If you think you may need a medical malpractice attorney, the information below could help you. Doctors injure people all the time, and many people suffer serious injuries or die as a result. According to recent studies, somewhere around 250,000 people die each year because of medical malpractice. Assuming these statistics are accurate, that makes medical errors one of the leading causes of death in our country. Therefore, medical malpractice is one of the most common causes of personal injury lawsuits in Florida.
When a doctor damages a patient as a result of the doctor’s negligent actions or omissions, the patient may be able to sue for medical negligence or medical malpractice. Chapter 766 of the Florida Statutes governs medical malpractice actions in Florida and details the procedural requirements for Florida medical malpractice claims.
A doctor commits medical malpractice when he or she fails to meet the standard of care in providing medical services to a patient, which results in the patient’s injury, illness, or death. Typically, the standard of care is established through the testimony of an expert witness. Florida, like many other states, imposes some serious procedural restrictions on medical malpractice claims. If a plaintiff does not follow these restrictions, it could delay the claim, or worse, cause the plaintiff to miss the statute of limitations deadline.
What Are Common Reasons for Filing a Medical Malpractice Lawsuit?
There are many types of medical malpractice, and we will list some of the more common examples of medical malpractice below. That way, you can gain a better understanding of what medical malpractice is and whether you or your loved one may have suffered from medical malpractice. Keep in mind, proving medical malpractice requires an analysis of each specific situation and the surrounding facts and circumstances.
The worst possible outcome of medical malpractice is the death of a patient. Any number of the types of medical malpractice discussed below can cause the death of a patient. Whether a doctor administers an improper dose of medicine or a surgeon cuts the wrong structure during surgery, medicine is fraught with hazards. As a result, medical malpractice is one of the leading causes of death in America. When a family loses a loved one during a medical procedure, it can be heartbreaking and traumatic, and a wrongful death claim may be a good option. However, the Florida Wrongful Death Act seriously restricts who may bring a medical malpractice wrongful death claim and the types of damages that may be recovered. Thus, if you lost a loved one due to medical malpractice, you should consult with a Florida medical malpractice lawyer right away.
Birth Injuries and Injuries During Labor
When a baby is being born, the baby may suffer from injuries that occur before, during, or immediately after the birthing process. Healthcare professionals are supposed to give a mother and baby quality care during the birthing process. Sometimes, however, mistakes occur. Some mistakes that occur during childbirth may include improper use of forceps or improper vacuum delivery, not performing a C-section when a C-section was necessary, not properly monitoring the baby during the birthing process, or otherwise injuring the baby during birth. Birth injuries are a heartbreaking occurrence and a leading cause of medical malpractice lawsuits.
Failure to Diagnose
If a doctor fails to take the proper steps to diagnose a patient’s condition, the doctor may be liable for medical malpractice. A common example of a failure to diagnose is where a patient has cancer, and the doctor fails to recognize the cancer on a radiograph or other image. Similarly, a doctor may fail to connect the dots between a patient’s complaints and the underlying condition. Failure to diagnose is a common and serious form of medical malpractice, and when cancer is involved, the patient may lose precious time as a result of the doctor's negligence.
Like a failure to diagnose, a doctor may negligently delay diagnosis by not properly identifying a patient’s condition. Delayed diagnoses can result in a much more serious problem than would have otherwise occurred if the doctor properly diagnosed the condition. For example, if a doctor delays diagnosis of cancer because of negligence, the patient may lose valuable time with his or her family and suffer excruciating pain as a result. Therefore, delayed diagnosis can be a very serious and tragic form of medical malpractice.
A misdiagnosis is very similar to a claim for failure to diagnose a condition. Where a doctor incorrectly diagnoses a patient’s condition or misdiagnoses a patient’s condition, the patient and the patient’s family can suffer as a result. For example, a misdiagnosis of cancer or some other serious health condition can cost a patient valuable time, and the patient may suffer as a result of that misdiagnosis. Many serious health problems can be mitigated if treated early. Therefore, a misdiagnosis of a serious condition is a common and serious form of medical negligence.
A surgical mistake can result in tremendous and lasting damage to a patient. We have all heard about the most egregious forms of surgical mistakes. For example, a doctor may negligently amputate the wrong limb. Another example of an egregious surgical mistake is where a doctor leaves a foreign object or foreign body inside of a patient, or where a medical professional leaves a clamp on a patient's blood vessel. The quintessential example of this type of medical negligence is where a medical professional leaves a sponge inside of a patient after a surgery. These types of surgical mistakes are inexcusable and could easily be prevented if the medical professional exercised reasonable caution.
Another example of medical negligence is pharmaceutical errors. A pharmaceutical error could occur in a number of ways. For example, a doctor may commit medical malpractice by prescribing the wrong medication for a patient. Another example of a pharmaceutical error is when a doctor fails to adequately review the patient’s list of prescriptions before prescribing a medication that has a horrible interaction with a medication the patient is already taking. In the same way, a doctor may not review a patient’s list of prescriptions and the patient suffers harm during a surgical procedure as a result. Unfortunately, pharmaceutical errors are a common cause of medical malpractice claims in Florida.
For an anesthesia error to constitute medical malpractice, it must be shown that the doctor or medical professional breached the standard of care or otherwise acted negligently in the administration or monitoring of anesthesia, which resulted in harm to the patient. There are serious guidelines and protocols that must be followed during the administration of IV anesthesia. A common example of medical malpractice is where a medical professional fails to follow these IV protocols and the patient suffers severe injuries or death as a result. Anesthesia errors are inexcusable and are often the result of preventable medical negligence.
Not only are medical doctors held to a standard of care, but dentists also are held to a standard of care. Furthermore, specialists like endodontists and implantologist may be held to the higher standard of care of a specialist if they negligently injure a patient. Dental malpractice can result in serious damage, such as when a dentist fails to diagnose oral cancer or where a dentist negligently causes serious infections or nerve damage. Nerve damage in dental malpractice can drastically alter a person's social life because it can cause difficulty speaking and eating. Similarly, extreme infections and osteomyelitis can result in a patient's loss of valuable bone, which can require serious surgery and even autogenous bone transplants. In the most egregious of dental malpractice cases, patients can die because of serious infections or sepsis.
Where a manufacturer of medical equipment or medical products sells or distributes a product that is dangerous or defective, or a product that has an inadequate warning, that manufacturer may be liable. In the case of a defective product, the doctor, hospital, clinic, or retail supplier may be liable, depending on the circumstances. Although injuries from a medical product may occur in a medical setting, these types of claims are typically brought under the legal theory of products liability if the defective or dangerous product was the cause of the patient’s injury. Products liability cases do not involve the same hurdles as a medical malpractice lawsuit. Some of the more common examples of defective medical products that have gained national attention are the class action lawsuits involving breast implants or the class action lawsuits involving hernia mesh.
How to Prove Medical Malpractice
Medical malpractice involves four (4) major elements that the plaintiff or medical malpractice lawyer must prove by a preponderance of the evidence.
- Duty. The medical malpractice lawyer must prove that the doctor owed a duty to the plaintiff. This can typically be proven by showing that the plaintiff was a patient of the defendant doctor at the time of injury.
- Breach. The lawyer must show that the defendant doctor or medical professional provided care that fell below the standard of care. Typically, the lawyer will work closely with a medical expert who is qualified to opine as to the standard of care in a particular field of medicine or specialty.
- Causation. The medical malpractice lawyer must show that the defendant doctor’s breach of the standard of care caused the plaintiff damages, such as physical harm, illness, or all of the above.
- Damages. Finally, the medical malpractice lawyer must show that he or she suffered damages as a result of the doctor’s breach of the standard of care. Typically, these damages must be measurable or compensable, like a dollar amount.
Florida Notice of Intent to Initiate Litigation in Medical Malpractice Claims
Florida law requires that a plaintiff serve the offending medical professional with a notice of intent to initiate litigation (“NOI”) before filing a medical malpractice lawsuit. The idea behind the NOI is to prevent frivolous medical malpractice lawsuits. The NOI must include an expert affidavit from a medical professional that works in the same or similar field as the offending medical professional. This expert affidavit will essentially contain the opinion of the expert witness as to how the offending medical professional breached the standard of care.
The NOI starts the clock on an investigatory period that lasts 90 days. During this 90-day investigatory period, the statute of limitations is tolled. In other words, the NOI pauses the statute of limitations on a medical malpractice claim, and thus the clock temporarily stops running. Once the investigatory period is over, the plaintiff will have 60 days or until the statute of limitations runs to file a lawsuit, whichever occurs later.
Florida Statute of Limitations in Medical Malpractice Cases
In Florida, the statute of limitations for a medical malpractice claim is two years from the date the malpractice occurred or two years from the date at which the patient discovered the injury or should have discovered the injury. Regardless of when the patient discovers the injury, Florida has a statute of repose, which bars medical malpractice claims after four years from the date the malpractice occurred. Although the statute of repose bars a vast majority of medical malpractice claims brought after four years, the Florida statutes provide an exception where the offending medical professional fraudulently concealed the negligence or otherwise intentionally deceived the patient in an effort to prevent the patient from discovering the damage. In cases where this exception is met, the statute of limitations may be extended to seven years from when the malpractice occurred.
Costs of Medical Malpractice
Medical malpractice can carry grave financial and personal costs. The cost of past and future medical bills and lost wages can put an intense strain on a person and his or her family’s finances. In addition, the pain and suffering caused by medical malpractice can also be significant, both for the injured plaintiff and his or her family. Therefore, when medical negligence causes harm to someone or causes the death of someone, the injured person or the person’s family may be able to seek compensation from the doctor, hospital, or staff whose negligence or malpractice caused or contributed to the injury.
Here’s the reality, insurance companies have spent countless dollars to promote the idea that medical malpractice cases are bad for our country and for the healthcare system. In our opinion, these claims are meritless and misleading, albeit probably money well spent for the insurance companies. Medical malpractice cases act as a check and balance on doctors, nurses, and hospitals. Without this check and balance, we can all see how patient safety would become an afterthought, and more people would needlessly suffer as these big businesses attempt to increase efficiency and profits at the cost of patient safety.
Whereas the criminal area of law punishes people by taking away their freedoms, the civil area of law makes wrongdoers pay with money. Money gets the attention of wealthy corporations, insurance companies, and careless people. Money changes their behavior. Thankfully, healthcare providers are typically required to carry some type of professional liability insurance coverage. Thus, medical providers are not usually personally liable for a settlement or verdict against them, unless they commit some kind of intentional or especially egregious act, or if they otherwise do something to void their insurance policy. Instead, the insurance company will typically pick up the tab in a civil lawsuit where there is insurance coverage.