Medical Malpractice is a serious matter and is often a highly complex maze to navigate involving standard of care, expert witnesses, and the facts of a case. One of the most important actions a person who feels they may have been a victim of medical malpractice can do is call an attorney immediately for wise counsel to avoid inadvertently putting their case at risk. At Morgan Trial Law, we will be beside you through this difficult time to guide you through any challenges and keep you informed at every step.
Medical Malpractice Defined
An “action for medical malpractice,” as quoted from the statute, is a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care.
Do I Have a Case?
Determining if you have a case worth pursuing will require a close examination of the facts, medical records, and the care provided. The four elements needed to show the doctor acted negligently, resulting in the patient’s injuries, and to prove your case are:
- The doctor owed the patient a professional duty of care
- The doctor breached that duty of care
- The breach injured the patient
- The patient experienced damages from injury as a result of the breach
Some common medical malpractice claims include:
- Errors in monitoring the proper amount of anesthesia needed by a patient.
- Errors in monitoring an unborn child’s heartbeat during labor.
- Sponges and instruments were unaccounted for after surgery.
- Giving the patient medications shown to be allergens that can be fatal.
- Failure to turn incapacitated patients over allows bed sores to form.
- Lifting or transporting a patient improperly causes injury.
- Failure to properly diagnose a condition during a medical examination.
To File a Claim, Evidence to Prove Your Case Is Needed
Believing that your healthcare provider committed medical malpractice will require collecting the evidence necessary to show that a claim is warranted. With the proper supporting evidence, you will be able to recover compensation to which you are entitled by law. A few examples of evidence used to prove liability include:
- Patient medical records before the alleged malpractice
- The medical records from the visit in which the medical malpractice occurred
- Bills for medical treatment and statements of benefits
- The medical records from the doctor who provided a diagnosis of your condition after the medical malpractice occurred
- Written reports and oral testimony from expert witnesses
In addition to the evidence needed to show the doctor’s part is liable, there is also necessary evidence to show a loss. Under Florida law, victims and their families are entitled to receive compensation, both financial and non-financial, such as pain and suffering and loss of enjoyment of life. Evidence to prove loss include:
- Employment records, account statements, tax records, and other financial documentation.
- Personal testimonies from your family and friends.
- An ongoing journal, diary, or other documents showing the daily effects of the injury on your life.
Considerations Before Pursuing a Claim
Before pursuing a medical malpractice claim, several realities must be kept in mind. Much time and effort are needed to achieve a good outcome involving the attorney, the patient, or the patient’s family. The attorney needs the patient’s assistance, and working collaboratively toward a positive result will significantly improve the chances of success. The process will take time which in most cases is a matter of weeks or months, and if the case goes to trial, the process could take several years. If your claim does not reach an agreement during negotiations between the parties, then, as stated, you will have to take your case to the courts. During negotiations, the insurance company will likely offer to settle the issue. You will need to decide whether to accept the offer or go to trial, where you may receive no compensation. You must also consider that both parties may file an appeal if they have proper grounds. While this means you may still be able to recover just compensation should you receive an unfavorable verdict, the insurance company may file a challenge to the verdict to reduce the amount of the payment you received.
At the same time, many cases do not meet the threshold to proceed, or after further investigation, the facts dictate to no longer pursue the matter. Some common reasons are:
Statute of Limitations
Generally speaking, medical malpractice claims, under Florida Statutes 95.11, must be filed within two years. The two-year period begins from the point at which the patient or the person representing the patient knew or exercising due diligence should have discovered that their injury was due to malpractice. There are some exceptions, especially regarding minor children, which the attorney will help to determine if they apply to your case.
Standard of Care
The medical standard is care provided by a doctor who is reasonably skilled and competent with a comparable level of education within the same area and who would have provided a patient with the same treatment circumstances and care as other doctors in which malpractice allegedly occurred. If there is a determination that the doctor delivered the minimum standard of care, you will not be able to sue them.
A patient’s medical history may complicate determining the cause of their injuries and whether they have a claim against the doctor. A doctor can make errors that do not meet the minimum standard of care. However, the attorney must prove the mistake was most likely the cause of your injury, not just possibly, as opposed to your injury resulting from a preexisting condition.
Lack of Evidence or Speculation
In cases where negligence did occur, if the patient took it upon themselves to take action to receive follow-up care and treatment to restore their health, then the injury is resolved with no actual harm. You cannot recover for something terrible that may have happened but did not. In other cases, there may have been negligence, but there is not enough evidence to prove the claim.
Medical procedures entail a certain amount of risk, and you do not have a guarantee of a successful outcome. For the attorney to prove a bad outcome, the attorney must be able to show with specificity that an actual error most likely caused the injury.
There are several facilities and hospitals in Florida that are government-owned or managed. Due to their status, they receive protection from a legal doctrine called “sovereign immunity,” which caps how much compensation a patient may recover. By nature, a medical malpractice claim is costly due to the amount of time for discovery, expert witness fees, and the expense of obtaining records, so when is a limit or cap on the recovery, there may be no money remaining to pay the patient or claimant.
The above are some common reasons a medical malpractice claim may not succeed. Other causes include refusing treatment, rude behavior, violating your medical privacy, and suicide.
Mary Ann Morgan of Morgan Trial Law has more than 30 years of experience litigating medical malpractice claims to help clients get the compensation they need and hold those responsible accountable. She has a distinguished career marked by numerous awards for achievement as both a civil trial attorney and a community leader. If you believe the negligence of a medical provider has injured you, please call so we can advise you on your best course of action. (407) 679-9900.