Frequently Asked Questions
Below are answers to some questions frequently encountered by the attorneys at McEwan, Martinez, Dukes & Hall, P.A. as they advise and represent insurance companies and their policyholders, including physicians facing medical malpractice lawsuits in the state of Florida. If you need advice and representation on a medical malpractice claim, health law claim or other Florida civil litigation matter, please contact our office to speak with one of our attorneys.
Are Florida juries now unlimited in the amount of non-economic damages they can award in medical malpractice cases?
The Florida Supreme Court in McCall v. U.S. held that the statutory cap on wrongful death noneconomic damages is unconstitutional. It is important to note that the court in answering this question rephrased it and limited it to cases of wrongful death. The damages on cap is apparently still in place for other allegations of medical malpractice causing personal injury. Regardless of the presence or absence of a cap on damages, our firm vigorously defends our clients on issues of both liability and damages in medical malpractice claims.
Shouldn’t the doctrine of informed consent shield against medical malpractice claims?
It is certainly important to obtain a patient’s informed consent before initiating any course of treatment or medical procedure, both as a standard of medical practice and as a means of legal protection. Obtaining informed consent and waivers, however, may only provide coverage against complications that may arise during the normal course of treatment and that are reasonably contemplated within the informed consent. Acts that are considered medically negligent or below the accepted medical standard would not normally form a basis of the patient’s consent. Where a negative outcome is one that could have arisen as a consequence of the procedure within the patient’s informed consent, a question of fact dispute may be present which needs to be resolved through litigation.
When should a claim be submitted to arbitration? Is the decision of the arbitrator binding?
Arbitration may be pre-selected as the means for dispute resolution based on the terms of an underlying contract or agreement between the parties. Arbitration provisions are common in construction contracts, insurance agreements, and healthcare contracts, and they are becoming increasingly common across the board. In most instances, the arbitrator’s decision is binding upon the parties, but the terms of the arbitration agreement or the decision of the parties to enter into arbitration would determine whether the arbitration is binding or non-binding. Even after binding arbitration, there may still be the opportunity to appeal a decision in court based on a number of grounds. If you have the option whether to submit a dispute to arbitration or litigation, consult with your attorney about cost factors, risk factors and other issues relevant to the decision of whether to arbitrate or litigate.
Isn’t mediation ill-advised because it merely provides the other side with ammunition they can use in court?
This is a common criticism of mediation – that it is used as a means of discovering the other party’s strengths and weaknesses without any intention of settling the dispute in mediation, but only to improve one’s position at trial. If this is a concern, the terms of the mediation agreement can state that any information provided during mediation is to be kept within the mediation only and not used at trial, but one should be very careful to fully understand how such a provision is worded and what the parameters are before offering any confidential information in the mediation that would otherwise be undiscoverable in litigation. Of course, it goes without saying that mediation is only successful when all the parties entering the mediation are genuinely interested in resolving the dispute without litigation if possible