Photo of Litigation Blog James C. Sawran jsawran@smsm.com
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James C. Sawran is the managing shareholder of the firm's Ft. Lauderdale office. He defends professionals and healthcare clients in a range of high-stakes litigation …

Showing 5 posts by James C. Sawran.

The Death of Impartiality - "Dr. Death," Reptilian Tactics, and Fighting Juror Bias

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This summer saw the release of Dr. Death, a crime miniseries telling the “true story” dramatization of neurosurgeon Dr. Christopher Duntsch – who is currently serving a life sentence in the Texas Department of Criminal Justice prison system for paralyzing one of his patients during a spinal surgery. In three years of practice as a neurosurgeon, Duntsch gained a reputation for arrogance and gross negligence in the operating room, eventually leading to the suspension of his medical license only after he had caused serious and permanent harm to dozens of patients. Overarching the series is the core question of how a doctor like Duntsch could continue to practice for so long? The writers point the finger at a few different targets, from Texas tort reform legislation that purportedly left Duntsch’s patients powerless to for-profit medical institutions that allegedly tried to quiet word of his misconduct for their own gain. Ultimately, the series pushes the theme that our medical system is immoral and broken – even ending with the ominous warning “this will happen again” – but for lawyers defending medical professionals the series offers a different warning – one of reptilian tactics and unfair bias against medical professionals. More »

Malpractice Mayhem: An Insurer's Standing to Sue Counsel Retained to Defend Its Insured

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Recently, the Florida Supreme Court opined on the ability of an Insurer to bring suit against counsel it hired to defend its Insured and affirmed that an Insurer has not only the right, but the standing to do so, in certain circumstances.

In the matter of Arch Insurance Company v. Kubicki Draper, LLP, SC19-673, the Florida Supreme Court reviewed and heard argument as to why Arch should or should not be allowed to sue Kubicki Draper for malpractice after Kubicki Draper represented and settled a suit for one of Arch’s insureds. In Arch, the trial court and Fourth District Court of Appeal both found that Arch did not have standing to sue Kubicki Draper as it was not in privity of contract with the firm; however, the Fourth District Court of Appeal certified the following question of great public importance: Whether an Insurer has Standing to Maintain a Malpractice Action Against Counsel Hired to Represent the Insured Where the Insurer has a Duty to Defend. More »

Immunity From Liability For Healthcare Facilities and Healthcare Professionals in the Continuing Battle Against the Covid-19 Pandemic

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Since the beginning of the COVID-19 pandemic in March 2020, local, state and federal authorities have sought out ways to address the many issues presented by the pandemic. One such issue is how to address the legal issues facing healthcare workers, who place themselves at risk of contracting the disease every day, and whether these workers and medical facilities should be shielded from criminal or civil liability based on difficult treatment decisions.

As the number of COVID-19 patients continues to rise in the US and worldwide, hospitals and doctors are faced with the decision of how to allocate scarce resources, such as ICU beds, ventilators, and time spent by staff treating an individual patient. An example of one such allocation decision is whether a healthcare worker should administer CPR for a patient who is crashing. More »

In Defense of Long-Term Care Facilities: Immunity, and What to do if There is Not Any

COVID-19 cast the entirety of the healthcare system into uncertainty. This is acutely evident in the long-term care setting, where per capita fatality rates remain high. The reasons? (1) The elderly and those with underlying health conditions are most susceptible to severe illness from COVID-19; and (2) those in close quarters, unable or unwilling, to observe social distance parameters, are also at increased risk. When you combine those two risk factors in one setting, this explains the reason that long-term care facilities were, and continue to be, hard hit by COVID-19.  More »

Retro-Fitting Reservations: The Re-Opening of Restaurants Amidst the COVID-19 Crisis

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The restaurant business, a staple of American life. Eating out offers the opportunity to skip the cooking, be waited on and enjoy a variety of foods you would not otherwise prepare at home. Restaurants also provide the venue for those special occasions with friends and family - birthdays, anniversaries, graduations, and other memorable events. The establishments providing these services are known not just for their food, but for their ambiance, entertainment and social value. However, as the COVID-19 Coronavirus began impacting the United States, governments of the various states immediately took action to stem the spread of the virus. First and foremost, social distancing measures were implemented to ensure that individuals maintained a "safe and healthy distance" from one another - this required restaurants to immediately close their doors to the public. During the pandemic, restaurants began to adapt and allowed patrons to purchase food "to go", albeit via delivery or pick-up, but pick-up mostly required people to remain outside while employees, donned in surgical masks and gloves, brought the food to your car. Where does this leave us now? As the various states begin to "re-open," will restaurants return to what we consider "normal" or will the dynamic of the restaurant industry change in an effort to keep its employees and customers safe, and prevent liability for the unintentional transmission of COVID-19 or any other disease? After all, eating is one activity that cannot be accomplished whilst wearing a mask. More »

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