Justia Lawyer Rating for Robert D. Kreisman

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The Florida Supreme Court has struck down a state law that capped noneconomic damages in medical malpractice injury lawsuits that stood at $1 million. The high court found that the law violates the equal protection clause of the Florida Constitution.

In this 4-3 decision, the Florida Supreme Court affirmed the Fourth District Court of Appeals’ 2015 decision that found that the cap, established by Florida statute, does not pass the rational basis test because the law arbitrarily reduces medical malpractice claimants’ rights to full compensation when there are multiple claimants and because it “does not bear a rational relationship” to its stated purpose of addressing an alleged medical malpractice insurance crisis in the state.

The decision relied heavily on the Florida Supreme Court’s 2014 decision in Estate of McAll v. United States that struck down the cap on noneconomic damages in wrongful death cases for many of the same reasons.
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After the jury found in favor of the treating physician, an appeal was taken by Zbigniew Adwent arguing that he was entitled to present testimony from a forensic document examiner in the lawsuit he brought against Dr. Richard B. Novak. The lawsuit alleged that Dr. Novak chose not to properly treat Adwent for back pain and other ailments. The Illinois Appellate Court for the First District stated that the examiner’s opinion that a page was missing from Adwent’s chart was conjecture.

“Mr. Adwent’s counsel clearly intended to use that testimony to suggest that Mr. Adwent’s medical records had perhaps been altered to cover the doctor’s inappropriate treatment of his patient.” The appeals panel also stated: “Such a use of this testimony would be completely speculative and highly prejudicial.”

The appeals panel also ruled that Adwent’s claim that the trial judge should have instructed the jury on contributory negligence also did not hold up because there was no reason to think doing so would have had any impact on the jury.
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Aaron Riedel, who was 28 at the time, went to Lodi Community Hospital emergency room complaining of back pain. He told the emergency department staff that he was taking an antibiotic to treat a MRSA infection. Riedel was later discharged from Lodi Community Hospital with a diagnosis of simple muscle strain.

The next day, he returned to the emergency room with worsening back pain. Again, Riedel informed the emergency department staff about the antibiotic he was taking and his MRSA history. The emergency room physician, Dr. Christopher Kalapodis, ordered a CT scan, which ruled out a kidney stone as the cause of the problem.

Riedel was then given a dose of morphine and an anti-inflammatory before he was again discharged. The next day however, he required additional treatment in the emergency room where he was diagnosed as having a spinal epidural abscess. Despite efforts through surgery and rehabilitation, Riedel was left a paraplegic.
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Sean Pedley was 43 when he developed a lump in his left thigh. An internist, Dr. Syed Danish, ordered an x-ray that did not signify or later lead to a diagnosis. Pedley’s mass grew and became painful over the next two years.

When a later biopsy of the mass was analyzed, it showed that it was synovial sarcoma, a soft-tissue cancer.

By the time the correct diagnosis was made, the soft-tissue cancer had metastasized to Pedley’s spine.
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Antonio Marrero, 32, was seen at the Walanae Coast Comprehensive Center, which is a federally qualified health center. He went to the facility complaining of a sore throat.

Marrero was diagnosed with having a peritonsillar abscess, which required evaluation by an otolaryngologist. A health center physician decided to evaluate Marrero under sedation and subsequently administered the drug Etomidate. Etomidate is a short-acting intravenous drug used in general anesthesia and for sedation of patients for short procedures.

In this case when Etomidate was given, Marrero lost consciousness and died. The cause of death was determined to be oxygen deprivation resulting in anoxia.
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The Maryland State Appellate Court has ruled that the trial judge was correct in deciding whether a patient’s negligence lawsuit, that of Yolanda Harris, would go forward against a women’s health clinic even after she dropped claims against her doctor, the agent to the clinic.

The Maryland Court of Specials Appeals said that Harris did not forfeit her right to a lawsuit against Women First OB/GYN Associates LLC when she voluntarily dropped all claims against the clinic’s physician, Dr. McMillan who was alleged to have committed malpractice in a hysterectomy procedure for Ms. Harris.

It was ruled that the judgment against Women First could stand even though the clinic’s negligence was based entirely on Dr. McMillan’s acts or omissions. The legal issue on appeal was whether the principal, Women First, could be held liable for the acts of its agent, Dr. McMillan, who had already been voluntarily dismissed.
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This case arrived at the Illinois Appellate Court as an interlocutory appeal that came about from the plaintiff Eric Owens’s lawsuit against the defendant hospital, Louis A. Weiss Memorial Hospital, and its doctors related to the care received by Owens at the hospital’s emergency room in 2011. He initially named Dr. Ahmed Raziuddin as a defendant in the lawsuit as the physician who treated him in the emergency room based on Dr. Raziuddin’s name appearing in the hospital’s records as the treating physician.

However, it turns out that Dr. Raziuddin filed a motion to dismiss the lawsuit claiming that he was not the doctor treating Owens and that a Dr. Seema Elahi was actually the treating physician. That motion was granted.

Owens then amended his complaint adding Dr. Elahi as a party defendant replacing Dr. Raziuddin. Dr. Elahi then filed a motion to dismiss arguing that the statute of limitations had expired.

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Jenny Copsey, on behalf of her late husband, Lance Copsey, filed a lawsuit against a radiologist, Dr. John Park, claiming that he chose not to properly analyze radiological images, which purportedly contributed to the her late husband’s fatal stroke.

The state’s court of appeals said that the evidence of negligence by Copsey’s other physicians who previously settled out of the case was properly admitted by the trial court because it was essential to provide Dr. Park with a fair trial.

The decision stated: “Evidence of nonparty negligence was relevant and necessary in providing Dr. Park a fair trial as it tended to show he was not negligence; thus, the alleged prejudice did not outweigh its probative value.”
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In 2011, Sean Elliott filed a medical malpractice lawsuit against Resurgens P.C. and Dr. Tapan Daftaria. The lawsuit alleged that Elliott ended up with paralysis because treating physician Dr. Tapan Daftaria chose not to timely diagnose and treat an abscess in Elliott’s thoracic spine.

During the jury trial, he attempted to call Savannah Sullivan, a nurse. She was not identified as a potential witness in Elliott’s written discovery responses or in the parties’ pre-trial order.

The trial judge excluded Sullivan as a witness. After the jury returned a defense verdict for Resurgens and Dr. Daftaria, Elliott appealed to the court of appeals arguing that the trial judge’s exclusion of Sullivan was an error. The court of appeals in Georgia agreed, reversing the jury’s verdict and remanding the case for a new trial.
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Gerald Teeuwen, 77, developed a persistent cough. He went to an urgent care facility and later underwent a chest x-ray, which was interpreted as showing a density in his left lung. Teeuwen was referred to a pulmonologist, Dr. Peter Birk.

Dr. Birk ordered a second chest x-ray, which radiologist Dr. Jack Lowdon read as normal. Dr. Lowdon did not compare the two films, which had not been provided to him. The following year, Teeuwen was diagnosed as having Stage IV lung cancer with metastasis to his brain and bones. He was unable to tolerate his chemotherapy and brain radiotherapy treatments. Teeuwen died of lung cancer four months later. He was survived by his wife and two adult children.

Teeuwen’s wife, on behalf of his estate and family, sued Drs. Birk and Lowdon alleging their negligence in choosing not to timely diagnose lung cancer. The Teeuwen family alleged that both physicians should have reviewed the first chest x-ray and that Dr. Lowdon had misread the second study. If Teeuwen would have received an earlier diagnosis, the family and the estate argued, he would have had a chance for cure and survival.
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