Mississippi Way Ahead of Florida in Recognizing the value of Human Life
11/05/2008 - Riley Allen Law - Link to This Entry
In October, the Mississippi Supreme court ruled that doctors who killed a terminally ill patient should be held legally responsible to the patient's family. In 2001, Ms. Ersel Allen had been diagnosed with inoperable pancreatic cancer, and was given less than 6 months to live. She was placed in hospice, and various medications were prescribed for her to control her pain. The dosages continued to increase as Ms. Allen's pain apparently increased. Narcotic pain medication is known to depress the respiratory system, and with too high of a dose, the patient will simply stop breathing and die. This is what happened to Ms. Allen - and instead of living six months, she lived 5 weeks. The pathologist who did the autopsy found she had been given "an overwhelming lethal dose" of Dilaudid, and found levels in her body that he “had never seen before” in a human being. The real tragedy? She didn't have pancreatic cancer at all!
The doctor and hospital claimed that this minor issue didn't matter, that Ms. Allen was sick from other things and she still may have had only 6 months to live. Why - is unclear, but that's what the defense’s experts testified to under oath.
At trial against the doctor, the jury awarded $4 million to Ms. Allen's daughter, which the defense argued was too much, as Ms. Allen's prognosis was "guarded" even if she didn't have cancer, and at best, the only testimony was that she "could have" lived several more years if she hadn't died of a drug overdose caused by her physicians. Despite noting that the evidence indicated Ms. Allen "could have" lived anywhere from 6 weeks to 7 years had the overdose not occurred, the Mississippi Supreme Court upheld the verdict.
If this case would have been brought in Florida, the result? A big fat ZERO!
The case would have been thrown out and not even reached a jury. The doctors who misdiagnosed her with cancer and the doctor who killed her with the overdose of pain medication would have literally gotten away with it.
Why? There are two reasons:
- Florida law refuses to recognize the fact that an adult child of a single parent who gets killed because of a medical mistake has any claim at all. Florida's wrongful death statute specifically exempts doctors who kill patients who have no spouse or minor children from any liability for the pain and anguish sustained by the patient's family as a result of the patient's premature and needless death.
- Florida does not recognize a claim for wrongful death unless it can be proved that the patient would have been cured of his or her disease. In other words, it is not enough that someone's life was cut short by 6 months, a year or even 4 years. You have to prove that the patient would never have died from the disease, and that he or she would have been cured "more likely than not", in order to recover.
Delays and misdiagnosis of cancer are one of the most common mistakes made by the medical profession, and yet, one of the most complicated and difficult cases to successfully prosecute. Florida law places even more barriers to holding doctors accountable for mistakes they make in diagnosing patients with cancer. Many law firms won't even handle such cases. We have been successfully litigating such cases for over twenty years, and continue to do so despite the hurdles. We have also been pushing the courts to change some aspects of the law to ensure that health care providers who make mistakes that cause the death of a loved one are held accountable.
-Scott Murphy, Allen and Murphy Law
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