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Memorandum of Law – Medical Malpractice

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    As requested, I have reviewed the facts of the above-captioned file, along with the applicable law and summarized same in this memorandum. Mrs. Mary Smith suffered an injury to her right ankle in an automobile accident on 10/3/95. After surgery and months of rehabilitation, Mrs. Smith still suffers daily. I have researched the facts regarding a personal injury action against Paul Joseph, as well as a medical malpractice action against the medical providers. Applicable Law

    Personal Injury Statute of Limitation – 4 years from the date of the incident giving rise to the action. Fla. Stat. §95. 11(3)(a) Florida Motor Vehicle No-Fault Law – under this law, 80% of reasonable medical expenses rising from injuries sustained in an auto accident are covered automatically by the injured parties insurance, no matter who is at fault. Additionally, 60% of any lost wages are covered, depending on the individual limits. In order to file suit against the “at fault” driver, it must be shown that Mary suffered serious, sustained permanent injury or significant scarring or disfigurement.

    Medical Negligence

    Statute of Limitations – 2 years from the date of the incident giving rise to the action occurred or 2 years from the date the incident was or should have been discovered. However, no action shall be accepted more than 4 years after the date of the incident or occurrence giving rise to the action. Fla. Stat. §95. 11(4)(b) Standards of Recovery – The existence of an injury does not create the presumption of medical negligence. It must be shown, by a preponderance of evidence, that there was a breach of the prevailing standard of professional care; that the injury was not within the reasonably foreseeable results of the medical care.

    Fla. Stat. §766. 102 Comparative Negligence Fla. Stat. §768. 81 – Florida statutes state that both the medical provider and the at-fault driver may be held liable for damages under comparative negligence. In this case, the accident is the proximate cause of Mrs. Smith’s injuries and the medical providers are the intervening cause, as their breach of duty exacerbated Mrs. Smith’s injury to the point of permanent disability and disfigurement. Possible Defendants Paul Joseph, the other driver – Florida’s no fault law includes an “injury threshold” limiting law suits to claims of great bodily injury, permanent disability or disfigurement.

    Statutes, however, are unclear as to exactly what constitutes great bodily injury. It is unlikely that Paul Joseph would be named as a defendant in this action, as Mary’s PIP insurance would be the proper party. Under Florida’s Civil Remedy Statute, §624. 155(1)(b), Mary’s insurance company is required to act in her best interests. Should they act in “bad faith” by failing to settle for a reasonable amount, Mary may sue for an amount which is “a reasonably foreseeable result of a specified violation of this section by the authorized insurer and may include an award or judgment in an amount that exceeds the policy limits. Fla. Stat. §624. 155(8)

    However, the statute goes on to state that “No punitive damages shall be awarded under this section unless the acts giving rise to the violation occur with such frequency as to indicate a general business practice and these acts are: (a) Willful, wanton, and malicious; (b) In reckless disregard for the rights of any insured; or (c) In reckless disregard for the rights of a beneficiary under a life insurance contract. ” Dr. Patrick, Surgeon – If Dr. Patrick’s decision to delay Mrs. Smith’s surgery for 9 days proves to be the catalyst that caused Mrs.

    Smith’s initial injury to be a permanent disability; he is liable for economic and non-economic damages, including pain and suffering. We would need further information from our consultant to determine if we would file under comparative negligence, proving that the car accident to be the proximate cause and the doctor’s negligence the intervening cause or, if apportionment is undeterminable, file jointly. Morgan Roofing, Inc. v. Prather, 864 So. 2d 64 (2003)

    Settlement Points

    1. Mrs. Smith would not have suffered injury requiring medical attention had it not been for Paul Joseph’s negligent driving.
    2. Florida’s No-Fault statute provides that her insurance should cover 80% of her past and future medical costs and 60% of her property damage costs.
    3. The delay in treatment by Dr. Patrick increased the likelihood of infection, and complications, of which she suffered both.
    4. Mary suffered prolonged intense pain and mental anguish prior to her surgery.
    5. Mary suffered additional pain and mental anguish for months after the surgery while attending extremely difficult physical rehab. Additionally, she received no help dealing with the emotional aspects of her situation.
    6. Up until the accident, Mary was healthy, physically active, happy and independent woman who held a part time job, which provided her substantial income and spiritual satisfaction.
    7. Additionally, Mary participated in water aerobics twice a week and enjoyed bingo twice a week with her friends.
    8. Mary can no longer work, as she has trouble driving due to pain and weakness in her right ankle. She longer attends water aerobics or bingo, unless her friends can drive her there and back.
    9. Mary is no longer independent in her own home, and her children have had to drastically alter their lives to assist Mary in daily activities. Mary lives in fear of falling, now that she continuously suffers pain and weakness in her right ankle.
    10. Mary’s current medical bills are $28,729. 47 and she will likely need future home health care as her condition deteriorates more quickly than if she had not suffered the injury.


    Under Florida No-Fault statute, Mary has a cause of action against her insurance company for payment of current and future medical fees and property damage. Mary is within the 4-year statute of limitations for the motor vehicle accident and within the 2 year statute of limitations for medical negligence.

    It appears that Mary has a cause of action against Dr. Patrick for medical negligence, for failing to provide the minimum standard of care. However, further details from our expert medical consultant is required to determine if comparative fault can be shown. If no apportionment can be determined, filing against both defendants jointly is a valid option.

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    Memorandum of Law – Medical Malpractice. (2016, Sep 22). Retrieved from

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