Tag Archive for medical malpractice

The Florida Birth-Related Neurological Injury Compensation Association & Medical Malpractice

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An infant can be hurt before it actually is born. Childbirth is a very intense and traumatic event for both the mother and child. There are cases where the infant is hurt during and that can cause neurological injuries after it is born. There could be a myriad of reasons why the child is hurt during the childbirth experience and sometimes it can be due to the hospital and/or other medical officials. In those situations where a medical professional or establishment is at fault, lawsuits are sure to follow. The state of Florida came up with a way to avoid what they call “the costly legal proceedings and compensate the effected families”. The Florida Birth-Related Neurological Injury Compensation Association or NICA was created by the Florida Legislature in 1988. NICA’s compensation plan pays for the medical care of infants with certain kinds of neurological injuries. The goals of NICA were to foster obstetrician services by physicians, fix what the issues they saw with medical malpractice insurance, and provide direct assistance to the injured children.

In general, Medical Malpractice is a huge driver of litigation in the courts. Especially in a place like Florida, where the demographics of the population would mean the residents would need more medical services. For years there have been movements against lawsuits against medical malpractice. The opponents tend to be huge hospitals and insurance companies that are constantly being sued in court over the malpractice allegations. So they have pursued and supported litigation seeking to limit the scope of medical malpractice. They were even successful through legislation in getting caps placed on medical malpractice awards. In 2003, the medical malpractice law was overhauled and the caps were put in place. That severely limited what a family could get should they pursue litigation. That legislation may have caused some families not pursue litigation on medical malpractice because of the caps. In 2014, The Florida Supreme Court in a 5-2 ruling struck down the caps on medical malpractice awards. The justices said “the caps saved a modest amount for many by imposing devastating costs on a few.”

While the medical malpractice caps have been removed, the issue of medical malpractice and NICA came together when article was published by The Florida Bar Journal in 2011. The title of the article was Twelve Ways To Avoid A Determination Of NICA Compensability In A Medical Malpratice Case.  In the article, the author Jon Gilbert lists the factors a plaintiff attorney should apply to a case where it is deemed acceptable in a NICA court for determination on compensation.

Medical Misdiagnosis

blue caduceusMedical misdiagnosis is a serious issue which can result in a patient’s death. In general, medical misdiagnosis can lead to lawsuits against the doctor and the hospital from the affected family. It falls under medical malpractice. Village Voice published a story titled Type Miscast: An Elmhurst Doctor’s Type 2 Diabetes Misdiagnosis Results in the Death of a Six-Year Old Girl, where Claudialee Gomez-Nicanor died because her doctor misdiagnosed her diabetes.

Nicanor’s story includes issues her doctor (Dr. Arlene Mercado) had in regards to her record, the suffering Nicanor went through just before she died, and how Mercado’s fatal misdiagnosis led to Nicanor not receiving the treatment she needed. Nicanor’s family ended up suing Mercado and winning their lawsuit. According to the story, Nicanor’s family won $100,000 for economic loss, $400,000 for her daughter’s pain, and $7.5 million in punitive damages.

The judge still has to decide the total amount Mercado has to pay. The story ends with Mercado keeping her license and administering treatment to a room full of patients. Medical malpractice is extremely dangerous and should have consequences. People who have suffered because of malpractice should push for their rights and demand justice and compensation in civil court.


Written by The Team at RD Legal Funding

Trying Torts for Reform

scales of justiceA recent verdict in Long Island, New York awarded a family $130 million after a decade of litigation and appeals. This is the second largest medical malpractice verdict in New York history, and defense attorneys are less than thrilled. The hospital’s lawyers, in the popular refrain of institutions facing payments, declared that the jury was out of control, and that this case was a “powerful argument for even more tort reform”. However, as author and attorney Steven Cohen demonstrates in his thorough analysis of the case in question, Reilly v. St Charles Hospital, “large medical malpractice verdicts may be the strongest drivers in making healthcare safer.”

Tort reform was spearheaded during the Regan administration to achieve three main goals. The first was to reduce the amount of frivolous lawsuits; the second, to cut healthcare costs while ensuring quality healthcare; and lastly, to lower malpractice insurance rates for doctors, and make sure that doctors did not leave the practice. Frivolous lawsuits are often described as “spilled coffee suits”, referencing Liebeck v. McDonalds Restaurants, in which a woman spilled hot coffee on herself at a McDonald’s drive through. This garnered excellent press coverage for tort reform advocates, but was incredibly misleading: this case involved third degree burns, skin grafts, and two years of subsequent medical treatment.  Though not all supposedly frivolous lawsuits involve McDonald’s coffee, many personal injury and medical malpractice cases are labeled “frivolous” on principle.

As it turns out, truly frivolous lawsuits are likely much less common than tort reform advocates believe. According to Cohen’s research, 46% of plaintiffs will drop a med-mal case before trial. Of the remaining 54% that do go to trial, 57% favor doctors and hospitals, and $462,000 is the average settlement award for a plaintiff.

One of the unintended consequences of tort reform is the increase in casesgavel of justice against doctors and hospitals. Shortened statues of limitations require injured parties to bring a case within a more immediate timeframe, causing “plaintiffs [to] file suits that name every doctor who could conceivably be liable in the case.” Tort reform, if anything, has increased the prevalence of lawsuits. To call them frivolous, however, would be a stretch.

In both his Bloomberg editorial and his contribution to The Inner Circle, Cohen asks the reader to consider what message a $130 million jury verdict will send to different parties. Based on interviews with the Reilly v. St Charles Hospital jurors, the verdict was awarded not out of vindication, but out of a sense of duty and fair compensation.

In addition, Cohen gives us the anecdote of anesthesiologists in 1983 who were burdened by high malpractice premiums and higher rates of litigation. This led the American Society of Anesthesiologists to re-evaluate all of their procedures and suggest improvements to the field of anesthesiology. Since that time, the mortality rate from anesthesia administrations is less than 1% of what it used to be, and anesthesiologists’ malpractice premiums are some of the lowest in medicine.

These two events, observed in tandem, show us that allowing lawsuits to pile up and pay out extraordinary awards is evidence of a larger problem. If medical professionals and the medical industry are facing such high rates of litigation, and premiums continue to increase, it may be time for other medical specialties to take the route of the anesthesiologists and reevaluate. If this fails to happen, torts will continue until there is reform.


Written by Shayna Keyles.

$15 Million Medical Malpractice Verdict

Law Week Colorado published a story about a jury verdict that awarded Jason Walters $15 million in his medical malpractice lawsuit against Memorial Health System and a local physician. The lawsuit was filed after Mr. Walters was paralyzed from the chest down after being discharged from the hospital.

Walters is only receiving $300,000 of the $15 million because of the Colorado’s law limiting damages for which health care providers are responsible.


Written by Lulaine Compere.

Lawsuits against New York City Cost $735 Million

Metro newspaper published a story about New York City spending $735 million on settlements and lawsuit awards for a variety of cases that include negligence, police abuse, and property damage. According to the story, the reason for this large dollar amount is because New York doesn’t have any caps on award damages like other states do.

The reasoning is because of this, people view suing the city as one big piggybank. What these critics fail to realize is people in states like Colorado don’t get what they deserve because of those caps. For example, in a recent case in Colorado, a person who was paralyzed due to medical malpractice was awarded $15 million but will only receive $300,000 for his injury. That’s just one story. There are others where states are more restrictive and the horror stories regarding medical caps are worse.


Written by Lulaine Compere.

Family of Teen with Cerebral Palsy Awarded $100 Million

The New York Post reported the story of Staten Island teenager Stephanie Debes, who because of a lack of attention to her mother’s symptoms by hospital nurses, was born premature and had cerebral palsy.

A jury awarded her family $100 million against St. Vincent’s, which went bankrupt in 2010. According to the news report, the hospital staff failed to act on Stephanie’s mother contractions to prevent a premature birth resulting in Stephanie and her sister being born early.

Stephanie’s sister was born without complications but Stephanie has cerebral palsy and as a result has not been able to live a full life. Read the article in its entirety at NYPost.com.


Written by Lulaine Compere.

No Malpractice Insurance and the Societal Implications

An article by the New York Times describes hospitals not having enough malpractice insurance. This is a scary position for both hospitals and patients and there is no good outcome that can come from this.

The article describes a scenario where hospitals would cut back on care if they end up losing a lawsuit, which helps no one in the end. Lawsuits are the plaintiffs’ way of fighting back against irresponsible doctors and nurses at a hospital.

If a patient sues and there is no money to pay them, the hospital can close and society loses on all fronts. In the report, some people say that insurance is a lawsuit magnet. Not having insurance shouldn’t be a slap against people pursuing their rights to justice.


Written by Lulaine Compere.