South Florida Hospital News
Thursday May 28, 2020
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April 2010 - Volume 6 - Issue 10

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The Curious Case of Clementina Brown

The Clementina Brown(1) case is an actual medical malpractice case. On October 30, 2009 a Miami-Dade County Florida jury returned a plaintiff’s verdict for $8.5 million. At the time of her initial treatment Ms. Brown was a 33 year old mother of eleven year old twin boys. While the medicine involved in this case is interesting it isn’t relevant to the more interesting twist this case took.

In Spring 2005 Ms. Brown was admitted to a Miami-Dade County hospital where she was treated by a number of doctors and hospital staff. Because of the medical malpractice Ms. Brown was discharged from the hospital unconscious and in a vegetative state. She survived in a nursing home until February of 2007 when she passed away.

The hospital and most of the doctors carried medical malpractice insurance. Two of her treating doctors did not carry medical malpractice insurance; they were "going bare". The hospital and all of the insured treating doctors, through their insurance companies and their insurance companies’ acquired medical malpractice defense counsel, settled out of the case early leaving the two bare doctors (we will call them Dr. A and Dr. B) as the sole defendants.

The state of Florida, most Florida hospitals and the health insurance companies in Florida do not require Florida doctors to carry medical malpractice insurance. However, Florida Statutes § 458.320 makes doctors, with hospital privileges, responsible to satisfy a medical malpractice judgment against them up to $250,000 or lose their license to practice medicine. This "financial responsibility" requirement can be met by purchasing medical malpractice insurance with a limit of at least $250,000, posting a letter of credit, or escrowing funds. Drs. A and B appear to have done none of the above.

The plaintiff’s lawyer responded to Drs. A and B’s lack of insurance in a different manner than they anticipated. The doctors thought that when the plaintiff’s lawyer learned they had no insurance they would be dropped from the case. This plaintiff’s lawyer settled the case against all of the other defendants and then pursued the case against Drs. A and B.

Dr. B chose to ignore the entire legal process and the plaintiff’s lawyer received a default judgment against Dr. B. Dr. A did what uninsured doctors involved in a law suit often do; he hired his two nephews (both lawyers) to defend him. Typically an uninsured doctor does not have access to experienced medical malpractice defense lawyers nor will they spend the funds, often in six figures, to hire such an experienced lawyer. This was the first medical malpractice case the doctor’s nephews/lawyers had tried.

The plaintiff’s lawyer proceeded to trial against both doctors, although because of the default judgment the trial portion against Dr. B would have been to establish the damages only. Liability was determined by the default judgment. On the Friday before the scheduled trial Dr. B filed for bankruptcy which stayed the trial against him. Dr. A proceeded to trial and after a five day trial the jury returned an $8.5 million verdict with $2.88 million of the liability apportioned against Dr. A.

Now Dr. A is faced with paying his nephews their legal fees, assuming they charged him, the costs to defend the case (deposition fees, expert witness fees, cost of producing evidence, etc.) and the $2.88 million judgment. Maybe he can convince the plaintiff’s lawyer to accept the requisite $250,000 of if he has assets or earnings maybe the plaintiff’s lawyer will work to collect as much of the $2.88 million as he can collect. What happens to Dr. B appears to be in the hands of the bankruptcy court.

What can be learned from this case?

  1. If you are selecting counsel to represent you in a medical malpractice case make sure they have a depth of experience in trying cases similar to yours.
  2. Be prepared to pay the lawyers, if you can find them, six figures if the case goes to trial.
  3. Be prepared to pay at least $250,000 if you have a judgment against you or surrender your license.
  4. Even if you think you have protected your assets you are still accountable for your most important asset, your license to practice medicine. A truly aggressive plaintiff's lawyer may go after everything else and try to pierce your asset protection.
  5. Be prepared to go through 2-5 years of a traumatic lawsuit in a case that would have been settled early by your insurance company, if you had insurance.
  6. Be prepared to see your name in the local paper when the jury returns a million dollar plus verdict against you.
  7. Buy an insurance policy for at least $250,000 and let the professionals defend you whether you were responsible or not.
  8. Most importantly - Going Bare is not a Risk Free Endeavor!
Steven L. Salman, MBA, JD is the CEO of Healthcare Underwriters Group of Florida, a physician owned and Florida licensed medical malpractice insurance company. For more information, call (954) 923-1900 or visit www.HUgroupFL.com.

(1) The Clementina Brown case filings can be found in the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida General Jurisdiction Division Case No.: 07-09865 CA 31

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