Medical Malpractice and Personal Injury Law Blog

Medical Malpractice Case Dismissed for Lack of Proper Expert Witness

Posted by Briggs Bedigian | Feb 08, 2019 | 0 Comments

Sandra D. Essex brought a medical malpractice case against Dr. Michael Karr, an orthopedic specialist, Dr. William Stanton, a radiologist, and the Osceola Regional Medical Center. This medical center is a well-established 400-bed hospital located in Kissimmee. The case was filed in an Osceola County Court after Essex endured a broken femur while having surgery to replace a hip. Plaintiffs in this jurisdiction are required to present documentation from an expert witness to substantiate their claims of negligence. The court recently agreed with the defense's assertion that the expert witness used by the plaintiff did not meet the state requirements to qualify.

Radiologist's Defense

Defense attorneys for Dr. Stanton clearly opposed the allegations of negligence. They stated that he had adhered to the currently accepted standards for medical care within that profession. They further alleged that the plaintiff had demonstrated negligence that led to her injuries; therefore, any amounts that Essex recovers should be reduced proportionally according to the comparative negligence doctrine.

Formal Ruling

A three-member panel in an appellate court decided to uphold the findings of the lower court. They explained that Dr. Karr practices specifically in the realm of orthopedic surgery. The expert opinions presented to the court that support the plaintiff's allegations of negligence were completed by a physician who practices emergency medicine along with a nurse. Judge Brian Lambert wrote in the decision that this failed to satisfy the requirement that the expert is from the “same specialty” of practice.

Plaintiff's Responsibilities in Malpractice Claims

The statutes in Florida contain a specific set of requirements that plaintiffs must satisfy in claims of medical negligence. They must show that the medical provider breached the current “professional standard of care”. This standard is described as being the level of “care, skill and treatment” that is appropriate based on the specific circumstances. The outcome of the provider's care (results) must be shown to not have been foreseeable.

Requirements for Experts

The expert opinion that is required to support the plaintiff's allegations of negligence must be that of someone who is familiar with the “prevailing professional standard” for care in that profession. The following requirements apply:

  • Must possess a current license in the healthcare profession
  • Must work within the same specialty as the professional being evaluated
  • Has worked within the profession for the prior three years

The Doctrine of Pure Comparative Fault

In allocating negligence in cases of medical malpractice in Florida, they recognize the doctrine of pure comparative fault. There are approximately 11 other states with a similar provision. The doctrine states that an award for damages resulting from injuries that are granted must be reduced by any proportional fault attributed to the plaintiff. Triers of fact (typically juries) may assign percentages of fault among the plaintiff and any defendants. If the plaintiff were found to have demonstrated negligence that is equivalent to 10% of the total—the award would be reduced by that percentage.

Critics of the pure comparative fault doctrine say that it has the potential to run contrary to logic. For example, a plaintiff could potentially pursue recovery despite being found 99% at fault in the incident that caused injury. For this reason, many states have moved away from the pure form of the doctrine and implemented a modified version. Most modified versions prevent the plaintiff from pursuing damages if they are found to be more than 50% at fault in the incident that caused their injuries.

About the Author

Briggs Bedigian

H. Briggs Bedigian (“Briggs”) is a founding partner of Gilman & Bedigian, LLC.  Prior to forming Gilman & Bedigian, LLC, Briggs was a partner at Wais, Vogelstein and Bedigian, LLC, where he was the head of the firm's litigation practice.  Briggs' legal practice is focused on representing clients involved in medical malpractice and catastrophic personal injury cases. 

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