Rene Perras | 00:04 – 00:45 (A Deep Dive into Medical Errors with Lawyer Joe Osborne)
Hello and welcome everyone to another episode of Coffee with Q. I’m Rene Perras, your host and legal news reporter. – Coffee with Q is dedicated to helping consumers find justice. Today we have the pleasure of speaking with Joe Osborne, a seasoned and accomplished medical malpractice trial lawyer, with extensive experience in advocating for patients’ rights. Today’s show will be focused on understanding medical errors. Misdiagnosis when dealing with healthcare facilities and medical professionals. Joe, our guest, is an expert in this area of law. Welcome, Joe, and thank you for joining us today.
Joe Osborne | 00:45 – 00:47
Of course. Thank you for having me.
Rene Perras | 00:47 – 01:02
Wonderful. I guess to jump right in, maybe we can have a little bit of an introduction to medical errors. Can you explain what constitutes a medical error and why they occur in the healthcare system?
Joe Osborne | 01:02 – 02:31 (When Medical Errors Cross the Line Into Malpractice: Insights from Attorney Joe Osborne)
Sure. Medical errors come in all shapes and sizes, meaning that when we see errors committed in the medical community, they can involve the misinterpretation of studies, the lack of appreciation of significant clinical findings. The misdiagnosis of certain medical issues and health problems. Lack of communication from healthcare providers to patients, failure to follow up on testing that may be important to make a diagnosis.
The key is that not all medical errors constitute medical malpractice. Sometimes judgment calls or bad things happen from a progressive disease or illness. That isn’t necessarily malpractice. Medical malpractice that flows from medical errors. Really involve what we call a deviation or falling below the standard of care. And that’s where a doctor or a hospital or a nurse can, commits either an error in doing something wrong proactively or fails to do something that other similar health care providers as identify as being neglectful or negligent. And it’s something that along those lines from the standpoint that rises to the level of You know, we deem to be negligent care is really where medical errors form the basis of a potential legal claim.
Rene Perras | 02:31 – 02:38
How do medical errors typically impact patients? And their families and how common are they?
Joe Osborne | 02:38 – 04:05 (When Medical Errors Become Malpractice: Attorney Joe Osborne Explains the Difference)
Medical errors are something that happened every day in a, health setting. In doctor’s offices, in hospitals and your surgical center’s, but again, Not all medical errors are, malpractice. There are things that happen in medicine that just sometimes are judgment calls. Doctors and hospitals do the best they have with the clinical information provided. That may be the subjective information they have on clinical exam, the objective information they have from data and testing. And they make judgment calls that ultimately may turn out to be not right. And that not necessarily is an error. But it’s something that with the best information given, they make the best decision possible under the circumstances. But medical errors, real medical errors where tumors are missed on x-rays, stress test results are reading correctly, the. Something on your skin that should be highly suspicious for melanoma is missed. Things that really can impact the patient’s overall ability to diagnose and treat something early or they’re the recipient of bad treatment really are the medical errors that we concern ourselves with.
Rene Perras | 04:05 – 04:13
Can you share a case where medical hair had significant consequences and how was it addressed legally?
Joe Osborne | 04:13 – 05:41 (Attorney Joe Osborne Shares a Case Where a Medical Error Led to Legal Action)
Sure. I had a case not too long ago where, you know, unfortunately a surgeon who had been Well, he was a small, he was like a small aircraft pilot in his spare time. And he had been involved in a very rough landing. Call it a plane crash, where he was hurt in the crash. He had actually hurt his neck and his arm in the crash. He failed to disclose that to the hospital he worked in. And my client went in for a valve, a simple valve replacement into this hospital. And during the course of the surgery, the witnesses in the operating room identified the patient, I mean, the surgeon being in extreme pain, and committed what they called therapeutic misadventure where he had taken a scalpel and in, incredibly punctured the heart of my client during the course of the surgery. And, directly testified after the fact that he shouldn’t have been in the operating room. He was in too much pain and, you know, my client was the victim of that. The medical examiner ruled it, the cause of death, to be medical therapeutic misadventure. And the doctor was deemed to be the direct cause of the patient’s death. We brought that suit both against the hospital and the surgeon for the hospital for failing to supervise that. And it led to, obviously, a catastrophic award.
Rene Perras | 05:41 – 05:57
That’s an interesting case, puncturing a heart. Is there a way to prevent medical errors? Is there a standard of care? What measures can hospitals and healthcare professionals or providers take to minimize the occurrence of medical errors?
Joe Osborne | 05:57 – 08:21 (Missed Diagnoses and Lost Opportunities: Joe Osborne on the Critical Role of Follow-Up in Preventing Medical Malpractice)
Well, I think what’s important is that you know, follow-up systems in the healthcare setting are extremely important. So if you go in for a test, and there’s a question about, you know, one way or the other about a diagnosis or a problem. Oftentimes, the communication to the patient of the need for follow-up testing, follow-up interventions. You know, other medical consultations are extremely important. And we often see cases where, let’s say in a lung cancer case, someone has a chest x-ray, and there’s a suspicious finding on the chest x-ray. But the patient never receives that information. It’s not communicated to him or her. And months and months and months go by. And then ultimately, there’s a problem that’s diagnosed as being a lung tumor. And when we go back and look at the prior care, here was this x-ray that if it had been communicated to the patient. Perhaps you need to follow up films. Perhaps you need a biopsy. Perhaps you need to go see a pulmonologist. Those types of failures to communicate with patients. Oftentimes form the basis of malpractice cases for us because it’s lost opportunity. It’s lost opportunity for patients to receive treatment, to get further diagnosis, and ultimately to initiate care. In a timely manner to give them the best chance to treat their disease.
So the follow-up systems within the hospitals and the doctor’s offices become extremely important because when things fall through the cracks. They can have devastating consequences for patients and the facilities. The other thing that we suggest are overreads. Again, using my lung cancer example. If a radiologist reads a study, have it overread. Have somebody else take a look at it. The overreads themselves oftentimes pick up things that an initial review may not. And in a world where time is of the element in terms of lots of diseases that we live with on a daily basis in this world, whether it’s heart disease or cancer, or other similar, disease processes oftentimes you know, Timely, quick management and intervention becomes important to give patients the greatest chance of long-term survival.
So, over-reads where you have a second board-certified radiologist, in my example, look at a film, you may get a second opinion about what’s there and what the proper management plan might be.
Rene Perras | 08:21 – 08:35
Is it clear for people who’ve gone through some kind of surgery that there was an error? Is it sometimes not as clear as one might think?
Joe Osborne | 08:35 – 09:33 (The Hidden Danger of Delayed Diagnoses)
Absolutely. I mean. In our statute of limitations, we have what’s called a notice provision, which says that you have to bring a medical malpractice case in Florida within two years when the malpractice was committed or. Two years when you’re or within two years of when you’re on notice that a problem occurred. So in my lung cancer example, but that victim or that individual patient may not know or wouldn’t know under the scenario I gave that the chest x-ray from months before had a suspicious finding on it. Oftentimes, it’s not till later. Many months many months or sometimes years later, when the disease process actually advances, And there’s a diagnosis that we look back at the medical records.
So we look back at the screening. We look back at the testing and say, ha. This was missed a long time ago, and patients aren’t going to know that a lot of times, unfortunately, until it’s too late.
Rene Perras | 09:33 – 10:02 (Florida Trial Lawyer on a Mission to Fight Medical Malpractice)
To find out more about Joe Osborne, Florida trial lawyer with Osborn and Francis, You can visit www.realtoughlawyers.com or you can call Joe directly at 561-301-3292. Thank you, Joe, for coming on the show. Your experience with us today is always impressive. It was certainly helpful for me and I’m sure for our audience as well.
Joe Osborne | 10:02
Thank you. Thank you for having me.
Osborne & Francis-Exploring Medical Misdiagnosis Part 2
Rene Perras | 00:05 – 00:43 (Inside Medical Malpractice: Legal Expert Joe Osborne on Misdiagnosis and Justice)
Hello and welcome everyone to another episode of Coffee with Q. I’m Rene Perras, your host and legal news reporter. Coffee with Q is dedicated to helping consumers find justice. Today we have the pleasure of speaking with Joe Osborne, a seasoned and accomplished medical malpractice trial lawyer. With extensive experience in advocating for patients’ rights. Today’s show will be focused on understanding medical errors and misdiagnosis. When dealing with healthcare facilities and medical professionals. Joe, our guest, is an expert in this area of law, and I’d like to welcome him. Good to see you, Joe.
Joe Osborne | 00:43 – 00:45
Thank you for having me.
Rene Perras | 00:45 – 00:52
Okay, so… I guess what is a misdiagnosis and how is it different from other types of medical errors?
Joe Osborne | 00:52 – 03:36 (Understanding Misdiagnosis: When Doctors Miss the Warning Signs)
It’s actually a great question. A misdiagnosis in a medical malpractice setting typically is a wrong conclusion. Or a wrong diagnosis despite strong evidence otherwise. What do I mean by that? A diagnosis in the medical setting often involves really two things. You have both your subjective and objective components of a diagnosis, which oftentimes together form the basis of how the doctors make treatment decisions. What do I mean by that? The subjective information that a doctor may have would include, for instance, a clinical examination. When they feel your neck, or they listen to your heart, or they check your groin, or they do a reflex test. Those are what are the subjective findings of a clinical evaluation. And those are just a few examples.
Then you have your objective information. That is information like what does your blood work show? What do your x-rays show? What do other laboratory testing show? And then the subjective information of the clinical exam and the objective information of the testing. Is taken together. To form what’s called the differential diagnosis. It’s a very common tool in medicine where based upon the information provided on the clinical exam, based upon the information provided on the objective evidence. In the differential, what is potentially the most dangerous diagnosis for this patient? And you start with the most dangerous diagnosis. In your mind that’s potentially relevant as a physician, and you work your way down, and you exclude those things. That you think are most impactful to the patient.
And in a misdiagnosis, at least in this type of setting, oftentimes, it’s where physicians either don’t appreciate overlook or misinterpret either the clinical examination and or the objective information that is provided on that patient where something is drastically missed. As an example, let’s say there are certain enzyme testings that you can look at in the laboratory to suggest somebody might be at risk for a heart attack. If those heart attack enzymes are extremely elevated and someone is having chest pain, and the doctor doesn’t appreciate that those enzymes are significantly high or misses the fact that they are high and tells the patient his chest pain is likely due to heartburn and sends him home, then that patient has a heart attack. That is a significant misdiagnosis because the cardiac enzymes are typically a big red flag of an impending problem. That’s just an example of the information that the physicians use to try to come to you the right diagnosis, but how sometimes a misdiagnosis can occur.
Rene Perras | 03:36 – 03:41
What are some common causes of misdiagnosis and medical malpractice?
Joe Osborne | 03:41 – 06:49 (35 Years of Insight: The Most Common and Costly Misdiagnoses)
So some of the most common causes can be you know, one of the things I’ve been doing for a very long time, of course, has been doing medical malpractice. Just as a side note, I defended doctors and hospitals, you know, going back probably seven, eight years in the beginning of my career in malpractice cases. And have been representing patients and their families in now for probably 27, 28 years.
So. I have almost 35 years of experience handling medical malpractice cases from both sides. And the range of potential cases that you can imagine involving the human body and the various medical conditions that we see goes… It’s enormous. We have literally looked at thousands and thousands of potential medical malpractice cases. Some of the ones that we see, that, tend to be repeats are… On clinical exams or on mammograms, either palpable lumps in the breast. That a clinician either misses or one clinical exam or the mammogram fails to identify. I shouldn’t say that. The mammogram does identify the lump, but the radiologist misses it.
So, lumps in or around breast tissue are something that are extremely important to identify and diagnose as quickly as possible. The survival statistics with breast cancer are very clear. Timely diagnosis matters, and the earlier you catch it, the greater chance of survival. So when those types of things are missed, they can be catastrophic for people. Heart rhythm irregularities seen in stress tests or on other cardiac evaluations that when a heart is not working appropriately, it’s incredibly important for doctors to identify that and get patients into hospitals. And whether it’s on a stress test or otherwise, I’ve had many cases where poor folks have walked out of doctors hospitals in hospital or hospitals and have been dead in 72 hours because things were missed either on EKGs or echoes or stress tests.
In a dermatology setting, we’ve seen in the last five to 10 years, as you can imagine, the failure to appreciate skin lesions. That, you know, melanoma is a deadly disease that has, again, it can be impacted by early diagnosis and treatment. So if your dermatologist doesn’t appreciate something, fails to see it, doesn’t diagnose it through biopsy or otherwise, then, you know, the… the consequences, again, can be difficult for patients.
So those are just some examples. Of some common misdiagnosis that we see in our practice, where we’re evaluating those cases. They’re not always, they don’t always rise to the level of malpractice. It depends on the circumstances, but those are three examples of things we typically say.
Rene Perras | 06:49 – 06:57
What are the legal implications for a healthcare provider or medical professional when a misdiagnosis actually occurs?
Joe Osborne | 06:57 – 09:45 (Understanding Medical Negligence: How Outcomes and Errors Intersect)
So the legal implications are that if the misdiagnosis rises to a deviation from the standard of care, and that’s important, that is the definition of a medical malpractice negligence claim. Where again, it’s not just a bad judgment. It’s just not a poor outcome. People die in this world, you know, not just because something bad happens, but where we go back and we look at the care and we say, there was a deviation from the standard of care that led to this mistake. And how do we define that? That’s typically defined by us as, for instance, let’s say in my radiology setting, if we get a board certified radiologist who has nothing to do with the case, look at the study and say, did Dr. Jones miss this lump on the mammogram? And he says, it’s clear as day. I don’t know how he missed it. Any radiologist should have seen that this is a deviation from the standard of care, then that gets us home in terms of saying, okay, this is just not a mistake. This is just not Monday morning quarterbacking. This is just not a, this is just not a process of the disease process. But we have a clear deviation from standard care here that forms the basis of a potential malpractice claim. And, those that’s the implication. Those are the ultimate consequences for the provider.
Now, a key component to that is once we prove a deviation from the standard of care, we have to be able to prove what we call causation and that it actually made a different in the patient’s outcome. So, for instance, in my example, just stick to the same example, if a study or I’m sorry, if a chest x-ray was done and there’s a suspicious finding there, and, you know, months and months go by until lung cancer is diagnosed and then there’s a strong argument that an earlier, detection diagnosis probably would have made a difference in the outcome. Under the same scenario, If the chest x-ray showed the lesion but two weeks later the patient was diagnosed otherwise, you still may have a deviation from the standard of care. But did it really impact the overall outcome? And that causation and impact analysis becomes just as important as whether or not something was done wrong, because without the impact and the causation, the malpractice in a vacuum doesn’t do us any good from a legal standpoint.
So from a healthcare provider’s perspective, when we see something that’s a bad outcome, something that went wrong, there’s questions about that, we really have to look at those two components. Was there a deviation from the standard of care? And is there causation? Meaning, did that malpractice ultimately cause or change the outcome of a patient’s course?
Rene Perras | 09:45 – 09:51
What rights do patients have if they believe they’ve been misdiagnosed?
Joe Osborne | 09:51 – 11:39 (Your Health, Your Responsibility: Why Second Opinions Save Lives)
Well, they have a lot of rights. And one of the things I would highly suggest for any patient is be proactive in your care. There is nothing more important in your care than you. And especially in, you know, if you’re in a big health system, if you have symptoms, significant medical problems, which you see doctors all the time, be proactive, ask questions. Get second opinions. Second opinions oftentimes are the heartbeat of making sure that your care and treatment is appropriate. And as incredibly as it sounds, even in today’s world, you know, many doctors have different opinions about things, even faced with very similar information. And we strongly suggest that people always go for second opinions.
You know, if your dermatologist says when you have a skin lesion, you’re worried about it, your dermatologist says, don’t worry about it looks fine to me. Make an appointment with another dermatologist. Have somebody the following week look at it. To be sure that information is right or that belief is correct because If that physician turns out to be wrong and you develop a melanoma, that decision could ultimately cost your life. So be proactive about second opinions. Be proactive about the need for follow-up testing. If you’re told you need follow-up testing, if you need follow-up labs. Go get them right away. Make sure there’s no delay in terms of getting additional recommendations complied with from a testing standpoint. Make sure you get your yearly screening, whether it’s colonoscopies or mammograms or whatnot. But, you know, there are lots of things that can go wrong in medicine. But, you know, be the captain of your own ship and make sure that you’re on top of the things that are needed for your care.
Rene Perras | 11:39 – 12:03
What steps can patients take to reduce the risk of being misdiagnosed? And you know, misdiagnosed when it’s missed. So it’s hard to evaluate it. You’ve talked about being proactive and getting second opinions. Are there some clear signs that could help people say, you know what, I need to look at this?
Joe Osborne | 12:03 – 15:08 (When a Medical Mistake Becomes Legal)
Yeah, and that’s those great questions. And I would answer that question by saying a lot of the same things I said to the last question, or my response to the last question, which is be proactive, get second opinion, stay on top of follow up testing, stay on top of yearly screening. And communicate with your health care providers, I think is the other thing I would add You know, a lot of people have what they call, you know, white coat fear or they get white coat hypertension because they get nervous being in doctor’s offices or they get scared that they’re going to hear bad news. But communication with your providers is really important. There are studies that show that people that are in direct communication with their doctors and ask the right questions, oftentimes get better care and treatment. It’s just the way it is. It should be a collaboration. It should be a collaboration with your physician and your healthcare providers. Not somebody just sitting there on a stool and listening to advice. It really, you really need to be a collaborative participant in your care in order to make sure that, you know, things are what they need to be.
And if there’s any apprehension about, you know, was this malpractice or was the diagnosis missed or was there an error? The best way to look at it is a lot of things we’ve been talking about this morning, and that is… If a doctor did something that didn’t lead to any consequence for me, So things happen in hospitals all the time. Nurse forgot to take my vitals. I got the wrong dose of medication. I was supposed to be checked neurologically twice last night and nobody came around. They ordered a neurology consult for me and the neurologist, it’s been two days, he hasn’t been here. Those are the kind of things that shouldn’t happen. And they potentially constitute medical errors. But patients s hould ask themselves, did it lead to any consequences? Meaning, did anything bad happen to me as a result of that?Yeah, maybe I was uncomfortable. Yeah, maybe it angered me. Yeah, my emotional response wasn’t good. Or, you know, maybe it led to some problem. I got sick, but now I’m better.
If what someone perceives to be an error doesn’t ultimately lead to any real permanent injury or outcome, then those are not the type of things that really, you know, from a medical malpractice standpoint, we can do anything about. It doesn’t excuse them, but they’re really not things that somebody probably should take to the next level and say, I should have someone look at this. However, the reverse is true. If something like that happens, the neurologist doesn’t come for two nights and you have a stroke in the hospital. Because you did not get an evaluation and now you’re in a rehab facility and you’re paralyzed on the left side of your body. That’s something we need to talk about. And that’s where someone should come see us. So where what is perceived to be an error or malpractice or a deviation from standard care leads to some significant ultimate outcome. Those are the things you need to consult with. An attorney like us ASAP.
Rene Perras | 15:08 – 15:34
Well, that’s really interesting. Something comes to mind. You reviewed thousands of cases you know, over your many years. How often do people bring in their own advocate? You know, they bring a friend to, you know, any of their medical appointments when they meet with healthcare professionals. Is that a common occurrence or is it? People go solo?
Joe Osborne | 15:34 – 16:54 (How Family Support Strengthens Medical Cases)
Most of the time, usually it’s family members. Usually it’s family members who, especially with elderly patients, you know, whether it’s sons and daughters or brothers and sisters, we typically see. We simply see that kind of support in the care and support in whatever medical fight that patient may be dealing with. And they become very important resources for us in the cases.
You know, medical records don’t always tell the whole story. You know, Mrs. Jones may come to us and say, I really complained. I really complained to the doctor that day that I couldn’t move my left arm. And we get the medical records. It’s not in there. But the daughter was there at the visit and said, that’s why we were there. Not only did my mom tell the doctor that, but I told the doctor that. Here’s the specificity of which we told the doctor these complaints. We go from it not being in the medical records, and therefore it didn’t happen, to now not only support and corroboration, but… A telling story as to why maybe this doctor didn’t pay attention to these complaints. Not only did maybe he not appreciate it, he didn’t record it. And we have great corroboration and testimony that this was something that was brought directly to the doctor’s attention. And if he had appreciated it, maybe the heart attack wouldn’t have happened, you know, a couple of days later.
Rene Perras | 16:54 – 17:39 (Closing Thoughts: The Importance of Trusted Advocates & Connecting with Joe Osborne)
Well, in an example like that, it just shows how important to always bring someone that you trust to these medical appointments. They might hear something that you didn’t hear or you didn’t see, and the doctor I didn’t hear or didn’t see.
To find out more about Joe Osborne, Florida trial lawyer, With Osborne and Francis, you can visit www.realtoughlawyers.com Joe always takes his calls. You can reach him at 561-301- 3292. Again, thank you, Joe, for coming on the show. Your experience with us today is always awesome. It was certainly helpful for me and I’m sure for our audience as well.
Joe Osborne | 17:39
Thank you very much for having me.
Osborne & Francis Addressing Doctors’ Negligence on Coffee With Q Part 3
Rene Perras | 00:05 – 00:40 (Intro: Medical Malpractice with Joe Osborne)
Hello and welcome everyone to another episode of Coffee with Q. Coffee with Q is dedicated to helping consumers find justice Today we have the pleasure of speaking with Joe Osborne, a seasoned and accomplished medical malpractice trial lawyer, with extensive experience in advocating for patients’ rights. Today’s show will focus on understanding medical errors, misdiagnosis, when dealing with healthcare facilities and medical professionals. Joe, our guest, is an expert in this area of law. Welcome, Joe. Always good to see you.
Joe Osborne | 00:40 – 00:42
Thanks for having me, Rene.
Rene Perras | 00:42 – 00:49
Okay. So how do we define medical negligence? And what are its key components?
Joe Osborne | 00:49 – 02:38 (Joe Osborne Explains the 3 Components of Medical Negligence)
So there are really three factors that you need to have in order to have a medical negligence case. The first is what we call a deviation from the standard of care, which means that the error made by the physician, whether it’s proactively doing something wrong or failing to do something that should have been done, is so egregious that other similar health care providers deem it to be negligence as opposed to making a mistake.
And that is really the opinion of what we call similar healthcare providers who believe that whether or not it’s misinterpreting lab results, missing something on clinical exam. Rises to the level of a deviation from the standard of care, because we’re all entitled to the same level of care, regardless of where we come from, the same level of care by our health system here in the United States. And then we have to be able to prove, assuming that there is a deviation from the standard of care. That deviation or that negligent act caused, causation, ultimately the third thing we need, which is significant damages.
So those are the three elements of a malpractice case. A mistake. Either by doing something wrong or failing to do something that rises from, rises to the level of a deviation from the standard of care, number one. Number two, causation, where we can show that negligence caused. Number three, significant impact on the patient’s outcome, whether or not it actually caused them immediate harm or over time, some other type of harm like failing to timely diagnose and treat a condition or losing the opportunity to successfully diagnose and treat a problem successfully.
Rene Perras | 02:38 – 02:44
What are the challenges involved in proving medical negligence in court?
Joe Osborne | 02:44 – 05:37 (The Complexities of Medical Negligence Cases)
So there are some big challenges. And really, it starts with, what I’ll call proving the severity of the error that’s in play. And oftentimes, that comes down to an analysis of is this simply a poor outcome? Meaning was there, you know, just something bad that happened to this patient or, does it really rise to the level of a deviation of the standard of care? And we have to really rely on our experts and similar healthcare providers. To help us kind of weed through those issues.
If it’s a urology case, I need a urologist to look at the case who’s independent from everything that happened and give me an opinion about whether or not they think the urology care rose to that level of negligence and a deviation. You know, oftentimes cases that we think really may have some teeth to them and merit, turns out that there were some underlying issues and this was really the result of a progressive illness. That, you know, oftentimes, regardless of maybe whether mistakes were made along the way, we’re not going to be able to change the outcome of the patient’s course.
A lot of diseases in this world, unfortunately, are unpreventable. So sometimes when a disease is diagnosed or should have been diagnosed, really doesn’t make a difference ultimately in the outcome. Pancreatic cancer is one of those horrific diseases that you know, regardless of the timing of diagnosis, unfortunately, the outcome often does not change.
So if patients come to us and say, well, I had stomach problems, and I had issues, and I went to my doctor, and then he blew me off. And then two months later, I was diagnosed with pancreatic cancer. Regardless of that delay, ultimately we know that even if the patient had been diagnosed two months sooner, the ultimate outcome would not have been any different because early detection It’s just not been shown to impact survival with a condition like pancreatic cancer and unfortunately many other diseases.
And then ultimately, you know, people die for lots of different causes. So we may have what we believe to be a great case. In terms of either poor care provided or the absence of care.
And then ultimately, it leads to some issues, but then maybe a patient dies from something else. They may, you know, or maybe they had underlying diabetes, or they had, you know, a brain tumor or an aneurysm, and they may die from some other cause that’s not. It has nothing to do with the medical care and treatment provided.
So oftentimes they can become very kind of sticky soups to get through, meaning that there’s lots there that we have to weed through in terms of figuring out. What are the other issues surrounding the potential claim? And can we make it clear enough to where what we think happened is really why things turned out the way they did.
Rene Perras | 05:37 – 05:52
Interesting. You talked about witnesses. Expert witnesses. How important are expert witnesses in medical malpractice cases and what role do they play?
Joe Osborne | 05:52 – 07:45 (The Role of Experts in Medical Malpractice Claims)
So without an expert in a malpractice case, you have no case. So for instance, in Florida, we have what’s called chapter 766 of the Florida statutes, which means that if I have a medical malpractice case that I think has potential. The only way I can bring that case, and let’s say it’s against a dermatologist, I have to go get a third party independent objective dermatologist to look at the case and sign an affidavit for me that says, after he or she has reviewed all the records and the information, they believe there’s a good faith basis for a medical malpractice case, meaning that the physician in question deviated from the standard of care.
Without that affidavit, I cannot move forward with the case. It’s one of the prerequisites and the initial prerequisite to bring a malpractice claim to and then what I have to do is I have to take that affidavit and send the potential defendant doctor what’s called a notice of intent to initiate litigation. Where I attach the affidavit, I send them a letter, I explain what we think they did wrong, they can see the corroborating affidavit.
And then under the statutes, they get 90 days to do what I just did. Evaluate the records, figure out if there’s a case. And at the end of the 90 days, make a decision as to whether or not they think I have a case or not. Deny my claim. Want to try to settle. 99% of the time, regardless of how strong we believe the case is, they say there’s nothing, they did nothing wrong. They deny the claim. And then we can move forward and file our action. But if we went down to the courthouse and just filed a medical malpractice case, it would be dismissed on its ear. Because without the corroborating affidavit from the expert, you’ve not met the prerequisites to bring the case and you violate the statute. So without experts, there are no case. Or cases.
Rene Perras | 07:45 – 08:04
You bring in an expert, the other side has their own expert. How do we figure out Is there a standard for experts? You know, you can’t just bring in anybody into these types of situations. So how does that work?
Joe Osborne | 08:04 – 10:44 (Expert Standards in Malpractice Cases)
Good question. So in Florida, we do have some requirements for experts. They can’t be retired. They have to be still practiced. They have to be engaged in the active practice of medicine. They have to register with the state as being qualified to give an opinion. You know, in a particular case. And oftentimes, And I’ll use the… We can use the, you know, the example of, let’s say, the lung cancer case. Even though that may seem like it’s limited to one issue, was the film read the right way or not? That case can require multiple experts in multiple specialties, as an example. I’m going to need a board certified radiologist to look at whether or not whether the film was missed. I’m going to need an oncology expert to look at the timing of diagnosis and the underlying type of tumor and talk about whether or not. From an oncology perspective, did the six or eighth month delay make an ultimate difference in the outcome? And that would have to come, those opinions would have to come from… An oncologist who clinically takes care of lung cancer patients on a daily basis. I’m probably going to need a pathology expert because I’m going to have to get the tissue from the tumor that’s removed and look at it from the standpoint of how aggressive was the tumor. Because they’ll have a pathologist who will look at it and say, “This was a deadly tumor. The timing of the diagnosis didn’t matter.” Even if you believe Dr. Jones missed the tumor on the film, the underlying pathology shows this was a very aggressive tumor. We may need to have experts in terms of ultimately what the impact is if the person has passed away. What are the economic impacts to that person’s estate? We may need an economist, we may need, you know, other financial type people to look at what the ultimate economic impact is. On the family and the estate, especially if it was a young person who was still working.
So that one case literally could turn into a four or five expert case. And oftentimes, that is why medical malpractice cases are extremely expensive to bring. And, you know, the question is, how do you figure out who is, you know, they’re going to have their people saying their stuff, and we’re going to have our people saying, you know, the opposite. And ultimately, the jury decides, the jury listens to the experts, they hear the testimony. And they decide based upon credibility, what they believe the medicine ultimately to be, and you know, what experts they think, make the most sense. Ultimately it’s their decision about what experts they think are right or wrong and whether or not we win the case or not.
Rene Perras | 10:44 – 10:52
Can you discuss a notable case of a doctor’s negligence you’ve worked on and what its outcome was.
Joe Osborne | 10:52 – 14:12 (Fatal Delivery Error: A Case of Medical Negligence in Labor)
Well, this is pretty amazing. I hope not to scare people, but… We see a lot of cases. I’ve handled a lot of labor mismanagement cases. Where OBGYNs in the face of baby deliveries, especially first-time mothers who are delivering children, often will have protracted labor courses. Once women have had a baby or they have their second or third child, typically labor is not as difficult over time than when it’s delivering your first child.
So I’ve handled many cases where things were not recognized during the course of labor and delivery. Hypoxia on the part of the child where the heart rates are going down. Other issues seen on fetal monitor Stripe to where… Someone is trying to deliver a baby. Mom wants to deliver vaginally. They’re trying to deliver vaginally. And it always comes down to the timing when a baby’s in trouble of was a C-section called appropriately because a C-section allows an incision to be done in the belly. You open the belly, get the baby out, and it avoids all the trauma of labor. And in a setting of a labor and delivery, where you have fetal monitor Stripe and nurses and everyone’s evaluating the status of the baby, the number one rule is… Make sure baby’s okay. And if not, we need to get a C-section. Because that will eliminate the problem right away.
I had a case where a labor and management situation was going very badly. The child was essentially stuck in the vagina. It was a breech delivery. And you’re not going to believe this, but it happened. And instead of converting to a cesarean section, the OB, in attempts to continue to try to deliver the baby vaginally, and the force that was used in trying to deliver the child, in pulling on the child, decapitated the baby. And literally pulled the baby’s head off with the force that was being, you know, basically implemented by him in terms of trying to get the child out. Didn’t convert to a cesarean section, didn’t recognize that needed to be done as quickly as it needed to be done, that the labor, that the baby was breached and the baby wasn’t coming out. And the failure to convert to a cesarean section ultimately led to a catastrophic result. Obviously mom was aware her baby had been decapitated. And, you know, obviously it was a incredible. Incredibly traumatic and dire situation. And from time to time happens, it actually happens more, I shouldn’t say more than you think. But you know, I first got this case, I’m like, how the heck could this have happened? Like, there’s no way this could be real. But in some of these situations which breach babies, given the tender nature of their tissues and structures and bones, that if the right force is exerted under the right circumstances, this can occur.
So unfortunately, It was a terrible outcome for these parents. We brought a medical malpractice case against the hospital and doctor, and we were successful in that regard.
Rene Perras | 14:12 – 14:37
That’s so sad. And I can understand you know, first time mothers, their situations since, you know, I have three children of my own. So I know that the second and third were a lot easier than the first one. How do you see the field of medical malpractice law evolving in the coming years? Especially concerning doctors’ negligence?
Joe Osborne | 14:37 – 17:11 (Future of Malpractice Law)
I think it’s going to become more and more difficult for patients to bring these cases. The protections from the legislature. Through laws and procedural hurdles and caps on damages are things that. The legislature, and I’ll use Florida as an example, they talk about all the time in terms of making it more difficult for patients and building in protections for hospitals and doctors.
You know, caps on recoveries, meaning caps on non-economic damages, which means that if your loved one passes away, And, you know, it was your father or your mother or your spouse and the, you’re successful in your claim there, there’s going to be a law that says this is the most you can ever recover for that. You’re basically capped on any award. We’ve had those in Florida before they got overturned, but we now have a Supreme court that is, is talking about reinstating it. I told you about the procedural implications of 766 and what we have to do to even get a case to… to the courthouse. And I think they’re going to make it tougher and tougher to find experts and perhaps create, you know, other procedural hurdles that we have to get through in order to bring a successful case.
So given the complexity of this, and given the fact that these are not cheap cases, you know, there’s not a lot of personal injury lawyers that do medical malpractice. This is a very kind of, you know, unique area. That because of its complexities, you really need to make sure you have a very skilled, experienced malpractice lawyer. Cases are extremely expensive to bring. If someone comes to me, we pay for that. Meaning if we decide to take the case, we bring the case. We pay for the costs of the litigation. And if we lose the case, client owes us nothing. That’s our burden to bear from the standpoint of us bringing a case, and that’s how the contingency fee system works. We only get paid if we win and we get our costs paid back if we win.
So oftentimes for patients, you know, it’s a win-win situation in the sense that they’re only going to owe us if we make a great recovery on their behalf. Understanding those circumstances with the laws, the procedural issues, and perhaps caps coming Make sure that you reach out to an experienced medical malpractice lawyer if you have a question about a case as soon as possible.
Rene Perras | 17:11 – 17:33
It sounds like time is always of the essence. With medical malpractice. And… I guess it must be the same way. There must be a statute of limitation or you can only bring it within a certain time. What is it like for medical malpractice law in the state of Florida?
Joe Osborne | 17:33 – 18:11 (Medical Malpractice Statute of Limitations in Florida Explained)
It’s different in every state, but in Florida, for sure, it’s two years. So you have two years… From the date the malpractice was committed or two years from when you were on notice of a potential claim, but in no event do you have greater than four years.
So, you know, four years at the very end of time is your case is barred. Even if you’re not on notice of it, you know, till maybe three years after. In a wrongful death case, there is no notice provision. So in a wrongful death case, you have two years. So there’s two years from the date of death to bring a claim.
Rene Perras | 18:11 – 18:38 (Closing Remarks & Contact Info for Joe Osborne)
To find out more about Joe Osborne, Florida trial lawyer with Osborne and Francis, you can visit www.realtoughlawyers.com Or you can call Joe directly. And you can reach him at 561-301-3292. Thank you, Joe, for coming on the show and your experience with us is stellar as always. It was certainly helpful for me and I’m sure for our audience as well.
Joe Osborne | 18:38
Thank you, Rene.