COVID-19 Update: How We Are Serving and Protecting Our Clients

Nieves v. Viera – Importance of Expert Witness in Medical Negligence Lawsuit

Cases of medical negligence 0r medical malpractice, are bound by a higher burden of proof than cases of general negligence. The pre-lawsuit investigation is more rigorous and extensive. The notice requirements are more rigid. Plaintiffs must have the backing of a similarly-situated medical professional willing to assert defendant deviated from the applicable standard of care, which proximately resulted in the injury or death at issue. stethascope5

Additionally, doctors and health care institutions are apt to fight these cases vigorously, as it is not just the immediate compensation at issue, but their reputation and future livelihood at stake.

Recently, a Florida physician challenged the trial court’s refusal to dismiss the case for what he called a violation of pre-lawsuit requirements as indicated in F.S. 766.203(2). In the case of Nieves v. Viera, defendant doctor sought certiorari review by Florida’s Third District Court of Appeal, arguing the trial court erred in declining to dismiss the medical malpractice claim pending against him.

Our Fort Myers medical malpractice attorneys recognize the complexities involved in bringing these cases, and we are deeply committed to assisting our clients in obtaining rightful compensation.

Here, according to court records, the case stems from the November 2009 death of a woman following surgery on her fractured femur. The surgery was conducted by defendant, a board-certified orthopedic surgeon, and all agree the procedure itself was conducted without issue and was a success. The woman was then taken to a post-anesthesia care unit.

A few hours later, she was administered pain medication by nursing staff at the hospital. Shortly thereafter, she suffered from respiratory arrest. Just four days later, she was dead.

In the course of those four days, the hospital staff never contacted her surgeon. Also, the surgeon never visited the decedent. He asserted he had no duty of care or obligation to the patient beyond checking in on her once while she was in the post-anesthesia care unit. After that, he says, her care was the responsibility of the hospital staff (who are also named as co-defendants in the case).

In bringing the case against the surgeon, plaintiff filed a notice of intent, which included a verified written medical expert opinion submitted by a medical doctor who specializes in internal medicine and pulmonology.

The surgeon moved to dismiss the case against him on the grounds the medical expert did not specialize in the same or similar field as him.

Primarily at issue in the case against him is whether he, as someone who was not a hospital staffer, had a duty to tend to the patient following her transfer from the post-anesthesia care unit, and if so, whether that failure played a role in causing her death.

Plaintiffs argue that because the surgery itself was not at issue, the expert medical witness cited was appropriate to make the necessary assertions because the claim was not whether the surgery deviated from the standard of care, but whether his post-operative actions deviated from the standard of care.

Trial court sided with plaintiff, and the appellate court upheld this ruling on appeal. The court rejected defendant’s assertion that trial court’s failure to hold an evidentiary hearing was grounds for dismissal as well.

If you have been injured in Fort Myers, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.

Additional Resources:

Nieves v. Viera, Nov. 19, 2014, Florida’s Third District Court of Appeal

More Blog Entries:

Public Entity Liability for Inadequate Emergency Response, Oct. 6, 2014, Fort Myers Injury Lawyer Blog

Contact Information