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Medical Malpractice

Here’s what you need to know if you’re considering a medical malpractice claim

The United States has some of the highest standards in medical treatment. Millions of people throughout the country receive medical treatment without any incident, but that doesn’t stop thousands of people from being injured or dying every year while visiting a healthcare professional. Additionally, the number of fatalities caused by medical malpractice is so significant that it needs to be inserted as one of the most common causes of death in the United States.

Medical malpractice claims

A claim for medical malpractice arises when a patient is harmed by a medical professional who fails to perform medical duties according to the appropriate standard of care. In order for a victim to recover compensation for the injuries that he has suffered because of medical malpractice, the plaintiff has the burden of establishing certain legal elements. These must be proven by a preponderance of the evidence, meaning that the evidence weighs more in favor of the plaintiff than the defendant, or to put it simply, “more likely than not.” To give you some context, a criminal trial requires that a defendant be proven guilty “beyond a reasonable doubt.”

The elements that must be proven here include:

Duty

A duty must have been owed to a patient by a healthcare practitioner charged with that patient’s care. The doctor-patient relationship is a common example of a situation where that duty would exist.

Breach of standard of care

The healthcare practitioner who had the duty of care for that patient must have failed in his/her duty by not exercising the degree of care or medical skill that another healthcare professional in the same specialty would have used in an equal situation. (This is when an expert is often called in to testify as to what an appropriate standard of care would be.)

Causation

It is not enough to show that the victim was unhappy with the results of medical treatment or even that he was injured. Injuries may still result even when doctors do everything in conformance with the standard of care. There must be solid proof that the breach of duty by the healthcare practitioner caused the patient’s injury. The plaintiff has the responsibility to show that the medical professional’s deviation from the standard of care caused the patient to suffer harm. There needs to be negligence. Causation can be difficult to prove in the medical malpractice context because the patient might have had something wrong with him before seeking treatment. Since the plaintiff has the burden of proof in medical malpractice cases, he must usually show by evidence that convinces the jury that the healthcare professional’s actions or lack thereof is what caused the actual injury and that it deviated from the normal standard of care.

Medical malpractice can take many forms. Here are some examples of medical negligence that might lead to a lawsuit:

  • Failure to diagnose or misdiagnosis
  • Misreading or ignoring laboratory results
  • Unnecessary surgery
  • Surgical errors or wrong-site surgery
  • Improper medication or dosage
  • Poor follow-up or aftercare
  • Premature discharge
  • Disregarding or not taking the appropriate patient history
  • Failure to order proper testing
  • Failure to recognize symptoms

While causation must be proven in most cases, there are some instances where a victim does not have to show causation. This is when the nature of the mistake is so obvious that an expert witness does not have to explain how it could cause harm. This may occur when a doctor leaves a medical instrument, sponge or towel in a patient who later developed symptoms or an infection.

Damages in medical malpractice cases

The victim must have suffered some damages due to medical negligence in order to be successful with his or her medical malpractice case. For example, he or she may have incurred additional medical expenses to fix the problem, lost work due to the problem or had his or her romantic relationship suffer as a result of the medical mistake.

Medical malpractice cases must be brought soon after the injury. In most states, you must bring a medical malpractice claim fairly quickly — often between six months and two years, depending on the state. If you don’t file the lawsuit within the specified period of time, the court will dismiss the case regardless of the facts. When the time period starts ticking also depends on the state. In some states, the clock starts when the negligent act occurred; in others, it starts when the patient should have discovered the injury.

Starting a medical malpractice case

Most health care providers try to provide a high standard of care, but bad things do happen. If you had a medical experience that harmed you, you could be entitled to compensation in a medical malpractice lawsuit. The basic steps to follow to file such a case are: Determine the statute of limitations for filing a medical malpractice lawsuit in your state. Determine if your state requires you to obtain a “certificate of merit” from a medical expert for a malpractice lawsuit to proceed through the legal system. There are 28 states that have such a requirement for a certificate of merit. Conversely, 32 states and Guam have laws about minimum standards for expert medical witnesses who testify in a medical malpractice lawsuit.

Medical malpractice in Florida

In Florida, you need to serve a medical professional with a notice of intent prior to starting your medical malpractice case. This should include an affidavit from a health care professional saying that it’s a valid medical malpractice claim. This sets off a 90-day settlement period during which the statute of limitations (generally two years from when the injury was discovered) is tolled. If the medical professional does not want to settle, you get another 60 days to file your lawsuit or the remainder of the statute of limitations, whichever is longer.

The exception to this is if the health care provider tried to conceal the malpractice by fraud or deceit. If that’s the case, then the statute of limitations is two years from when the injury was discovered or seven years from when the malpractice happened. This doesn’t apply to minors if the malpractice occurred before his or her eighth birthday.

This alone can cause lawsuits and cases to be dismissed or dragged on for a long time. It is best to consult an attorney with experience to assist you in starting a malpractice case.

Damage caps in Florida

Florida made a major change to its damage caps laws in the summer of 2017. There used to be caps on medical malpractice damages in terms of non-economic damages (AKA, damages that are not discernable by receipts or bills – pain and suffering, companionship, etc.). Florida capped non-economic medical malpractice damages at $500,000 for practicing health care professionals and $750,000 for non-health care professionals.

This was changed in 2017 when the state Supreme Court struck down that provision as unconstitutional because it violated the Equal Protection Clause. Now there is no limit to non-economic damages for medical malpractice cases.

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