Health Care Liability
Law Alerts
HEALTH CARE LIABILITY
Florida
By Jennifer A. Englert, Esq. (jaenglert@mdwcg.com or 407-420-7377)
The Court Found That Even If The Presuit Requirements Were Not Followed By The Defendant In Regards To The Production Of Records, Plaintiff Still Had An Obligation To Enter Into A Good Faith Investigation Regarding The Claim.
Martin Memorial Medical Center, Inc. v. Dorothy Herber, 33 Fla.L.Weekly D1642 (June 25, 2008)
In this case, the defendant hospital did not provide records pursuant to a request made under §766.204 within ten days. Because they waited more than ten days, the court found pursuant to the statute that an expert affidavit did not have to be furnished. However, the plaintiff still needed to show that a good faith investigation was made and the claim was reasonable, whether she had an expert affidavit or not. Therefore, the case was remanded to the trial court for a hearing to determine whether there was a reasonable basis for her claim and if the notice of intent showed reasonable investigation requirements were met.
The Court Found That An HMO Settlement Did Not Result In A Setoff In A Medical Negligence Case.
Coopersmith v. Althea McCormick, 33 Fla.L.Weekly D1730 (July 9, 2008)
This was a wrongful death and medical malpractice action where the plaintiff sued several doctors and her HMO. They attempted an action against the HMO for an independent tort of active negligence for the HMO not correcting the negligence of the doctors that it had contracted with. The court found this was simply derivative liability and a setoff of the settlement the HMO made prior to trial was appropriate. The court found that the HMO was not truly a party defendant as its liability was derivative; therefore, there had to be a setoff in this matter.
The Court Overruled A Trial Court Order Allowing The Sharing Of Confidential Information For A Medical Device Designed By Cortis And Johnson & Johnson In A Products Case.
Cortis Corporation and Johnson & Johnson v. Sean O'Shea, 33 Fla.L.Weekly D1923 (Fla. 4th DCA, August 6, 2008)
The plaintiff in this case attempted to share confidential information that was given to him pursuant to a stipulation of confidentiality and protective order in a case involving an alleged defective stent. Several attorneys throughout the state and the country had contacted him to obtain the confidential information to use to determine whether they had a colorable claim or not. The trial court allowed him to share the information, but the Fourth DCA found that he could not as this would certainly be "cat out of the bag" discovery and the plaintiff had not made a showing of why such widespread sharing of discovery would be necessary.
Pennsylvania
By Sean Stadelman, Esq. (610-354-8465 or ststadelman@mdwcg.com) & Harriet Anderson, Esq. (610-354-8468 or hbanderson@mdwcg.com)
Commonwealth Court Rules That Writ Of Summons Does Not Trigger 180-Day Statutory Period for Physician to File For Coverage Under MCARE.
Cope v. Insurance Commissioner of Commw. of PA, 2008 Pa. Commw. LEXIS 384, 8-18-08
The Commonwealth Court reversed the Pennsylvania Insurance Commissioner's finding that service of a writ of summons upon a physician triggers the 180-day time period that the physician has to alert MCARE of the pending suit. Section 715 of the MCARE statute requires providers to submit information, such as the starting and ending dates of the alleged malpractice, the nature of the treatment giving rise to the claim, the principal injury alleged and the severity of the injury. The Commonwealth Court disagreed with the Insurance Commission and held that the bare writ of summons contained none of the required information. The summons did not by itself provide notice that the claim was eligible for Section 715 coverage and thus did not trigger the 180-day notice period. The physician was correct in waiting to receive sufficient notice in the form of a complaint before filing for MCARE coverage.
