Medical Malpractice

Lou La Cava and David Young Obtained a Defense Verdict in Pasco County in a Medical Malpractice, Wrongful Death Case

David P. YoungLouis J. La Cava

Lou La Cava and David Young obtained a defense verdict for an emergency room physician and her employer in Pasco County in a medical malpractice, wrongful death case. The Plaintiff alleged the doctor, who was board certified in family practice and not emergency medicine, acted with reckless disregard in her care of the Plaintiff. The Plaintiff arrived at the hospital neurologically intact but with a severe headache. The Plaintiff alleged a delay in diagnosing the patient’s subdural hematoma and further a delay in transferring to a hospital that had neurosurgery services since the community hospital did not have a neurosurgeon. Three hospitals turned down the transfer and the Plaintiff alleged the physician recklessly chose the wrong hospitals to call and did not see to it that the task was performed timely. They further argued the physician did not order fresh frozen plasma soon enough so the patient could receive it before transfer. The Plaintiff ultimately had a brain herniation and surgery was unsuccessful. The defense countered that the physician did in fact make the diagnosis timely and got the FFP ordered in time although it was not ready to infuse into the patient until after he left by helicopter. The defense further argued that looking at the care regarding transfer prospectively, the physician followed an appropriate plan to try and get the patient transferred. The defense also argued that earlier transfer or earlier infusion of FFP would not have prevented the death. The Plaintiff asked the jury to award more than 13 million dollars in damages. After just less than an hour and a half of deliberations the jury came back finding that the physician did not act with reckless disregard in her care of the patient and a full defense verdict in the physician’s favor.

Jon Lynn Obtained a Defense Verdict for a Trial in Miami

Jonathon P. LynnJon Lynn recently got a defense verdict after a trial in Miami. The plaintiff claimed that a circulating nurse in a plastic surgery procedure failed to advise the surgeon that the anesthesiologists had some difficulty intubating the patient for an abdominoplasty procedure that resulted in an aggravation of the patient’s injury which led to an extended and complicated hospital admission and left her with permanent injuries as a result of a perforation of her windpipe secondary to her intubation. The plaintiff claimed that if the nurse had notified the surgeon, who was not yet in the operating room when the patient was intubated, of the problem that the anesthesiologists had intubating the patient, her diagnosis would have been made sooner and the injury would not have been as severe. Prior to trial, the plaintiff reached a settlement with the two anesthesiologists who had intubated the patient for her surgery but insisted that the nurse had some responsibility for the delayed diagnosis of her injury that resulted from the intubation error. The jury deliberated for only 35 minutes before returning a defense verdict.

Jeffrey M. Goodis, David S. Nelson, And Brittany G. Showalter Obtain A Defense Verdict In A Wrongful Death Case In Pinellas County

Jeffrey M. Goodis, David Nelson, And Brittany ShowalterJeffrey M. Goodis, David Nelson, and Brittany Showalter, obtained a defense verdict for a Hospital in a wrongful death case in Pinellas County. The Plaintiff alleged that the Hospital’s employee cardiologist was negligent in failing to send the patient to the emergency room for an emergency cardiac catherization following the results of an exercise stress test. The stress test revealed some ST depression in the recovery phase of the stress test. Following the results of the stress test, the cardiologist recommended and emphasized the importance of undergoing a cardiac catherization. The patient refused this recommendation. Based on the patients refusal, the cardiologist attempted to get more information and recommended that the patient at least undergo a lexiscan stress test. The cardiologist also consulted the patients primary care physician in an attempt to try to have her persuade the patient to undergo the cardiac catherization; the patient again refused the primary care physician’s attempt. The patient passed away a week later. The defense argued that the cardiac catherization was not emergent and that the lexiscan was an appropriate alternative in light of the patients documented refusal. Furthermore, that the ST depression in the recovery phase was a result of the patients longstanding uncontrolled high blood pressure and accordingly, due to left ventricular hypertrophy. During closing arguments, the Plaintiff asked the jury to award in excess of $14 million in non-economic damages. After a 5 day case and less than 2.5 hours of deliberation, the jury returned a verdict finding that the cardiologist was not negligent.

Lou La Cava and Janett Durkee Obtain A Dismissal For ENT Physician

Janet DurkeeLouis J. La CavaLou La Cava and Janet Durkee obtained a dismissal of their ENT client without any settlement payment in a case alleging the physician was negligent in the care and treatment of a patient’s ear infection. The Plaintiff alleged the failure to appropriately treat the infection with the correct medications resulted in a perforated ear drum and requirement of a reconstructive ear surgery. The Plaintiff alleged damages of hearing loss and ongoing tinnitus. (ringing in the ears) The case was ordered by the court to non-binding arbitration on two separate occasions. Two different arbitrators returned an arbitration result in favor of the Defendant finding no negligence on the part of the physician. After the second arbitration finding no negligence the Plaintiff agreed to dismiss the case against the physician with prejudice.

Mark Messerschmidt Was Successful In Removing False Contentions From a Website

Mark MesserschmidtMark Messerschmidt was successful in convincing a website to remove false allegations about a healthcare professional and that provider’s care and treatment. Originally, the website falsely claimed this provider’s involvement was substandard according to publicly available information. Mr. Messerschmidt, however, argued that the same public information would directly contradict the publisher’s contentions and demonstrated how the claims against that provider were false in fact. Accordingly, Mr. Messerschmidt’s argument left the publisher without a reasonable option but to remove the false information and print a correction and retraction.

Defense Verdict

Tom Saieva and Lesley Stine Obtain a Final Summary Judgment in Pinellas County

Lesley A. StineThomas Saieva

Tom Saieva and Lesley Stine were successful in obtaining a Final Summary judgment in Pinellas County based on plaintiffs’ failure to comply with pre-suit requirements of Chapter 766, Florida Statutes, in a stroke case against a hospital. Plaintiffs’ pre-suit affidavit against the hospital for the alleged actions of a claimed registered nurse was supported by a neurologist from California with extensive stroke center credentials. This was challenged during presuit and thereafter during the lawsuit on the grounds that, pursuant to Section 766.102(6), claims against nurses, nurse practitioners, certified registered nurse anesthetists, physician assistants, or other medical support staff, could only be supported by similar health care providers, or physicians, licensed under Chapter 458 or 459 (Florida physicians), who had knowledge of the standard of care of those nurses, thus the out of state neurologist’s affidavit was insufficient.

The case was appealed twice. The initial motion for a determination of failure to comply with presuit was denied and appealed. The opinion in PP Transition, LP v Munson, 232 So. 3d 515 (Fla. 2d DCA 2017) was significant because it held that the trial court denied procedural safeguards when it summarily denied the hospital’s motion without express findings as to compliance.

Ultimately, the trial court granted a Final Summary Judgment on the basis of §766.102(6). This case involved the statute relating to expert witness certificates under §458.3175. Plaintiffs claimed that the expert certificate allowed the out of state witness to provide an affidavit against nurses, however the defense pointed out that the expert witness certificate only allowed an out of state physician to testify on the standard of care of a physician licensed under Chapter 458 or 459, rather than a nurse or other allied health professional.

The Final Summary Judgment was appealed to the Second District Court, which affirmed Per Curium in Munson v PP Transition, LP, 2021 WL 6055701.

Second District Court of Appeal Florida

Jason Azzarone Was Successful in Arguing to The Second District Court of Appeal

Jason M. AzzaroneJason Azzarone was successful in arguing to the Second District Court of Appeal that the Trial Court did not abuse its discretion in dismissing the Plaintiffs claims for emotional distress damages in an action where Mr. Azzarone represented a community association. As alleged, a security officer for the community association negligently discharged his firearm, wounding the Plaintiffs’ pet. Mr. Azzarone moved to dismiss the Complaint to the extent that it asserted entitlement to emotional distress damages. The Trial Court agreed, dismissing only the claims for emotional distress damages claims with prejudice. Other property damage and general negligence claims remained. Plaintiffs requested that the Trial Court dismiss all remaining claims with prejudice so that the matter could be reviewed by the Second District Court of Appeal. The Trial Court did so, and on appeal, the Plaintiffs raised many arguments for reversal. In addition to arguing that emotional distress damages were awardable in the context of the facts as alleged, the Plaintiffs also argued that if the Second District Court of Appeal agreed that the Trial Court’s ruling was correct, the matter should be remanded so that the other claims could be litigated. The Second District Court of Appeal entered a Per Curiam Affirmance.

Lou La Cava and David Young Obtain a Defense Verdict In a Wrongful Death Case

David P. YoungLouis J. La Cava

Lou La Cava and David Young obtained a defense verdict for a physician assistant and emergency medicine physician in a wrongful death case in Manatee County. The Plaintiff alleged the physician assistant was negligent for not diagnosing meningitis in a 20 year old who presented with headache, fever, nausea and body aches. A diagnosis of viral syndrome was made and the patent was discharged home. The next day the patient was found unresponsive and he passed away a day later. Final diagnosis on autopsy was sepsis and meningitis. There was no testing performed in the emergency room. The physician was not consulted during the patient’s emergency room visit but later reviewed the record and agreed with the plan of care. The defense argued that an appropriate history and physical was performed in the emergency room which did not demonstrate meningitis. Further, the patient did have a viral illness while in the emergency room and he developed the bacterial infection after he left. After a 9 day case and just less than 4 hours of deliberation the jury returned a verdict finding both health care providers not negligent.

First District Court of Appeal Florida

Jason Azzarone Was Successful in Arguing to The First District Court of Appeal

Jason M. AzzaroneJason Azzarone was successful in arguing to the First District Court of Appeal that the Trial Court was correct in dismissing the Plaintiff’s Complaint in a medical malpractice action brought against a hospital for the actions of its nursing staff. Mr. Azzarone argued that the Trial Court’s dismissal was proper because the Plaintiff’s pre-suit expert, and out of state physician, was statutorily unqualified to render opinions regarding the actions of the nurses. As the Plaintiff was time barred from curing this defect, the matter was dismissed with prejudice. The First District Court of Appeal entered a Per Curium Affirmance.

Mandy Smith, Frank Roberts, Jay Azzarone, and Lou La Cava Obtain Summary Judgment Win in Medical Malpractice Case

Amanda Smith, Frank Roberts, Jason Azzarone, and Lou La CavaAmanda Smith, Frank Roberts, Jason Azzarone, and Lou La Cava were successful in obtaining summary judgment in Lee County based on Plaintiff’s failure to comply with multiple provisions of Chapter 766, Florida Statues, governing the medical malpractice pre-suit screening requirements. Specifically, the Defendant argued that Plaintiff failed to serve a Notice of Intent to Initiate Litigation for Medical Negligence (“NOI”) in accordance with F.S. 766.106(2)(a) and F.R.C.P. 1.650 and failed to provide evidence that the Plaintiff and/or his attorneys conducted a good faith investigation pursuant to F.S. 766.104 and provide Defendants, their attorneys, and/or insurers, with a verified written medical expert opinion from a qualified medical expert in accordance with F.S. 766.102, 766.202, and 766.203.

The Defendant further argued that Plaintiff had ample notice of the pre-suit deficiency with time to cure said deficiency, but did not do so. The Court found that neither the Defendant doctor, nor her employer were put on notice of the potential claim, nor were they named in the NOI that was sent to the co-defendant hospital. The court acknowledged the imputed notice arguments made by Plaintiff and cited in the Young v. Naples Community Hospital Inc., 129 So. 3d 456, 459–60 (Fla. 2d DCA 2014), but relied upon two cases cited by the Defendant, Bonati v. Allen (911 So2d 285, (2005)) and Brundage v. Evans (295 So.3d 300 (2020)), which illustrated that, pre-suit investigation requirements under Florida Statute section 766.203 demanded some specificity towards potential defendants in pre-suit, and a valid notice alone without corroboration does not suffice to meet pre-suit requirements.