Attorney Joe Osborne: Birth related Brain Injuries, and advocating for Florida Families (Part 3-3)

Hello and welcome everyone to another episode with Coffee with Q. I'm Renee Parra, your host and legal news reporter. Coffee with Q is dedicated to helping consumers find justice. Today we have the pleasure of speaking with Joe Osborne, a seasoned and accomplished medical malpractice trial lawyer with extensive experience in advocating for patients' rights. Today's shows will be focused on the potential complications arising from birth-related brain injuries that women and their families are facing in Florida medical facilities. Joe Osborne, our guest, has specialized in this area of law for nearly 30 years. Like to welcome Joe. Thank you for joining us today.

Thank you for having me.

So the theme that we're going to be on today is, you know, birth-related brain injuries that Floridians. some Floridians may be experiencing. What role do medical experts play in your legal cases?

Well, in a birth injury case, experts are everything. And just to give you a sense, I've been handling these cases for well over 3 decades, and we deal with experts in medical specialties involving OB-GYN, Nursing, uh, maternal fetal medicine, uh, placental pathologists, pediatric neurologists, physical medicine and rehab, life care planners, pediatric neuroradiologists, voc rehab specialists. I mean, it is— it goes on and on and on. In fact, there is no case that I can think of, and from a medical malpractice perspective, for which you need more experts in a case than this, especially when it comes to evaluating the negligence issues of how the care was provided or not provided. And then you have just so many causation issues to deal with in terms of what the characteristics of the placenta were. Was the acidosis— what caused the underlying acidosis in terms of the lack of oxygenation? What other underlying characteristics may have been in the family history in terms of Things maybe that were not in, you know, hypoxia-related that have caused, could have caused the outcome that was suffered by the child. And that could be the family history of the mother, the family history of the father. There's just, it's a very, very complicated scenario for which, and many times we may have 10 to 15 experts in a case. And of course, in Florida under 766, we need those experts not just in a birth injury case, but any case. In order to give us an affidavit of a good faith basis of a claim in order to get into the notice of intent and pre-suit period under 766, which is required in any medical malpractice case. So these are very, very expensive, costly cases, but you have to hire the right experts. We hire the best experts we can. across the United States to help in these cases. And it's important that you do that or you really have no chance of really proving the viability of your claim.

It's the first time that I hear about 766. Is that a statute? Is that a law? What is 766?

So Florida Statute 766 is our pre-suit period requirement in the state of Florida. So for instance, if I get approached about a case, about a malpractice case and I believe it's a case, I cannot walk down to the courthouse and file your case. What I have to do is I have to get an affidavit. Let's say it's, it's a birth injury case and we believe the OB-GYN was negligent. I have to go hire an independent expert to review the medical records and give me an affidavit that says, based upon the materials that have been reviewed, that there is a good faith basis to bring a claim. I take that affidavit, I put, put together what's called a notice of intent to initiate litigation. I attach those 2 things and I send them to the OB-GYN who we are about to sue, at which point they— that OB-GYN or whoever the defendant is has 90 days to do exactly what I just did under 766, review the medical records, hire their own experts, do all those things, and at the end of the 90 days can make a decision. Um, you know, do they believe we have a case? Do they want to try to resolve it? They can tell us to go pound sand. Um, and 99.9% of the time, regardless of how good the case is, the medical providers say go pound sand, we don't think it's a case. And then once the case is denied under 766, I can then walk down to the courthouse and file my lawsuit.

So nothing can happen unless everybody's done their due diligence and done the 766?

That's right.

Okay.

It's all of the pre-suit requirements by law under the state of Florida, by statute, required in the medical malpractice case.

How does Florida law support families seeking compensation for brain injuries?

Um, I think the one good thing that we have here, which not a lot of states do, is we have no caps on damages. So, um, so for instance, there are many states— I've lost count, but there's probably 25 to 30 states to where They have caps on pain and suffering, non-economic damages. So regardless of the injury and/or claim, you can never recover more than $250,000 for non-economic damages. Here we don't have that in Florida. Economic damages, things like future medical bills, loss of earnings, loss of potential, those, those are what they are. Those are the economic damages suffered by the injured person, and, and those, those damages, assuming you win the case, uh, can be paid, and there is no cap on them. But in Florida, we also have pain and suffering damages. You know, what does mom and dad, and what is baby now going to experience for his or her life over the course of time, and the pain and suffering of now having a catastrophically injured child? Well, in some states, mom and dad could never recover more than $250,000, and neither could the child on the non-economic pain and suffering side. But in Florida, we have no cap on those damages. So a jury can award $10 million for future medical needs and $10 million for pain and suffering, non-economic damages. And here in Florida anyway, that award would be $20 million because we have no cap, as I stated.

Was there a point, uh, in Florida law that there were caps?

Yes. There were?

Okay.

Yes. We had the Florida Supreme Court overturn that approximately 10 years ago. So as we sit today, there is no cap on non-economic damages in the state of Florida.

Well, that sounds like that's better for families here in Florida.

Yes.

How can families ensure they're receiving proper medical care after a suspected brain injury?

That's a great question, and it all starts with the pediatric neurologist. Um, one of the things that I think we've really learned in these cases is that— and this makes sense— with a brain injury, the neurologist really becomes the captain of the ship. And a pediatric neurologist is someone who specializes, obviously, in brain injuries and other types of, you know, brain dysfunction on the part of children and pediatric patients. And the one piece of advice I would give any family, regardless of the case, whether there's a case or not, If your child is having an underlying brain problem, either caused by hypoxia or otherwise, make sure you have a great pediatric neurologist who can follow your child from a neurological standpoint, following the injury and overseeing the care that's necessary from a recovery standpoint. That can include physical therapy, occupational therapy, speech therapy, you know, neuropsychological testing, all the things that are needed in order to kind of make sure that the benefit of the therapies and treatment to treat these injuries is fully, you know, is fully realized by the child. Children can make improvements, and it's important that you have a good pediatric neurologist on board to make sure, as a captain, as the captain of the ship of your child's care and future, all of that is being addressed in the right way.

I hope I have never to go through something like this, but it must be heart-wrenching for parents Sure. So what advice do you give parents when they're navigating the emotional and legal aspects of a brain injury case?

I mean, it kind of dovetails what I was just saying, which is really focus on the care for your child. Make sure that the right specialists are in place. You know, I had a case not too long ago where a child was catastrophically injured after after a birth situation, and it was a situation where he developed significant hypoxia. There was not a conversion to a C-section in a timely manner, and he developed a significant injury. There is now something called— it's called a cooling procedure, where the child was taken over to a university-based hospital and was put within what's called a cooling program, which is designed to shrink or really lower the body temperature of the child, which is also designed to in theory limit the progression of the underlying brain injury when the body temperature is taken down to, you know, real, real low certain levels. And gosh, I got to tell you, um, you know, if this— that was probably about— oh man, I don't know, within the last 10 years. And when I see videos and pictures of this child today, you would never know anything even went wrong, was ever wrong with him. Um, he made an Amazing recovery, goes to school. If he walked into the room, you would never know something like this happened to him. The parents did an amazing job of then taking him. You know, obviously, he had gotten that cooling mechanism treatment and then got all the right therapies after that, which is just as important. And he made a remarkable recovery. And from the standpoint of, you know, advancing science and taking advantage of it, it really made an impact on this child and really saved the kid's life. So, um, there are, there are, there are, there are what may feel like a long fight and a struggle. Um, let us focus on kind of the, the legal side of it. Focus on getting your child as, as, you know, as well as possible. And that typically requires a good pediatric neurologist, the right therapies, the right team. And let's see what happens.

Was this, was this a case that, uh, you took to trial or you settled? Or was it just somebody you met that actually had issues but had a good outcome?

No, it actually was, you know, it's one of those stories where I sat down with the family and I said, look, if your child gets better, it's not good for the case. But let's pray that, let's pray that this happens because obviously we will adapt. It was a case that we took and we fought because the care that was provided in the hospital was not great and ultimately led to the outcome. But good news for the family, bad news for the case. But obviously, I was thrilled for them. He got he got he really did improve a lot, and we were happy to just kind of we settled the case. We we didn't settle it for anything near which we thought it was worth to begin with. But guess what? That was good news for everybody because the fact the kid had made a tremendous recovery was a miracle for the family. It was a miracle for him. We were happy at that point to just, you know, say, you know what, he made a great recovery and, and, and we're thrilled all around. And, and we just adapted in the case accordingly.

Well, that's a nice way to end our, our show today. Uh, to find out more about Joe Osborne, full tort trial lawyer with Osborne and Francis, you can visit www.realtoughlawyers.com, or you can call Joe directly at 561- Thank you, Joe, for coming on the show. Like always, I always like hearing your experience. It was certainly helpful for me today, and I'm sure our audience as well.

Thank you, Renee. It was a pleasure to be here.