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As the deadline loomed to file medical malpractice claims under state law allowing for unlimited damages, West Palm Beach, Fla. plaintiff attorney Greg Barnhart raced to prepare notices of intent to sue. He was joined by virtually every lawyer and staffer at his firm, Searcy Denney Scarola Barnhart & Shipley, as they worked to file the notices before controversial caps on noneconomic damages went into effect on Sept. 15. Barnhart sent the notices by registered mail the week of Sept. 15. But he was surprised when a dozen notices in one of the cases, sent to nurses at Sebastian River Medical Center in Sebastian, Fla., were returned unopened. The envelopes came back with the address covered by a piece of paper; the words “return to sender, no longer at this address,” were written on the envelope. The other 15 notices in the case, sent to doctors, nurses and the hospital itself, were not returned. Barnhart said he thinks the hospital in Indian River County returned the notices in an effort to avoid the suits until after the damage caps took effect. But Kathy Burke, the hospital’s chief executive, said the nurses for whom the notices were returned no longer work there and it’s standard procedure to return mail in that situation. Barnhart and many other plaintiff lawyers around the state sought to beat the deadline so they could claim unlimited damages for their clients and larger contingency fees for themselves. Only notices of intent to sue, not the suits themselves, had to be filed before the statutory deadline to bring their cases under the old law. So goes the skirmishing between plaintiffs and defendants under the state’s new malpractice statute, which caps noneconomic damages at $500,000 per claimant against doctors in most types of cases, at $150,000 against emergency room doctors, and at $750,000 against emergency rooms, hospitals and HMOs. While no statistics are available, both sides say an unusually large number of notices of intent to sue were filed just before the Sept. 15 effective date of the new law. One large plaintiff firm, Krupnick Campbell Malone Buser Slama Hancock McNelis Liberman & McKee in Fort Lauderdale, filed a year’s worth of new cases — 25 — in three weeks. Defense lawyers and the Florida Hospital Association charge that plaintiff lawyers are filing incomplete and defective notices, while plaintiff lawyers allege defendants are using various tactics to delay cases in order to make them subject to the new law’s damage caps. “There has been a large increase in the number of medical malpractice lawsuits filed,” said Bill Bell, general counsel to the Florida Hospital Association. “The same thing happened right before the nursing home tort reform went into effect in Florida. It’s a pretty common tactic to skirting the law.” Gail Parenti, a Coral Gables, Fla. defense lawyer, said the eight hospitals she represents in Miami-Dade County experienced an “onslaught” of new cases in the week before the law took effect. Many of the filings contained little more than the plaintiff’s name, lacking basic information, she said. Neal Roth, a Miami medical-malpractice attorney who serves as president of the Academy of Florida Trial Lawyers, acknowledged that plaintiff lawyers throughout the state tried to file pre-suit notices before the new law took effect. He said their efforts were legitimate. “I don’t know of any lawyers who made up cases,” he said. Meanwhile, a debate is brewing about the meaning of the law’s Sept. 15 effective date — does it apply to cases filed after that date even if the medical event which triggered the suit occurred prior to Sept. 15? That is just one of many questions about the new law that likely will be litigated over the next few years. ‘PESTER AND CAJOLE’ Under Florida statutes, before filing suit in a medical-malpractice case, the plaintiff lawyers first must conduct a “reasonable investigation” and file a notice of intent to sue naming the plaintiffs and defendants in the case. The notice of intent must be sent certified mail. Defendants have 90 days to respond. When lawyers file a notice of intent to sue a doctor, nurse or hospital, they typically include an affidavit from a medical expert stating that he or she reviewed the medical records in the case and found that the care was substandard. The purpose is to prevent frivolous lawsuits. According to Florida statute, the affidavit corroborating the lawyer’s allegations must be included in the pre-suit notice. But a 1996 Florida Supreme Court decision, Kukral v. Mekras M.D., allowed for some latitude, stating that it was not “fatal” to the case if the affidavit was filed later. The court noted that the expert might be temporarily unavailable. South Florida plaintiff lawyers say that obtaining the necessary medical records and securing expert affidavits were the biggest challenges in their scramble to beat the Sept. 15 deadline. “We had to pester and cajole health care providers to send their records,” Barnhart said. WORKING OVERTIME The case that Barnhart claims the Sebastian River Medical Center tried to delay involves Cynthia Dellerman, a 41-year-old mother of two who died at the hospital on March 21. According to Barnhart, she was admitted on March 7 with “altered mental status” and was suffering from renal disease and diabetes. Barnhart contends that the hospital gave her an overdose of Dilantin, which is used to treat epilepsy. Burke, Sebastian’s chief executive, declined to comment on the specifics of the case. But she said her hospital’s return of the letters of intent to the nurses had “absolutely nothing to do with the new malpractice law. It is our policy that we only accept letters of correspondence for individuals that still work at our hospital … and are given to us appropriately.” Burke said her hospital was served with an increased number of lawsuits and notices of intent in the weeks before Sept. 15 but was not “inundated.” At Krupnick Campbell, the firm assigned three staffers full time to the task of securing medical records and persuading medical experts to review cases. “We got tremendous cooperation from experts,” Liberman said. In one case filed by the firm, the alleged malpractice event occurred on Sept. 8, just one week before the new law took effect. The case involved a Homestead, Fla. man who allegedly was wrongly given medication orally instead of intravenously by a nurse. As a result, Liberman said, the patient suffered profound brain damage and remains in the hospital on a ventilator. The patient’s wife came to Liberman on Sept. 9, and he managed to file the pre-suit notice by Sept. 13. Liberman said his firm had one case in which mailed notices of intent were returned unopened from the hospital and medical staff. But he said he does not know if that represented deliberate efforts to avoid service before the effective date of the new law. Lawyers at Miami’s Ratzan & Alters said their four-lawyer plaintiff shop resembled a factory assembly line during the three days before Sept. 15. They were so busy copying documents and medical records that they burned out a photocopy machine. All together, the firm filed notices of intent to sue in six cases involving catastrophic injury or death, against nearly 60 defendants. Associate Janpaul Portal, who started at the firm Sept. 2, called his first two weeks at the firm “boot camp.” He worked until 11 p.m. every night. “My job was to hound the experts and make sure we got all the affidavits,” he said. “It was mass production.” Firm partner Stuart Ratzan said that while he had no notices returned unopened, he was amazed that in one of his cases a defense attorney tried to argue that the case should be governed by the new law even though it was filed in August. In that case, Cary Capper of Wicker Smith O’Hara McCoy Graham & Ford in Miami filed an affirmative defense that read: “At all times material hereto, this case was controlled by the new Tort Reform Act, and all limitations contained therein.” The motion was filed Sept. 13, two days before the act went into effect. Ratzan’s motion in response states, “Plaintiff further contends that the new Tort Reform Act is inapplicable to the instant matter and is unconstitutional.” Ratzan plans to argue that the new statute should not apply in any case where the injury occurred before Sept. 15 — even if the case was not filed until after the effective date of the legislation. Liberman plans to make the same argument. “What if a test was done well before Sept. 15 and it later turns out that the test was done incorrectly?” he said. “Does that go under the old or the new statute? This was a sloppily put together bill thrown together to appeal special interests. There is a lot of confusion that will lead to years of litigation over its constitutionality.” Some defense attorneys are complaining that some of the rushed notices of intent to sue lack basic information. Gail Parenti, a partner at Parenti Falk & Waas in Coral Gables, Fla., said one case she saw contained only the name of the plaintiff. She said her hospital clients are complaining, “How in the world can we respond to these in 90 days when we have no idea what the case is about?” Parenti said she will file for sanctions and motions to dismiss cases that lack required information. “The plaintiff bar made a calculated gamble in filing these cases,” she said. Asked about allegations that some hospitals have returned notices unopened in an effort to stall, Parenti said she “can’t speak to that.”

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