Florida Malpractice Law Versus 84 Year Old Man’s Family – Not A Fair Fight

Does the medical profession in Florida get a free pass when it injuries or kills an 84 year old man? You bet it does. The story of Fred Brittain, deceased (possibly as a result of medical malpractice), and his daughter Victoria Brittain shows why. When Fred died in 2002 his family felt it was caused by medical errors. Twelve law firms were contacted regarding the potential claim and all twelve declined. Why? They told the Brittains that his age and past medical problems made the case a financial risk.

Without even looking at the medical records, I can understand why all 12 firms declined. They declined because Florida law has intentionally erected so many limitations, barriers and hurdles for malpractice claimants that medical lawsuits on behalf of 84 year old citizens would be the least likely to be prosecuted by any experienced trial lawyer.

The Brittain trial is apparently scheduled for January, 2006, in Pasco County. Probate Attorney Jon Newlon has stepped forward to provide representation. Jon is to be applauded for his compassion and assistance. Will justice be done? Probably not. That is how I see it. And, that is exactly what the law in the State of Florida expects will be the case.

The story of the Brittain family struggle for justice can be found at TBO.com.

DADE CITY – For the past year, Victoria Brittain has been acting as her own attorney.

Convinced her father had died unnecessarily and unable to find a lawyer to take the case, she filed a lawsuit herself against three doctors, East Pasco Medical Center and others she held responsible for his death. Since then, she and her mother, Alicia, have answered interrogatories from defense attorneys, negotiated settlements, taken witness depositions and appeared at hearings. All the while, some of the doctors’ attorneys dogged Brittain with claims that she was practicing law without a license.

Last week, a judge agreed, telling the Brittains they could not continue pursuing their claim without an attorney. Circuit Judge Wayne Cobb told them that if they appeared at their Jan. 23 trial without a lawyer, their lawsuit would be dismissed.

That’s when Jon Newlon stepped in, volunteering to help. Newlon, a lawyer based in San Antonio, normally handles estate and probate law but agreed to take the case after sitting in on last week’s hearing with the Brittains.

“I think [Cobb] made the wrong decision, and normally I’m a big Judge Cobb fan,” Newlon said. “But the situation for them was either have a lawyer or all the work and headache they’ve put into this is wasted. It’s just not fair.”
Probate rules require that the personal representative of an estate be represented by an attorney “unless the personal representative remains the sole interested person.” In this case, the plaintiff is the estate of Brittain’s father, Fred Brittain.

A defense attorney in the case argued Victoria Brittain could not represent her father’s estate because she was not the estate’s sole beneficiary. Alicia Brittain also was named as a beneficiary. Newlon said he was willing to put the estate into Victoria Brittain’s name alone. But Cobb barred both the Brittains from continuing the case anyway.

The ruling shocked Newlon and the Brittains. Victoria Brittain said she expected to be told she could no longer continue the case, but barring her mother would have left them with no recourse had Newlon not stepped in. Brittain said she thinks the doctors’ attorneys are using the unlicensed practice claim as a ploy and that they thought she and her mother “would just go away.”

“If they really thought I was practicing law illegally they should have taken care of it long ago,” she said.
Newlon’s help brought a sense of relief to the Brittains, who had tried for months to find a lawyer willing to fight for Fred Brittain. They contacted 12 law firms. Everyone said no.

Fred Brittain, a retired pilot, was 84 when he died in 2002. The lawyers they approached told the Brittains that his age and past medical problems made the case a financial risk.