident, you obtain as much information that you can regarding the other driver/party (insurance information, tag, name, address, etc.). You should also make sure that you tell police a simple and concise explanation of how the accident happened. Make sure that you do not accept money or sign any type of release at the scene of the accident. Also, do not get into a fight or an argument with the other driver. Make sure that you do not speak to anyone at the scene other than the police. Many times, an insurance company will send out an immediate response team.  They are not on your side. In addition, your insurance may come out to the scene to prove that the accident was your fault or that you were not injured. Olga Porven, Esq., an attorney with Jeffrey R. Davis, P.A., is a former insurance defense attorney. She is well aware of what the insurance companies are capable of and has the experience in dealing with insurance companies to help you obtain potential compensation in your case.

Contact Jeffrey R. Davis, P.A. for a free consultation. One of our attorneys will gladly speak to you regarding your personal injury matter.

 

 

 

Personal Injury Attorneys Find GM Flaw

April 11, 2014/0 Comments/in Automobile & Motorcycle Accidents, General Negligence, Legal Education /by Jeff Davis Law

On April 5, 2014 Michael Smerconish of CNN, during his television show Smerconish, clearly explained the importance and validity of the civil justice system during the segment “one last thing.” As many of us have been following, GM is currently in the hot seat with Congress for failing to warn its customers, for over ten (10) years about faulty ignition switches which disabled airbags in Chevrolet Cobalt and Saturn Ion vehicles. It has been discovered that the repair would have only cost GM approximately $.90 per vehicle to remedy the product defect.

Interestingly enough, personal injury attorneys started the investigation that led to the discovery of the faulty ignition switch. Smerconish interviewed the Meltons who lost their daughter, Brook, a 29 year old nurse, in 2010 when her Chevrolet Cobalt shut off while she was driving due to this ignition flaw and she lost power steering, lost control of her car, hit another car and ended up in a creek. As a result of the car accident, Brook’s parents pursued a wrongful death action against GM. Accordingly, their attorneys investigated and hired experts who found that the ignition was faulty – the key switched over from the on position to the accessory position just before the car accident – essentially turning the car off.

Because the Meltons filed their suit, looking for the truth and seeking justice for their daughter, many more lives were saved. Because of their suit GM is now being held accountable by Congress.

This is a great example of how the Civil Justice System continues to work.  It remains a check on businesses and the free enterprise system to continue to produce products that are safe for consumers. Obviously, in this case, the Civil Justice System was more effective that NHTSA (the government agency that regulates car manufacturers) which failed to do much about GM cars’ failures and flaws.

The attorneys at Jeffrey R. Davis, P.A., a Miami Personal Injury law firm, specialize in personal injury cases. We pride ourselves in communicating with our clients and putting our clients first. Jeffrey R. Davis has been practicing personal injury law for over 25 years. We have the insight into what the insurance companies strategies are in defending personal injury cases.

If you or a loved on have been injured as a result of the negligence of another, contact us for a free consultation or call us at 305-577-3777. We will be more than happy to discuss with you the merits of your potential claim.

The Civil Justice System Works

April 11, 2014/0 Comments/in General Negligence, Legal Education /by Jeff Davis Law

Unlike the opinions of Lisa A. Rickard, president, U.S. Chamber of Commerce Institute for Legal Reform, Washington, D.C. and Mark Wilson, president and CEO, Florida Chamber of Commerce, Florida in their Miami Herald opinion letter, the attorneys at Jeffrey R. Davis, P.A. believe that our civil justice system works. In fact the response to this article from Armando F. Paz, Jr. hit the nail on the head. The current civil justice system has many mechanisms in place, not only to stop frivolous lawsuits from going forward, but also to stop frivolous defenses raised by defendants in an effort to avoid responsibility for their wrongs.

Such current mechanisms in place include: 1) dismissing a case; 2) sanctioning the plaintiff and the plaintiff’s attorney for bringing a meritless claim; and 3) reporting misconduct of an attorney to the Florida Bar. Remember like any other field, i.e. medicine, there are regulations in place to ensure that “improper, meritless or frivolous” issues are dealt with accordingly.

In addition, the Chamber of Commerce opinion does not address the months to years of efforts of Plaintiffs trying to resolve claims in the pre-suit stage. It is only after the insurance and/or defendant refuses to resolve these issues, that a Plaintiff will file a lawsuit in Court.  The lawsuit is the last remedy – when all other attempts to resolve the claims without litigation fails. The vast majority of cases that are alluded to in the editorials involve contingency fee arrangements between the plaintiff and the attorney. This means the attorney only gets paid if a recovery is achieved. It also means that the lawyer will usually fund the litigation expenses through out the pendency of the case. It is highly unlikely that a competent attorney would knowingly take a frivolous or unreasonable case, agree to bankroll the same and understand they will not be paid a fee unless they win. The expression “throwing good money after bad” comes to mind. Like anything, there are exceptions and cases that should not be filed.

Our civil justice system has evolved over hundreds of years. It may not be perfect, but it is central to the three branches of government that exist in our country. It is the only mechanism that allows a citizen to seek redress for perceived harm. It is the vehicle in which to enforce the law, contracts, agreements, and to right wrongs. It is an essential mechanism to the rule of law and a key to the integrity of our nation’s financial system.

The attorneys at Jeffrey R. Davis, P.A., a Miami Personal Injury law firm, specialize in personal injury cases. We pride ourselves in communicating with our clients and putting our clients first. Jeffrey R. Davis has been practicing personal injury law for over 25 years. We have the insight into what the insurance companies strategies are in defending personal injury cases.

If you or a loved on have been injured as a result of the negligence of another, contact us for a free consultation or call us at 305-577-3777. We will be more than happy to discuss with you the merits of your potential claim.

Deep Vein Thrombosis Following Orthopedic Surgery

September 5, 2013/0 Comments/in Medical Malpractice, Wrongful Death /by Jeff Davis Law

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

April 9, 2013/0 Comments/in General Negligence, Medical Malpractice, Wrongful Death /by Jeff Davis Law

“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.

 

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