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Malpractice Cases

What follows are reports of some of the significant medical malpractice cases ruled on by Florida's appellate courts and supreme court for approximately the past year. These reports include only our brief synopsis about the legal significance of these cases, and you should always obtain and read the entire case opinion to see what else is in the opinion. You should not attempt formal legal research on our site because we do not have full case databases nor are we able to keep our reports current on a day-to-day basis. It should be remembered that all cases are fact specific, and even a slight change in the facts could change the outcome of these cases.

Frye test held unnecessary for causation opinion in case against psychiatrist arising out of patient suicide. Rickgauer v. Sarkar, 804 So.2d 502 ( Fla. 5th DCA 2001). In this suicide case alleging psychiatric malpractice, the Court stated that a Frye hearing would not be necessary before the plaintiffs expert could testify that in his opinion, had the defendant psychiatrist recommended hospitalization when the patient came to see her, or had she prescribed other stronger anti-psychotic medication, the patient would have followed her recommendations and would not have committed suicide the next day. The Court reasoned that this was pure opinion testimony, and was not new or novel scientific evidence. The Court pointed out that most expert opinions are not subject to the Frye test. The Court stated that while the Frye test would not preclude this testimony, it might be excluded on other grounds. Under these particular facts, the Court found that the disputed testimony was essentially allowed to come in anyway, so the ultimate outcome below was affirmed

Plaintiffs expert opinions regarding medication being the cause of plaintiffs birth defects held to have passed the Frye test. Rodriguez v. Feinstein, M .D., 793 So.2d 1057 ( Fla. 3rd DCA 2001). The patient and her child brought a medical malpractice case against a doctor alleging that he failed to warn the patient not to become pregnant while taking the medication. The allegations were that taking the medication during pregnancy resulted in the infant's serious birth defects. An evidentiary Frye hearing was held at which plaintiff had three medical experts and defendant had two. Following the hearing the trial court found that plaintiff's expert testimony on causation was inadmissible and then struck the testimony because the conclusions reached were not based upon generally accepted scientific principles. On appeal the Third District Court of Appeal pointed out that the standard of review on Frye issues is de novo. The appellate court then found that the methodology that plaintiff's experts used to reach their conclusions about the teratogenicity of the drug in question is the same methodology generally accepted in the scientific community to establish the teratogenicity of any particular drug. They reached their conclusion by considering the 1) timing and duration of exposure to the drug; 2) the lingering effect of the drug in the system after the patient stops taking it due to the drug's attraction to fatty tissue; 3) the drug's molecular weight which is small enough to be transferred through the placenta; 4) the FDA's classification of the drug as a category "C", teratogenic in animals; 5) the manufacturer's package insert which warns against taking the particular drug during pregnancy; 6) animal studies which have shown the drug to cause birth defects; and 7) the statistical increase in birth defects according to FDA adverse reaction reports. The experts for plaintiff testified that this was generally the methodology used in the scientific community to arrive at an opinion on teratogenicity. Defendant's experts admitted that the lines of reasoning used by plaintiff's experts to reach their conclusions were the generally accepted methods in the scientific community to approach the question of teratogenicity with the exception of the FDA reports.

Plaintiff does not need a medical expert opinion in an informed consent case based on complete absence of consent, as distinguished from lack of informed consent. Gouveia v. Phillips, ___ So.2d ___, 2002 FLW 663482, ( Fla. 4th DCA 4-24-02 ). This lengthy but humorous opinion by Judge Farmer addresses the issue of whether a plaintiff needs a medical expert to testify in an informed consent case. In its holding, the court distinguished between the species of consent cases that deal with whether the consent was "informed", from the species of consent cases where the allegation is that there was actually no consent given. The court stated that normally an expert opinion is necessary in "informed" consent cases to delineate what information should be given under the standard of care. However, no expert would normally be needed in the case where the issue is merely a factual one addressing whether the procedure performed was ever consented to at all.

Expert opinion that more likely than not plaintiffs leg could have been saved if the vascular disorder had been diagnosed earlier should have prevented a directed defense verdict on causation. Hughes v. Slomka, M .D., 807 So.2d 98 ( Fla. 2nd DCA 2002). This was a case against an orthopedic surgeon arising out of the amputation of plaintiff's leg. A directed verdict was granted to defendant based on inadequate evidence of causation. The Second District reversed. Plaintiff's expert had testified that more likely than not the leg could have been saved if the vascular disorder had been diagnosed between January 1st and February 23rd , but then also testified that he thought from the end of January onward, even assuming good care and treatment, there was only a 50/50 chance of saving the leg. The appellate court ruled that on motion for directed verdict the non-moving party gets the benefit of all reasonable inferences and while this testimony was somewhat internally inconsistent, an inference could be drawn that his opinion was that the surgeon could more likely than not have avoided the amputation if he had diagnosed the vascular problem at least during the month of January. This meant the traditional test for causation announced in Gooding v. University Hospital Building, Inc., 445 So.2d 1015 ( Fla. 1984), was satisfied by the testimony.

Defendant was allowed to discover directly from plaintiffs law firm all of an experts billing invoices from other cases he had worked on with the same firm. M organ, Colling & Gilbert, P.A. v. Pope, M .D., 798 So.2d 1 ( Fla. 2nd DCA 2001). Plaintiff's two medical expert witnesses were unable to provide much information during their depositions regarding their prior financial relationships arising out of other cases they had worked on with the law firm representing the plaintiff. The defendant sought production of the information directly from the plaintiff's law firm, which then moved for a protective order. The trial court ordered the plaintiff's firm to produce deposition and trial transcripts of the expert witnesses that it possessed, as well as copies of billing invoices submitted by the expert to the law firm for the previous three years, including for the pending malpractice case. The plaintiff's firm did not object to the production of testimony transcripts, but did object to the production of billing invoices from other cases. The Second District Court of Appeals affirmed the trial court's order finding that the previous history of financial payments from the law firm to the medical expert witnesses was relevant to the defendant's efforts to demonstrate a possible witness bias. No attorney-client privilege was invaded because the trial court had ordered the information to be compiled in redacted form. The court did point out that neither expert was able to provide documentary information regarding their relationship with the firm. The court stated that production of information such as tax payer identification number and 1099 forms are generally discoverable (See Olivas v. Bravo, 795 So.2d 103 ( Fla. 3rd DCA 2001)). The court suggested that had the expert produced this information, it might have rendered the discovery requests directed to the law firm moot, or otherwise inappropriate.

4th District "further refines" its recent Frye decision. Holy Cross Hospital, Inc. v. Marrone, __ So. 2d __, 27 FLW D1212 ( Fla. 4th DCA 5-17-02 ). In the first opinion, at 27 FLW D39a, the Court ruled that a Frye hearing should have been held prior to admission of an oncologists causation opinion testimony in a cancer case. The expert had stated he based his opinion about when the cancer had metastasized on well-known cancer staging studies. The District Court had overruled the trial court, stating this was a "new or novel" use of cancer staging studies, which compelled an evidentiary Frye hearing prior to a ruling on the admissibility of that testimony. Plaintiff's favorable judgment was therefore reversed and the case was remanded for a Frye hearing. On motion for clarification, at 27 FLW D668d, the District Court added that a new trial would be necessary only if after conducting the Frye hearing the trial court concluded that the expert's opinion testimony was inadmissible. Now, on a second motion for clarification, at 27 FLW D1212, the opinion was even "further refined". The defendant was arguing that if the experts opinion was found inadmissible, then defendant should receive a directed verdict. The District Court disagreed, and pointed out that a large part of the expert's opinion testimony was based on "pure opinion" and therefore it would be admissible on the issue of causation without being subject to a Frye test at all. The Court said that if the "staging study" testimony is held inadmissible after the Frye hearing, then the trial court should exercise its discretion to allow the other opinion testimony from the expert witness during a second trial.

It was not error for trial court to prevent defense counsel from attempting to impeach Plaintiff's cardiology expert witness on a collateral matter. Goss v. Permenter, __So.2d __, 27 FLW D1911(c) ( Fla. 5th DCA 8-23-02 ). At trial Plaintiff's cardiology expert was offering an opinion on the standard of care of a cardiologist. Defense counsel attempted to impeach Plaintiff's cardiology expert by questioning him about a prior case where another trial judge had disqualified his opinion offered against an emergency room physician. On appeal the Fifth District Court of Appeal sided with the trial judge and held that whether Plaintiff's expert was qualified to give an opinion against an emergency room physician in another case is clearly a collateral and irrelevant matter.

Why do you need lawyers?

What if the hospital has already expressed an interest in settlement? Every now and then a hospital (rarely a doctor) will approach a family and offer to make a quick settlement when there has been a fairly obvious mistake causing an injury. Hospitals love it if a patient will negotiate and settle with them without retaining a lawyer. They will often even tell the patient "don't get a lawyer because he will just take part of your money." Here are three good reasons why you would still benefit from retaining a lawyer.

1) Every malpractice case is unique and the value depends on a detailed analysis of all elements of liability, causation, and damages. The hospital is very experienced in analyzing and handling malpractice claims and settlement negotiations. Its representatives know what your claim is really worth, but you do not. This creates very unequal negotiating positions and makes it hard for you to negotiate for fair value. The responsibility of the hospital's claims adjuster is not to pay fair value, but to pay the least amount they can get away with. A lawyer on your side will help you determine the true value of your claim and ensure you are not taken advantage of.

2) If there is any discount on the settlement value because you don't have an attorney, the hospital wants it . In other words, while you are the one who is unrepresented and exposed to several downside risks, the hospital will want to reap the economic benefit of you being unrepresented. They will want to pay you the net settlement value deducting what you would have paid to a lawyer if you had hired one.

3) In most cases, at least in Florida, there are complicated liens against your settlement proceeds by entities like Medicare, Medicaid, HMO's, or any other private group health insurance companies which have paid for your medical care. The rule is that if they paid for your medical treatment that was caused by a negligent healthcare provider, and you collect money because of it, you have to pay back all or part of the money which they paid out for your treatment. Failure to pay back some of these liens can actually be a crime. A lawyer can help you figure out BEFORE you settle the claim if there are any such liens which must be repaid and what the amount is that must be repaid. That way you will know if you need to raise the amount you are willing to accept, in order to handle these liens and still net the same amount from the recovery. A malpractice lawyer is normally experienced in techniques for handling these liens, and either eliminating them entirely or at least minimizing the amount which must be paid back. So by retaining a lawyer you will be in a better position to know what you will truly net out of any settlement before you agree to accept it, and you will have professional help after you have settled in reducing or eliminating these required paybacks.

What if I want to represent myself in court?

The doctor or hospital will hire a team of top notch lawyer who specialize in defending medical malpractice claims. The defense will normally pull out all stops to fight your claim. Knowing you are not a lawyer the defense will spend extra time trying to get the case thrown out on procedural technicalities of which you are unfamiliar, rather than defending the case on the true merits of your claim. If you miss one small procedural or evidentiary step along the way your suit could be forfeited. You very well may end up with a judgment against you for the attorneys' fees and expenses incurred by the other side in fighting you.

There is a wise old saying that if a lawyer represents himself in a legal matter he has a fool for a client. If it is true that a lawyer should not represent himself in a legal case, then it should be even more obvious that a lay person should not.

Selecting Malpractice Defendents

Selecting defendants.

The handling of a medical malpractice case is unique in the practice of law. Although there is some kinship to cases involving legal malpractice, architectural malpractice, accountancy malpractice and even products liability (sometimes called "manufacturer's malpractice"), in medical malpractice, often there is a vast array of players in the act. The talents of these players can vary considerably. In what appears at first to be surgical malpractice, one may find that the surgeon was in fact brilliant, and it was the anesthesiologist who was incompetent. In the next case there may be an incompetent surgeon and a brilliant anesthesiologist. Nurses, of course, also vary in ability, from a scale of "minus one" to "plus ten."

An important step in screening a medical malpractice case is to check the credentials of the health care providers who might become defendants in the lawsuit. More that fifty percent of the medical practitioners in the United States are board certified. This means that they have taken approved postgraduate training and have passed an examination required by the particular specialty board. When a physician holds himself or herself out as a malpractice specialist, in most cases it is safe to assume that he or she is board certified and has acquired the training and skills ordinarily possessed by physicians in good standing in the community who practice the same specialty. But when a nonboard certified physician holds himself or herself out as a malpractice specialist in a particular field, there is a strong inference that that physician does not possess the training and skills that should be possessed for that field, and if that physician is involved in an "untoward event," lack of training and skill just may be the cause.Some hospitals grant staff memberships to board certified specialists only, and usually such hospitals have a good reputation in the community and within the medical profession. Hospitals with willynilly policies on granting staff memberships ordinarily do not have a good reputation, and if there is an untoward event, it might be explained by this laxity in credentialing.

In determining who should be made a defendant, it should be borne in mind that any physician or other party, including hospital personnel, who has contributed to the client's injury should be joined as a party to the malpractice lawsuit. At the same time, care should be exercised to not unnecessarily join an individual if he is innocent of wrongdoing, and if he has not participated in a conspiracy to protect the actual wrongdoer. Collateral, remote, and innocent persons should not be subjected to a lawsuit.I do not rule out a defendant merely because he or she does not have malpractice insurance. I will still go after them. Personally, I believe it is immoral for a physician to be in a position to injure someone and not be able to pay the malpractice damages. I had a case in which I represented a lady who awoke from anesthesia to find her plastic surgeon fondling her. The surgeon, who had also performed the operation poorly, had no malpractice insurance. We won a $500,000 verdict and collected $350,000 of it from the defendant by forcing the sale of his malpractice office building and home.

On the other hand, in evaluating your defendants, be on guard for the Marcus Welby type of personality. Some doctors, and even some hospital administrators, have such a forthright and wholesome appearance that jurors will not believe that they can be capable of wrongdoing. And, of course, the opposite is true: if you have an unattractive, "schlocky" defendant, you will have a lot going for you in a jury case.In cases in which there has been a serious drug reaction, it is often necessary to join the drug manufacturer as a party defendant. (See Section 25.11 herein.) Attorneys who expect to handle medical malpractice matters should subscribe to and keep current the Physicians' Desk Reference (PDR), published by Medical Economics Company of Oradell, New Jersey. PDR is a compendium of most of the ethical drugs prescribed in the United States. Listings on these drugs in PDR include information on dosage, precautions, contraindications, side effects, and the like. Also, the manufacturer of the drug is identified.

In numerous cases, a physician will claim that a patient had an idiosyncratic reaction to the drug, but it may be that the physician prescribed an incorrect drug, or violated the manufacturer's recommendations regarding usage or dosage of the drug. Also, the manufacturer may have failed to warn of certain hazards of the drug, or misrepresented its effectiveness.Should a drug manufacturer, the maker of a medical or surgical device, or the manufacturer of surgical or hospital equipment, be made a party defendant to the lawsuit, theories of strict liability in tort, specific acts of negligence, and breach of warranty must all be considered.

Evaluating Malpractice Client

Evaluation of the client.

If the case otherwise seems to have merit, the prospective client should be interviewed personally and in depth. You should determine early if he or she is trustworthy and truthful. It must be ascertained if the prospective client is merely vindictive, or possibly seeking to defeat a claim on the part of a physician or hospital for services rendered.The filing of a medical malpractice case is serious business for everyone concerned, and if a lawyer encounters a prospective client who appears to be less than truthful, great care should be taken in proceeding further. It may be that an injury has produced an emotional problem that can explain the client's apparent lack of trustworthiness. Under such circumstances, to be fair to everyone, I would recommend a psychiatric evaluation. Our office has encountered situations in which the client has stated a certain set of facts to be true, but later on, perhaps in giving a deposition, we learn that the client has been lying. In such a case an attorney should offer to withdraw and allow the client to serve as his or her own attorney. If the client refuses to do so, the attorney can ask the court to be relieved as counsel. One need not embarrass the client in doing so; it can merely be stated that "irreconcilable difficulties" have arisen between attorney and client.

The intelligence of the prospective client should be assayed. By intelligence I do not necessarily refer to I.Q., but more to an ability to communicate and express ideas adequately. After all, the vehicle through which the case will be presented, in the final analysis, is the client.The prospective client should be observed with regard to visible residual permanent injury - does he or she have any difficulty walking, bending, etc.? Generally, juries are not interested in giving any money unless there is visible residual permanent injury.While every wronged plaintiff is entitled to redress for his injuries, you will not fare well before a jury if your client looks like a bum, even if the malpractice resulted in serious injury. In evaluating your case, look at the patient, or if you have a wrongful death case, look at the family members. Do you like them? If you do, chances are the jury will, too.

Does the case have "shock value"?

The "shock value" of a medical malpractice case is important. It is a good idea for the attorney to test his or her own reaction to the client's story. Some authorities in the field believe that if a plaintiff's own lawyer is not "shocked" by what happened to the patient, then a jury will not be, and the jury will follow the traditional path of favoring the medical profession regardless of what the medical evidence might be.If the client does tell a shocker of a story, you should not jump to the conclusion that the client is exaggerating. A plaintiff's medical malpractice lawyer must acquire the philosophy that anything can happen in medicine. Probably the most bizarre happening one can imagine has occurred somewhere. I have seen meritorious malpractice cases rejected by inexperienced attorneys simply because they could not believe the client's story.

In a case handled by our office the patient suffered from cancer of the right kidney. The surgeon took out the left kidney! But that was not all. The patient remained in the hospital for some ten days before being transferred to another center to have his cancerous right kidney attended to, and in the transfer summary not a word was mentioned about the wrong kidney being removed!And in another case, a patient with a fourteen-inch prosthesis in her left hip went into the hospital to have the device removed and a new one inserted. But instead of operating on the left hip, the surgeons opened up the normal right hip. Finding no prothesis, they closed the incision and proceeded to work on the other hip. Afterward, they tried to cover up their mistake by explaining to the patient's husband that they deliberately operated on the right hip to see if it had the same disease as the left!

Clients with poor memories.

Many prospective clients, especially those who have sustained serious injury, suffer from poor memories with regard to dates, places, and names. Do not be overly concerned; this is not necessarily a drawback, inasmuch as this kind of information can be procured from other sources: friends, members of the family, physicians' records and hospital charts.The client should be asked to present at the initial interview all available documentation, particularly billing statements. Oftentimes, billing information will provide clues as to what really has been done. A particular surgical or medical procedure may be identified by way of the billing statement. Sometimes, a bill for anesthesia services will state the number of hours and minutes spent by the anesthesiologist in connection with the administration of a particular anesthetic given at the time of surgery. All of these "building blocks" may be helpful.

Summary.

Basically, the bona fides and appearance of the prospective client must be evaluated in the first interview. If it appears that he or she has a legitimate and meritorious claim, with objective evidence of injury and residual damage, it will be worthwhile to proceed further with the investigation.A detailed file memorandum of the entire interview should be prepared.

Excerpted from Medical Malpractice, Third Edition, Ê 25 by David M. Harney Copyright 1993, The Michie Company, 1-800-446-3410 http://www.michie.com All rights reserved. Personal use only. No distribution or republication without prior permission from the publisher.

Strong Malpractice Case

It is most important that a plaintiff's medical malpractice lawyer screen cases and accept only those that are worthwhile. (In some states, the lawyer must certify that he has reviewed the matter with a qualified physician who states that the case is "meritorious.") Often the experienced lawyer can tell if the case is worthwhile from the first contact with the client. If it is not, the client should be informed immediately; the legal and medical systems should not be cluttered with the prosecution of worthless malpractice cases.

True medical malpractice consists of negligent conduct that causes damage. There may be "malpractice" from a theoretical point of view, but if the conduct has not caused injury it is not a matter for the legal system. Sometimes there may be true "malpractice" but no residual damage. These are not strong malpractice cases. Juries are not all interested in a past history of damage; they do become interested when a plaintiff can show permanent injury. (1) The following are examples of such malpractice cases.

Anesthesia

A patient underwent surgery with Halothane (fluothane) as the anesthetic agent, even though he had suffered previous biliary tract disease, which made the use of this anesthetic contraindicated. The patient died as a result of liver necrosis due to the effects of the anesthetic.A trainee anesthesiologist ran out of oxygen before the operation was completed, causing the patient to suffer a fatal cardiac arrest.A patient who underwent surgery for the repair of a pilonidal cyst under epidural anesthesia ended up with permanent uncontrolled movement of the lower malpractice extremities.

Angiography

A patient underwent angiography (dye study of the arteries). The procedure was improperly performed, and the patient suffered brain damage due to malpractice.

Burn treatment

A patient suffering from severe third-degree burns received inadequate and improper "burn therapy."

Childbirth

A child was born with a blood problem-Rh incompatibility-antibodies developed by the mother were destroying the blood in the baby. The attending physicians and hospital personnel failed to detect the child's condition. Malpractice.

A mother who was a diabetic gave birth to a child suffering from "large baby snydrome," and proper care was not excercised in delivering the child. The baby suffered a shoulder-brachial plexus injury.A newborn baby with a metabolic disorder was malpractice diagnosed and monitored by the attending physician and hospital nurses. The child suffered permanent brain damage.A pregnant patient was improperly evaluated and monitored during pregnancy and labor; a difficult delivery ensued, and the baby was born with permanent brain damage.

A patient in labor suffered prolapse of the cord. An emergency Cesarean section was delayed, and the baby suffered permanent brain damage.A patient's obstetrician was twenty minutes late, and delivery room nurses had to deliver her child. Then, although the infant was suffering from respiratory distress, a pediatrician was not called for several hours. The child is brain-damaged and requires life-long care. (See Ý6.4 herein.)

Diabetes uncontrolled

An attending physician failed to control a patient's diabetes and potassium deficiency; the patient died. Diagnostic ERCP - Negligent injection of dyDuring an endoscopic retrograde cholangiopancreatography (ERCP), an inexperienced nurse injected the dye too forcefully and caused the patient to develop pancreatitis and other debilitating injuries. (See Ý4.3 herein.)

Diet error

An accident victim's operation to repair a skull fracture was delayed twenty-four hours because the patient was fed a regular diet by nursing personnel, despite a physician's order that the patient was to receive nothing by mouth. The patient suffered permanent brain damage.

Drug addiction
A patient underwent unnecessary surgery that resulted in severe pain for which addictive medication was prescribed. The patient became a drug addict due to malpractice.

Drug reaction

A patient with a minor infection repeatedly was given sulfa medication without proper indication and malpractice. The patient suffered Stevens-Johnson syndrome and permanent eye damage.

Errors in diagnosis generally

A child swallowed foreign metal material, and the attending physician failed to diagnose the trouble due to malpractice. The child died.A child ingested an alkaline solution and at the hospital emergency room the physician used the wrong antidote. The child suffered permanent esophageal injury.A child was born with congenitally dislocated hips, but the attending obstetrician and pediatrician failed to diagnose the condition. There was permanent disability.A patient suffered from cancer, but the attending physician failed to diagnose the disease. The cancer spread and the patient died.A patient ingested insecticide. His physician incorrectly diagnosed his condition, and failed to administer the proper antidote. The outcome was permanent brain damage.A patient suffered from ulcerative colitis of the sigmoid colon. His attending physicians failed to perform a sigmoidoscope examination, and the condition progressed, finally requiring removal of a large part of the colon.A patient suffering from appendicitis was misdiagnosed; the appendix ruptured, and the patient developed fatal peritonitis due to malpractice.A woman had a cancerous condition of the leg, but an inaccurate diagnosis was made, and the patient was subjected to heat and ultrasonic treatments. The cancer spread and the patient died.A patient who fell was taken to the hospital emergency room where a diagnosis of inebriation was made. The patient actually had a fractured spine and a severed spinal cord. The result was permanent paraplegia.

Following surgery, a patient complained of difficulty in swallowing and pain in his throat. His neurosurgeon mistook the symptoms for a sore throat and did not come to see him. The patient died the next day from aspirating vomit. (See Ý9.5 herein.)An on-call ophthalmologist, without seeing the patient, diagnosed his eye pain, sensitivity to light, and nausea as sinusitis, when in fact it was acute angle closure glaucoma. The patient lost sight in the eye due to malpractice. (See Ý14.2 herein.)A urologist who visually inspected and palpated a patient's suspected testicle tumor by surgically pulling it up through the inguinal canal concluded that it was only an inflammatory process when in fact it was malignant. (See Ý17.4 herein.)

Experimental therapy

A patient complaining of low back pain received an injection of an experimental enzyme into a vertebral disc, causing a neurological deficit.An experimental implantation of a muscle in the spinal cord resulted in quadriplegia.Fractures due to malpractice
A patient suffered a fracture of the forearm that was improperly set, resulting in Volkmann's contracture and permanent disability.Even though a patient with a hip fracture was under a physician's care, X-rays of the hip were not made for nine days, during which time the patient was allowed to walk. The patient suffered severe narrowing of the hip joint and permanent disability due to malpractice.

Heart surgery

A patient with coarctation of the aorta underwent surgical repair, but the heart-lung by-pass machine was not in operation, and the patient suffered nerve damage and paraplegia due to malpractice.A patient underwent an unnecessary heart catheterization and developed a blood clot in the leg that was improperly evaluated. The patient suffered permanent disability due to malpractice.

Hemorrhage uncontrolled

A patient suffered from hemorrhage of esophageal varices. He was not given prompt and adequate treatment, and he died.A patient was admitted to a hospital for minor surgery and was allowed to suffer from an uncontrolled nose bleed, causing shock and irreversible brain damage due to malpractice.

Medication inadequate

A child suffering from meningitis was sent home with a prescription that was inadequate and inappropriate. The disease progressed, and the child suffered permanent brain damage. Pap smear not followed-uA Pap smear taken from a patient who was complaining of vaginal bleeding showed "extremely suspicious cells," but her HMO gynecologist did not follow up with a later test, and her cervical cancer was not diagnosed for another two years. Also, the laboratory report was insufficient. (See Ý16.3.)

Spinal surgery

A patient complained of low back pain and underwent removal of a disc. There was nerve injury, causing the patient severe pain. Thereafter he had to undergo various operations on the spinal cord, all of which were unsuccessful.A patient was injured in a serious automobile accident and underwent back surgery. A tear in the dura was not diagnosed, and the patient developed meningitis and died.A patient underwent low back surgery for the removal of a disc. During the approach, an instrument accidentally went through the spinal canal and into the patient's abdominal cavity. A major blood vessel was lacerated, which almost took the patient's life.A patient underwent low back surgery following a minor fall. There was no objective medical evidence whatsoever to justify surgical intervention. The patient suffered emotional and physical disability, and attempted suicide.A patient undergoing a cervical laminectomy suffered from a preexisting osteophytic condition that contraindicated extension or flexion of his head or neck more than ten to twelve degrees. The nurse anesthetist who intubated and anesthetized him was never told of this condition. Following the operation, the patient awoke from the anesthetic a quadriplegic. (See Ý1.2 herein).During an elective lumbar laminectomy, an orthopaedic surgeon caused a tear in the dura that resulted in a complete evacuation of cerebrospinal fluid, which in turn caused a brainstem herniation and death. (See Ý8.6 herein.)

Stomach surgery

A patient underwent surgery for removal of a portion of the stomach. Anastomosis (joinder of parts) failed, and the patient required further surgery with prolonged disability.Unnecessary stomach surgery was improperly performed, requiring three additional major operations, and a prolonged period of disability.A patient underwent surgery for the repair of a duodenal ulcer. He suffered duct damage during the procedure, and required four additional operations. He was permanently disabled.

Treatment delayed when patient not accepted

An attending physician failed to diagnose coronary occlusion and the patient was not hospitalized. When the patient's condition deteriorated, and he finally was ordered into a hospital, the hospital refused to accept him. He was transferred to another hospital but did not survive. Ý 25.6 Fee arrangement-Advancing costs.Most medical malpractice cases for the plaintiff are handled on a contingent fee basis. Ordinarily this ranges from 331/3 to 50% of the recovery after costs are deducted "off the top."Medical malpractice cases are such that usually there will be no settlement, nor even negotiations toward settlement, until the lawsuit has been filed and all essential depositions have been taken. In most well-prepared cases, there is virtually a trial through the discovery process before the actual trial in court. Therefore, "sliding scale" contingent fees (i.e., 25% before the suit is filed, 331/3/% after the suit is filed, 40% if the case goes to trial, 50% if the case goes on appeal, etc.) are not in vogue. But, of course, this is a matter of individual negotiation between you and your client, and should be in accordance with your local custom and practice. Some states now have statutes limiting contingent fees in medical malpractice cases. 2After the first interview with your client, you may deem it necessary to have him or her sign a contingent fee agreement, subject, of course, to your right to withdraw should you find the case unmeritorious after additional investigation.This fee agreement may provide, if permissible in your jurisdiction, that you have the right to advance costs on behalf of the client (and the right to be reimbursed). Ordinarily, the victim of medical malpractice has been plunged into a financial abyss, and is unable to undertake the cost of the investigation and prosecution of the case. The matter will move much more expeditiously if you are in a position to advance the necessary expense of investigation and litigation. These advances usually do not include any sums for medical care and treatment, however, and are limited to the necessary expenses for medical reviews and examinations, and costs of investigation, depositions and the like.

Source: Excerpted from Medical Malpractice, Third Edition, Ý 25 by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410http://www.michie.com
All rights reserved. Personal use only. No distribution orrepublication without prior permission from the publisher.

Legal Malpractice

Legal malpractice is the term for negligence by an attorney that causes harm to his or her client. In order to rise to an actionable level of negligence, the injured party must show that the attorney's acts were not merely the result of poor strategy, but that they were the result of errors that no reasonable attorney would make. Furthermore, legal malpractice requires a showing of an injury that would not have happened unless the attorney had not been negligent. If the injury might have occurred despite different actions by the attorney, no cause of action will be permitted.
A common basis for a legal malpractice claim arises where an attorney misses a deadline for a filing a paper with the court, and this error is dispositive of the case.
There exists a community of lawyers within the larger legal community whose entire practice consists of representing plaintiffs in legal malpractice cases.

Source: Wikipedia http://en.wikipedia.org/wiki/Legal_malpractice

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