Tuesday, July 21, 2015
Flagler Hospital A Frequent Litigant: Thousands of Lawsuits in Local Courts
There are 56 pages -- 2768 cases -- listed involving Flagler Hospital as a plaintiff or defendant on the Clerk of Courts website. Many of the lawsuits are debt collection cases, where patients or their survivors are sued by Hospital lawyers.
Rarely does anyone outside the court system learn the details of any Flagler Hospital lawsuits, even major medical malpractice actions, because the St. Augustine Record does not cover local civil courts, and rarely examines powerful local institutions. (Several Record publishers served on Flagler Hospital's board of directors).
The "news hole" in the Record has declined steadily since we moved here in 1999, when the Record was still an afternoon paper and still capable of honorably covering wrongdoers with panache and skill. Since that time, the Record survived bankruptcy, eschewed investigative reporting (e.g., of Sheriff DAVID BERNARD SHOAR and the O'Connell case), and is "hanging over Hell's fire by a thread."
Here, however, is a 2002 Record article by then-reporter Peter Guinta, quoting two prominent local lawyers about pending malpractice cases, after Flagler Hospital's medical malpractice insurance carrier went bankrupt:
Flagler malpractice insurer folds
Published Saturday, March 02, 2002
Flagler Hospital's out-of-state malpractice insurer, PHICO Insurance, was liquidated Feb. 1, forcing the state to step in and provide insurance coverage.
Attorneys for Flagler last week sought a six-month delay in resolving local malpractice cases still in the court system, hoping to give the Florida Insurance Guarantee Agency a chance to catch up with pending cases.
State law mandates FIGA to provide coverage for a medical facility when an insurance company fails.
On Wednesday, Circuit Judge J. Michael Traynor gave a verbal agreement to delaying those lawsuits.
Joe Gordy, Flagler Hospital's chief executive officer, said FIGA's taking over has already been decided by a judge in Tallahassee.
"The hospital has resources," Gordy said. "None of those cases are that large. My exposure on each one of those is the $50,000 deductible, plus anything that comes in over $300,000. I feel very comfortable that the hospital is well protected."
Yet an Orlando lawyer, Cleve Acree, of Unger and Acree, who represents the hospital in PHICO's liquidation, said if the delay wasn't granted, there might have been "a devastating impact" on the hospital.
"A very valuable public institution could very well have been bankrupted by some unexpected verdict by a plaintiff," Acree said. "Everyone needs to understand the real service to the community that facility provides."
At the same time, local malpractice attorneys say there's already been too much delay in their cases.
Leanna Freeman, of Freeman and Burk, St. Augustine, represents a local couple whose 10-hour-old baby died at Flagler Hospital nearly 2-1/2 years ago.
"They want to get on with their lives," Freeman [now a City Commissioner] said Thursday. "For people who have suffered any type of loss, lingering litigation exacerbates their pain and their ability to have a final resolution of what took place and who was responsible."
Freeman said the newborn was extremely small -- under 5 pounds -- but received no intravenous fluids. Hospital personnel allegedly left the child with its sleeping mother around midnight. The next morning, the child was found suffocated.
According to Freeman's co-counsel, Robert L. McLeod, of McLeod and Canan, exposure in this case could be close to $1 million.
"Right now, the hospital has coverage by FIGA, but the limit of that coverage is $350,000," he said. "That's not going to be appropriate for that baby death claim, period."
Teri Latham, an attorney with George, Hartz, Lundeen and Fulmer of Orlando, represents the hospital and said all patients will get their day in court, though it may take longer than they anticipated.
"Until a judge or jury makes that determination, it's only allegations of malpractice against the hospital," Latham said. "(FIGA) must review the case files, assign them to counsel and make a determination whether there's any merit to the claims. Just as plaintiffs will get their day in court, so will the hospital."
McLeod said he'd like to see the hospital settle his cases.
In addition to dead baby's family, he also represents a diabetic and elderly woman allegedly left on a bed pan for 48 hours, producing huge bedsores. Physical damage went down to the bone and took months to heal, he said.
"We've been trying to settle that case for a year," McLeod said. "This woman is in very poor health and in dire financial straits. She could very well die before this case is ever resolved."
Another malpractice case involves a 65-year-old Palm Coast man who collapsed in a St. Augustine hotel in 1998 and was brought to the Flagler Hospital emergency room.
He died several hours later.
The medical record reveals that the man "basically showed every sign in the book for pulmonary embolus," McLeod said.
"Had there been timely intervention, he would have survived."
Most medical malpractice cases settle for under $250,000, he said.
"The hospital is a victim here. It went out and bought coverage from an insurance company that represented itself as being able to handle their claims," McLeod said. "But at the end of the day, patients shouldn't be left holding the bag on these."
PHICO, of Mechanicsburg, Pa., had insured Flagler Hospital for nearly three years, but Pennsylvania Insurance Commissioner M. Diane Koken announced Feb. 1 that the company would be liquidated.
"We had no choice but to liquidate PHICO in order to avoid further risk of loss to its policyholders, claimants and creditors," Koken said in a press release. "In August 2001, PHICO filed a quarterly statement that reflected a surplus of only $6.8 million -- a substantial and alarming decrease from its year-end 2000 surplus of more than $127 million. In fact, recent analysis showed that a reserve deficiency exceeding $250 million existed as of June 30, 2001."
According to McLeod, studies say 20 percent or less of an insurance company's premiums go to pay its claims.
"The PHICOs of the world don't go bankrupt because of claims. They go bankrupt because of mismanagement," he said.
But Freeman said the real cost in this case will be borne by plaintiffs.
"We had secured trial and mediation dates that took two years to get to that point," she said. "Now they're all on hold."
ANTITRUST VIOLATION OR STRIKE?
In 2003, local doctors closed their offices for a day to publicize their concerns about medical malpractice. The Record's coverage was uncritical. Under Supreme Court precedent, a "strike" by D.C. Superior Court lawyers was an antitrust conspiracy. FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411 (1990).
Miguel Machado, a neurosurgeon and president of Flagler Hospital medical staff, talks to a crowd of physicians, nurses and support staff of Flagler Hospital on Wednesday, February 05, 2003.
By PETER WILLOTT, Staff
Doctors protest malpractice issue
Published Thursday, February 06, 2003
Local doctors decried the explosion of medical malpractice insurance rates and called for reform of civil law during a "study day" at Flagler Hospital.
Some 100 St. Johns County doctors closed their offices for a day on Wednesday to publicize a crisis: Doctors have been leaving Florida because they cannot afford medical malpractice insurance here.
The protest of sorts occurred a day after a task force on medical liability insurance recommended to Florida Gov. Jeb Bush that a cap be placed on non-economic damages sought by attorneys in lawsuits. Months ago, a similar cap was approved by the U.S. House of Representatives but stalled there.
Wednesday, a crowd of about 300 heard surgeons such as Flagler Hospital's Warren Kluger describe a potentially bleak future for Florida health care.
Kluger, a doctor for 27 years, said he might leave St. Augustine within 30 days because of a rise in rates and the danger of lawsuits. Without tort reform to put a cap on the lawsuits, there will be a "mass exodus" of doctors, Kluger said.
Dr. Miguel Machado, St. Augustine's lone neurosurgeon and president of the medical staff at Flagler Hospital, might leave soon, too.
Machado warned that the people of Florida are in "grave danger."
The warning has been sounded repeatedly in the last few months, receiving replies from insurers, attorneys, doctors and politicians. It has generated interest at all levels of government.
For example, representatives from the most powerful lobbying group in the nation, the U.S. Chamber of Commerce, stood in support of doctors at Flagler Hospital. In the State of the Union address last week, President George Bush mentioned medical liability. Medical malpractice insurance was contentious in Congressman John Mica's recent election. Mica supports the caps. Locally, St. Johns County Commission Chairman Jim Bryant said area doctors tell him the problem is limiting their ability to help county patients for free.
Agencies representing insurers, doctors and attorneys have been releasing statements for months about the pending crisis.
The Academy of Florida Trial Lawyers said the state's task force recommendations would be a "gift" to insurers.
The cap on non-economic damages "will not provide the immediate or meaningful relief needed by patients and health care providers," according to information from Jacqui Sisto of the Trial Lawyers. The association has maintained for months that the insurance crisis is inflicted by the insurance industry, not lawyers.
Insurers blame the stock market and the greed of attorneys.
The patients' concern is that they will not receive health care in a state where doctors have vanished.
One patient spoke up at the "study day."
Karen Tice, 30, is expecting a baby soon. The Flagler Hospital nurse said she is worried about where she and her husband will find help if Flagler's obstetricians leave.
"I want to be assured that I will have the quality obstetrical care that my baby and I deserve," Tice said.