Medical malpractice cases in Florida have consistently been seen as an issue, but the state health officals rarely take any action against doctors. Under the law, doctors must report all malpractice lawsuits even when closed. However, little action is being taken towards getting these dangerous doctors out of practice.
Florida lawmakers have called this situation a “medical malpractice crisis.” In 1988 a state law placed a limit on the amount of damages patients could receive against doctors in court and created a division to regulate doctors.
However, lawyers who have participated in malpractice lawsuits across Florida claim that they are not usually contacted by the state Department of Health once a case has been settled. Some attorneys say they have even given up on the state to take action agaisnt these doctors.
Over five years, Dr. Pachavit Kasemsap has owed almost $3 million in five different medical malpractice cases. In one case, Kasemsap sliced an artery to Christine Murray’s liver while performing gallbladder surgery. A jury ruled that doctor was negligent and ordered him to pay Murray $600,000. However, the doctor did not face any state disciplinary action for his negligent behavior.
The health deparmtnet is required to review all malpractice lawsuits against Florida doctors to identify and discipline them. However, an investigation by the Sun Sentinel found that the deartment’s reviews infrequently lead to punishment.
Dr. Ata Atogho, in the midst of delivering a baby with a weak heart, decided to speak with his stockbroker for eight minutes. Though he knew that the baby needed extra help, he did not perform a caesarian section. As a result the child was born with extreme brain damage. He is now bedridden and requires 24 hour care. Atogho had written in the medical record that the mother did not want a C-section. The nurse claimed that this was a lie and that the mother pleaded multiple times for the emergency procedure.
Though Atogho had three other lawsuits from negligent deliveries in 2013, he has received no disciplinary action and can still deliver babies in Florida.
On November 9, the Florida Supreme Court found itself disunited. The court rejected multiple aspects of a 2013 medical-malpractice law because the changes “have gashed Florida’s constitutional right to privacy.”
Pieces of the 2013 law, justices said, could potentially allow for patients’ medical information to be disclosed even if it does not relate to the malpractice cases. The 2013 law dealt with problems in the process in which defense attorneys gather information in medical malpractice cases and their “ex parte” communications with plaintiffs’ doctors.
“Ex parte” communications are conversations between defense attorneys and the doctors surrounding the patient’s treatment. The 2013 law allowed these types of discussions to occur without the presence of plaintiffs’ attorneys. In ex parte communications where a judge is not present, communication is undocumented and could result in patient privacy violations.
Florida’s Constitution protects its citizens against violations of privacy to plaintiffs because the ex parte discussions were unrecorded and without the presence of plaintiffs’ attorneys. Based on this interpretation of the Florida Constitution, Justice R. Fred Lewis believed that this 2013 malpractice law was unconstitutional. Justice Lewis was joined by Chief Justice Jorge Labarga and justices Barbara Pariente and Peggy Quince in the voting to strike down parts of the law.
However, Justice Charles Canady does not see the law as unconstitutional. He believes that Lewis’s opinion is an “unwarranted interference with the Legislature’s authority.”
Those who support the 2013 law along with Canady argue that these ex parte conversations can generate further information surrounding medical malpractice claims, leading to resolutions before the cases go to trial.
The Supreme Court’s decision, on November 9, overturned the decision made by the First District Court of Appeal.
In a February 16 opinion, the Florida Supreme Court stated that it declined to adopt, to the extent that they are procedural, two changes to the Evidence Code: the Daubert amendment and the Same Specialty amendment. Legal observers called the decision a victory for consumers, as both amendments would have imposed stricter controls on expert witness testimony. In rejecting the two changes, the Court cited “grave constitutional concerns” and the recommendation of the Evidence Rules Committee.
Florida’s Daubert amendment was passed by the state legislature and signed into law by Governor Rick Scott in 2013. The law replaced the Frye standard, under which expert testimony is permitted as long as it is generally accepted in its specific field, with the Daubert standard, used by federal courts, under which the trial judge must rule on the reliability of the expert testimony before it can be offered to the jury. Florida’s Constitution provides that the judicial branch has sole authority over procedural rules of court, while the legislature makes substantive law, so the state high court rejected the Daubert standard to the extent that it is procedural.
The Supreme Court also rejected the Same Specialty amendment, which would require an expert witness on the issue of standard of care in a medical malpractice trial to be from the exact same specialty, as opposed to just a similar specialty, as the medical care provider against whom the testimony is offered. In declining to adopt this standard, the court cited the chilling effect that the stricter rule would have on the ability of an injured patient to obtain an expert witness in a medical malpractice lawsuit, thus interfering with the constitutional right of access to the judicial system and a jury trial.
Attorney Robert Joyce will receive the 2016 Champion of Justice award from the Tampa Bay Trial Lawyers Association. This prestigious award has only been given seven times in the past, and it is only presented to attorneys who have demonstrated an exceptional lifetime commitment to the service of justice.
The Tampa Bay Trial Lawyers Association is a non-profit organization of attorneys who represent consumers. The group seeks to recognize excellence in advocacy, and has chosen to bestow Mr. Joyce with its highest honor.
The seven past recipients of the award are Hon. James D. Whittemore, Tiny Geiger, Esq., Edwin T. Mulock, Esq., Hon. E.J. Salcines, Bill Wagner, Esq. and C. Steven Yerrid, Esq. Mr. Joyce is honored to join this esteemed company.
Mr. Joyce’s previous professional achievements include an “AV” rating from Martindale-Hubbell, the group’s highest rating, which is only earned by the top 13 percent of attorneys nationally, and certification as a Civil Trial specialist by the Florida Bar Board of Legal Specialization, a distinction earned by only seven percent of Florida attorneys. Mr. Joyce has served as lead counsel in more than 200 civil jury trials, and frequently shares his expertise through lectures to national and international audiences.
The formal presentation of the Champion of Justice award will take place at the annual Gala of TBTLA, to be held in September 2016.
Jeffrey George, a convicted Florida pill mill owner, testified in the trial of a doctor accused of murder in the overdose death of a patient.
George, who is serving a prison sentence for his involvement in a pain clinic conspiracy, testified that Dr. Gerald Klein was aware that the business model of the clinic was to keep patients on addictive drugs like oxycodone.
Klein, 81, is charged with first-degree murder in the death of Joey Bartolucci, 24, one of his patients. Prosecutors said that Klein prescribed Bartolucci a high dosage of hydromorphone pills as well as Xanax in February 2009, and that Barolucci died of an overdose the next day.
George testified that Klein was aware that the East Coast Pain Clinic accepted cash only, that patients must pay $150 before seeing a doctor, and that no procedures were performed. George said that Klein was paid $4,300 per week for three days of work.
George is serving a 15 ½ year prison sentence after pleading guilty to federal charges related to the drug conspiracy.
In addition to facing criminal charges, pill mill owners and doctors may face civil lawsuits for pharmaceutical negligence filed by people who were injured by improper prescriptions. If you or a loved one suffered an injury as the result of pharmaceutical negligence, contact Joyce & Reyes for a free consultation.