SOURCE: Kelley Uustal

October 17, 2013 11:09 ET

N. Broward Hospital District Sanctioned for Amendment 7 Concealment

Judge Orders District to Pay Attorney's Fees

Prominent Medmal Lawyer Robert Kelley Represents His Father in Wrongful Death Suit and Wins

FORT LAUDERDALE, FL--(Marketwired - October 17, 2013) - The North Broward Hospital District had its pleadings and all defenses stricken during trial yesterday for intentional concealment of Amendment 7 evidence. After a two-day evidentiary hearing conducted during jury selection, Broward Circuit Judge Carlos A. Rodriguez entered a detailed order finding that the Risk Management and Quality Assurance departments at Broward General Medical Center had intentionally concealed key evidence in the case and violated Amendment 7 to the Florida Constitution -- The Patient's Right to Know About Adverse Medical Incidents -- which was passed overwhelmingly by voters in 2004. The court also imposed a further sanction against the District requiring it to pay all attorney's fees and costs incurred by the plaintiff in "chasing shadows on the liability" in the case as a result of the false answers to discovery filed by the District's employees.

The case arose out of the wrongful death of Rev. Robert P. Kelley who was treated for a knee fracture at Broward General in November of 2008. Kelley, a retired minister, and former President of Women In Distress, was a prominent figure in the Broward County during his lifetime, having stepped down from the pulpit to serve as the District Administrator of HRS for the county during the administration of Governor Reuben Askew. He was also a driving force behind the City of Fort Lauderdale Housing Authority, and an associate professor of Philosophy and Ethics at Broward College. After his knee surgery at Broward General, Rev. Kelley was supposed to have been discharged home from the hospital on a blood thinner to prevent the formation of blood clots. He never got the blood thinner, and five days later he died at home from a massive pulmonary embolism caused by blood clots which had formed in his legs.

Kelley's son, attorney Robert W. Kelley, a partner at the law firm of Kelley Uustal in Fort Lauderdale, launched an investigation into his father's death the following week. During the medical malpractice presuit screening process, and again during the ensuing lawsuit, Kelley's law firm repeatedly asked the hospital to produce, pursuant to Amendment 7 of the Florida Constitution, any peer review proceedings or internal investigation that had been conducted by the hospital arising out of his father's death. Throughout the litigation, the hospital consistently denied that any such documents existed. As recently as a month before trial the hospital's attorney, Jonathon Lynn, with the firm of Chimpoulis, Hunter & Lynn in Davie, filed pleadings stating "no such records exist."

However, according to Kelley, it became clear during the evidentiary hearing and at court-ordered depositions which took place last week that the requested materials did, in fact, exist, and that they had been readily accessible by the hospital's risk management department and quality assurance department throughout the five years of litigation. According to Kelley, the hospital had conducted peer review proceedings and had undertaken its own internal investigation into Mr. Kelley's demise within a week of his death. The hospital's investigative report contained statements made by the nurses and doctors involved in Rev. Kelley's care, none of which had ever been disclosed to the plaintiff by the hospital, and which, according to Kelley, were in direct conflict with the depositions given by some of the same nurses and doctors.

The order entered by the Court striking the hospital's pleadings and imposing sanctions found by clear and convincing evidence that the Hospital District's false answers in discovery frustrated the very essence of the Florida Constitution, Amendment 7, and totally frustrated the operation of the court and the operation of justice. The Court wrote, "this was no mistake but a willful, intentional attempt to conceal the information constitutionally required and discovery required to be disclosed," and that the Hospital District "provided intentionally misleading testimony and sworn discovery … thereby derailing plaintiff's preparation of her case."

The court declined to hold the hospital's attorneys in contempt of court finding the evidence against them was lacking to support a finding that they acted willfully or in bad faith.

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