The sickening reality of Florida’s medical malpractice laws
It was his fifth marriage and her second, but they were together for more than 20 years. Karen Ballard gets emotional just saying her husband Tom’s name.
“He was the most amazing man and he was the love of my life,” she said.
Tom Ballard died in January, eight months after a surgery that was supposed to prolong his life. Ballard feels he’d still be alive it wasn’t for mistakes made by Dr. Donald Moyer, a neurosurgeon with privileges at Cape Coral Hospital.
Ballard said it all started in April 2019 when Tom fell and hit his head. Initially, doctors didn’t find anything wrong.
But in June, she said the left side of his face was drooping and he wasn’t able to walk. He was admitted to Cape Coral Hospital where doctors found a hematoma on the right side of his brain.
A week later, Dr. Donald Moyer, performed surgery to drain the blood from both sides of his brain.
Ballard said after the surgery, Dr. Moyer came out and told her that he’d dropped part of Tom’s skull on the floor and had to replace it with an artificial skin flap. Tom initially healed from the surgery and within a month, and according to Ballard, he was even cleared to drive and to go on a cruise.
But then his wound started seeping fluid. She said Dr. Moyer examined Tom and told her he was “on the fence” about whether or not the area around the flap was infected. She said that’s where she feels Dr. Moyer made a fatal mistake by prescribing penicillin instead of opting to remove the infection right away.
The next day Tom had a seizure.
Ballard said doctors were still hesitant to operate on the infected area because Dr. Moyer was now out of town. A week later, she said a different doctor did surgery to remove the artificial flap and drain the infection.
Ballard claims her husband never fully recovered after that second surgery. He got to the point where he couldn’t hold his head up, and he couldn’t walk. After months in and out of rehab facilities and hospitals, Ballard brought Tom home for hospice. In January, just after his 68th birthday, he died.
She filed a complaint against Dr. Moyer with the Department of Health, which is still pending. It is not the first time the Department of Health has looked into a problem with Dr. Moyer. In 2005, records show he was fined after he operated on the wrong side of a patient’s body.
But Ballard said she has not been able to get a single attorney to help her bring a Malpractice case against the surgeon because of restrictions in Florida’s medical malpractice laws.
Physicians in Florida can opt-out of carrying malpractice insurance, and Dr. Moyer does not carry it.
But she said that’s not the only issue keeping attorneys from taking her case. The surgery was performed at Cape Coral Hospital, which is part of Lee Health. Since Lee Health is a public entity, sovereign immunity rules apply which limit cap damages in liability cases to $200,000.
“The lawyers I’ve spoken with said this could take upwards of 10 years and we’re going to spend thousands and thousands of dollars… The award could be $50,000 and here we’ve spent $500,000 on your case,” she said.
Claimants in Florida have to contact twice as many attorneys to get one to take a case as claimants in the rest of the nation, according to a data analysis provided by Justpoint.
Justpoint is a service that helps connect people to malpractice attorneys nationwide.
Victor Bornstein, CEO & Co-founder of Justpoint, said payouts in Florida are significantly lower than other parts of the nation which deters attorneys from taking a case.
“Oftentimes people do have a (good) case. Forty percent of people who have a case sometimes can’t find an attorney. It’s a very high number where there was a medical mistake, you deserve something, but it’s difficult to find an attorney,” he said.
Ballard said she has given up trying to locate a lawyer. She said she sends two letters a week to the Governor’s office and to her state representative to urge them to fix the malpractice laws.
“I understand this came about because there were too many frivolous lawsuits, but I don’t think it’s up to legislators to determine whether a lawsuit is frivolous. It’s up to the court system. That’s what they’re there for,” she said.
Dr. Moyer said he did not want to comment. Lee Health did not comment on this specific situation but explained that public hospital systems provide a lot of free care which allows them immunity from high liability claims.
DOCUMENT: Lee Heath on Sovereign Immunity