Hospital Medical Malpractice: Delay Causes Second Stroke

Angel Acosta suffered a stroke while being seen at North Shore Hospital in Miami. He and his wife Maria sued Leon Medical Centers Health Plans, doing business as HealthSpring, which provided Medicare insurance benefits to the couple, for failing to authorize transportation from North Shore Hospital to the University of Miami, where a life-saving procedure known as a carotid endarterectomy could have been performed before he suffered another stroke.

The delay in authorizing his transfer resulted in his suffering a second stroke four days later. The Acostas allege that the delay in Leon’s authorization was due to HealthSpring’s trying to find a cheaper facility than the University of Miami to perform the procedure. The lawsuit was based upon breach of contract for the clerical error in not authorizing the transfer rather than for medical malpractice.


Upon the Acostas’ filing of the lawsuit, HealthSpring moved to dismiss the complaint for failing to attach the policy and sought to remove the case to federal court. At no time did HealthSpring plead that the Acostas had failed to comply with Florida’s rigorous and burdensome medical malpractice pre-suit requirements, which are a costly and complicated legal gauntlet that injured patients are mandated to cross.

The Acostas filed an amended complaint, in which they sued North Shore Medical Center and the doctor who treated him there, Rehan Naqui, M.D. In the amended complaint against these new defendants, the Acostas complied with the pre-suit requirements in accordance with the medical malpractice statute.

HealthSpring moved to dismiss the case against it, claiming that its involvement was medical negligence rather than ordinary negligence and therefore would have required the Acostas to serve it with the pre-suit medical negligence Notice of Intent. The trial court agreed and dismissed the Acostas’ case. An appeal followed to Florida’s Third District Court of Appeal.

At the core of the Third’s analysis is whether or not a delay–albeit a critical delay–in authorizing and arranging transportation for an insured is a clerical mistake or medical malpractice. And the court ruled, I believe correctly, that an administrative delay and refusal to provide authorizations are ordinary negligence rather than medical malpractice; therefore, the Acostas were not required to file the pre-suit Notice of Intent.


The court went on to opine that even if this case had been one of medical error, HealthSpring failed to object or raise an affirmative defense in its answer to the original or first amended complaint and thereby waived the requirement. By the time HealthSpring raised the issue in the Acostas’ second amended complaint, the two-year statute of limitations had passed, making it an impossibility for the Acostas to provide timely pre-suit notice.

This case highlights a continued pattern of brave opinions by Judge Leslie B. Rothenberg. It is not often we see a case decided against an insurance company, doctor, or hospital, particularly one involving issues of medical malpractice or neglect. I applaud the courage Judge Rothenberg has shown in both her opinions and dissenting opinions to do the right thing for victims of corporate greed. Read the entire court opinion here.

Our Miami Florida hospital mistake lawyers are also passionate about protecting the legal rights of injured patients and their families. We offer a free initial legal consultation to anyone who has been harmed by a hospital, doctor, or insurance company that has chosen its profit over the wellbeing of the people it is obligated to care for.

Currently, our office is investigating cases for people who have been injured by the use of defective medical devices, such as an artificial hip implant made by Stryker and De Puy, as well as cases where a bone growth product called Infuse was used. If you have a question or concern about a potential claim, please Email me, Spencer Aronfeld, or call our personal injury attorneys in Miami at 305-441-0440 or Toll Free: 866-597-4529 today.