Florida Personal Injury Blog - Compensation

Medical Malpractice and Money

Ed Normand — Wed, 07 Oct 2009 09:00:00 GMT

The public perception that medical malpractice cases regularly result in large awards of money is an unrealistic one. Even if a plaintiff prevails at trial, there is no guarantee that any money will be forthcoming. A study from the Department of Justice, based on data from 43,000 cases, reveals that for seven states between 2000 and 2004 (Florida, Illinois, Maine, Massachusetts, Missouri, Nevada, and Texas), most medical malpractice cases that were decided for the plaintiff ended with no money going to the plaintiff.

For cases in which a plaintiff prevails and is awarded compensation, many states are now capping recovery at a maximum of $250,000. The amount an attorney can recover from that statutory maximum is now also restricted. In Florida, attorneys’ fees in such medical malpractice cases, unless agreed to otherwise, are limited to 30% of the first $250,000 (exclusive of reasonable and customary costs), and 10% of all damages in excess of $250,000 (exclusive of reasonable and customary costs). If an attorney seeks more than the statutory limit for fees, the attorney is regulated by the Rules Regulating the Florida Bar. The rules limit attorneys’ fees to 33 1/3% to 40% for any recovery up to $1 million; 30% for any recovery between $1 million and 2 million; or 20% of any portion of the recovery exceeding $2 million.

Average costs of preparing for a medical malpractice case can now average $50,000 to well over $100,000 and require years to prevail at trial. Plaintiffs are often left permanently disabled as a result of the incompetence or negligence of doctors and/or hospitals, and deserve to be adequately compensated for their suffering. By capping recovery in medical malpractice cases, states are not only affecting the compensation that plaintiffs receive, but also the opportunity for plaintiffs to get their day in court. Because preparation costs for medical malpractice cases are getting so high, bringing a case to trial presents a serious financial risk, as attorneys might not be able to recover their costs even with a monetary judgment. Statutory caps on medical malpractice verdicts for pain and suffering hurt those most deserving - mothers, children, and the elderly. Big wigs still get 100% compensation for the loss of earnings, so the corporate executive hurt by malpractice will still be compensated for all his lost earnings but the child and the mother won’t. Are children less worthy?

Originally posted at InjuryBoard by Ed Normand

Medical Malpractice Reform: The True Numbers?

Ed Normand — Mon, 05 Oct 2009 09:00:00 GMT

A recent article in TIME magazine about malpractice reform, available at: http://www.time.com/time/magazine/article/0,9171,1924501,00.html, caught my eye for several reasons. First, the article compares the varying levels of malpractice insurance costs for doctors throughout the nation. However, the article also contains incorrect facts about awards for noneconomic damages - money awarded for pain and suffering. Of note, the article, a Spotlight into Malpractice Reform, references that an obstetrician in Florida could pay five times as much as a colleague in Texas pays in malpractice insurance premiums. The reason behind this discrepancy? The author of the article blames it on the fact that "awards [for pain and suffering] are unlimited[]" in Florida, unlike Texas, where such damages are capped.

What the author of the article fails to realize is that this is wrong - awards in Florida for pain and suffering are capped. Beginning in 1988, the Florida legislature enacted NICA - the Neurological Injury Compensation Act, which was enacted as a way to compensate children who fit certain criteria. However, what the Act essentially did was limit the amount a child could recover from a doctor for a birth related neurological injury (most Ob/Gyn cases fall into this category), even if the doctor committed medical malpractice in the treatment of the child. Under NICA, a child gets $100,000 for a lifetime of pain and suffering. If the child dies, the death benefit is limited to $10,000, but if there is clear and convincing evidence of bad faith or malicious disregard of human rights, safety, or property, then a parent would not be prevented from suing the doctor. This is an almost impossible standard!

Florida has also placed a cap on medical malpractice awards in general, limiting noneconomic damages such as pain and suffering to $500,000 against medical practitioners such as doctors and nurses. For medical negligence that results in a permanent vegetative state or death, Florida has capped awards at $1,000,000. There are also separate caps related to hospitals and nonpractitioners. With respect to the medical negligence of nonpractitioners, Florida has capped noneconomic damages at $750,000 per patient, and where such negligence results in a permanent vegetative state or death, the maximum is set at $1,500,000. There are also separate caps in place for emergency services and care. For such services, recovery against medical practitioners are capped at $150,000 per patient, up to $300,000 recoverable by all patients from all such practitioners. Awards against nonpractitioner defendants providing emergency services is capped at $750,000 per claimant, up to $1,500,000 recoverable by all patients from all such practitioners. Florida statutes state these figures as the maximum amount a patient can receive, even if there are multiple negligent practitioners or nonpractitioners. For public health care providers, like the local county hospitals, there is also a more restrictive cap of $100,000 for all damages.

What needs to be the focus of health care in the United States is the reduction of costs. Part of the argument for capping malpractice awards has been the reduction of malpractice insurance premiums for doctors. Damages caps have been in place in Florida for quite some time, and malpractice insurance premiums have not been significantly reduced. Perhaps more attention should be focused on what else can be done to reduce costs, as the capping of malpractice awards is still not reducing health care costs in Florida and around the country. The real culprit is that there are bad doctors that commit multiple acts of malpractice but continue to practice. If the Department of Health and the doctors would police their own, rates would go down.

Originally posted at InjuryBoard by Ed Normand

Disney Discovery Denied In Monorail Death

Eddie Farah — Thu, 16 Jul 2009 21:52:35 GMT

Lawyers representing the mother of the 21-year-old pilot of a Disney monorail ,who died July 5, have been denied the opportunity to inspect all of the evidence into the death of Austin Wuennenberg.

The evidence would include video from surveillance cameras on the platform at the time of the crash as well as any audio communication or black box data recorders from the platform. That is the location where monorail workers would have been when the command for the pink train was given for it to move into reverse. The pink train crashed into the purple train, piloted by Austin. But Wednesday the petition to inspect the evidence so far was denied by an Orange County judge.

Attorney Chris Searcy had filed a Petition for a Pure Bill of Discovery that allows evidence to be turned over before a lawsuit is filed. Searcy also sought a list of witnesses and employees involved in the early morning operation of the monorail. The concern is that evidence may disappear at some point so Disney has been ordered not to destroy potential evidence in a civil case, which would be against the law.

Every night the monorails are brought into the shop for maintenance. In moving onto beams taking the train into a shop in the back, the monorails are supposed to go to a switch. Insiders say that in order to get to the back, the anti-collision system must be disabled. Instead of heading to the shop in back, the pink train may have gone in the opposite direction to the Transportation and Ticket Center.

The National Transportation Safety Board (NTSB) and OSHA, Occupational Safety and Health Administration are both conducting investigations which could take up to a year.

Attraction Magazine is reporting that on Wuennenberg’s Facebook page he wrote that he “has a 14 hour shift today” raising the questions about fatigue of the crew.

A man claiming to be the OSHA investigator in the case (complete with his photo and phone number and e-mail) says on the Facebook page, he is interested “if Disney changed any procedures. Some of the other areas I am interested is past accidents, past close calls, issues having to use monorails that are broken, communication issues”.

If a lawsuit is filed on behalf of Christine Wuennenberg, worker’s compensation law in Florida limits compensation to $150,000, but that is for dependants of those injured or killed, a parent would not qualify. The injured has to prove the employer deliberately intended to injure the employee or the employer engaged in conduct that was virtually certain to result in injury and death and failed to warn the employee.

That is an extremely high standard of proof required, even beyond mere negligence. Our condolences go out to the family of this young man who was simply working his way through college. #

Originally posted at InjuryBoard by Eddie Farah