What is medical malpractice? Medical malpractice or professional negligence is the failure of a health care provider to render care in keeping with good and accepted medical techniques or principles. In other words, a doctor, nurse or technician does something not in keeping with good practice, or fails to do something necessary for the patient’s good care. Who can sue for medical malpractice? When a patient is injured due to medical negligence, the patient may bring suit. If the injuries are severe, permanent and disabling, members of the patient's family – spouse, children, or parents - may have a claim. In Florida, parents can only sue for malpractice if their children are 25 or under. In this, Florida is unique. When someone dies as a result of medical negligence, the patient's family may sue under the Florida Wrongful Death Statute (F.S. 786, 17-21). But - again – parents may not sue over the death of an over-25 adult child. Nor can over-25 adult children sue over the death or injury of parents. The permitted plaintiffs (the persons bringing the suit) include the estate of the deceased person, the surviving spouse, children or parents. Who can be sued for medical malpractice? Anyone who has caused injury to the patient because of professional negligence may be named as a defendant. Claims against private individuals and medical institutions are governed under Statutes 766-768. These statutes often go through revision. Check the most recent statute book available for a true update. Governmental entities and health care professionals employed by them may stand in a different posture in the eyes of the law. For example, a suit against a hospital owned by the state, city, county or county tax assessing district must be brought under the Florida Tort Claims Act. A patient's claim is much more restricted both in what must be proven in order to establish legal responsibility as well as in the amount of damages that may be recovered. When a patient is injured in a hospital owned by the federal government, such as a Veterans Administration hospital, their lawsuit must be brought under the Federal Tort Claims Act. How long do I have to bring suit? Florida has a two-year statute of limitations in medical negligence cases. Generally, this means that the lawsuit must be brought within two years from the time the patient, family member, or guardian knew or should have known with reasonable diligence that the injury occurred with a reasonable possibility that medical malpractice caused it. Florida also has a “statute of repose,” another harsh provision in its civil laws. This means that - unless there is fraud, misrepresentation, or concealment, one can never sue a health care provider more than four years after the actual malpractice incident. So even if the family does not know or can’t be expected to know, family members cannot bring a claim four years after the incident occurs in most circumstances. Florida has one significant exception – “Tony’s law” - enacted in 1996. For malpractice incidents that occurred after July 1, 1996, the four-year statute of repose cannot cut off a child’s malpractice claim before the child’s eighth birthday. Be careful, though. The two- year statute can still cut the claim if the parents or guardians knew or should have known of the injury and the reasonable possibility medical malpractice caused it. Since the rules about limitations are often changed by the legislature, and often modified by the appellate courts, you should consult with an attorney immediately if you think your potential case could have a statute of limitations problem. How common are malpractice cases? Despite insurance propaganda to the contrary, very few patients who are injured by physician negligence actually sue. A 1991 article in the New England Journal of Medicine documented that only about 2% of patients who were injured by physician negligence ever seek compensation through a lawsuit. Medical mistakes remain a national epidemic, with Harvard studies estimating deaths as a result of such mistakes at up to 98,000 a year, more than the twice the number who die in auto accidents. What must I prove in my case? A plaintiff in a professional negligence case brought against a health care professional must introduce evidence which the court finds sufficient to establish all three of the following: Negligence Proximate (immediate) cause Damages Fail to prove any one of these elements, and your case dies. In other words, lack of adequate proof of any one of the three elements means that the plaintiff has not made their case. Negligence is defined as the failure to use ordinary care. Professional negligence is the failure of a health care provider to do something that should have been done in keeping with good and accepted medical or nursing practice or the failure to do something that should have been done in keeping with good and accepted or nursing practice. Proximate cause is a legal concept which essentially means a legal cause. One must prove that the health care provider's negligence did cause the plaintiff's injuries and that the injury suffered by the patient (or some similar injury) was reasonably foreseeable beforehand as a result of the health care provider's failure to render appropriate care. Damage is the harm done to the patient that directly results from the health care provider's negligence. It is the physical, emotional and financial harm that the plaintiff experienced as a result of the incident. How do I go about proving my case? Florida, in nearly any instance, requires proof of medical negligence by way of expert testimony. A physician who is licensed, practicing now or at the time in question, and who is familiar with the standards of good and accepted medical practice for the care in question must testify that the professional standards were not met. The expert must establish what the standards of good practice were and how the defendant, by his or her actions, violated those principles. A bad result does not automatically mean negligence. Juries are not permitted to infer negligence from bad results. If the plaintiff does not introduce the required testimony from a qualified expert establishing the negligence element, the plaintiff is said to have failed to make their case. The judge may withdraw the case from the jury and direct a verdict against the plaintiff. A jury may never be allowed to pass on the defendant's conduct in this circumstance. In most cases, proof of legal or proximate cause requires expert testimony. A qualified physician must testify that the plaintiff's injuries probably would not have occurred if proper medical practices had been followed and that the defendant health care provider should have reasonably foreseen this or some similar result. Again, at the conclusion of the plaintiff's evidence the defense may move for a directed verdict if there is not adequate expert testimony of legal cause. In some limited instances juries may infer causation but most questions of proximate cause require the testimony of an expert. Some damage elements are proved by the testimony of the plaintiff, family and friends. For example, the presence of physical pain or mental anguish normally comes from lay witnesses. The plaintiff can prove lost earnings from testimony, income tax returns or wage records. Past medical expenses are established by the bills and testimony of a medical expert that the charges were reasonable and necessary to treat the condition. Some elements of damage, such as future disability and medical expense, may require the testimony of an expert witness. Sometimes defendants appeal after the jury has found that the defendant health care provider was negligent. The appellate court then reviews the record a second time to determine if the plaintiff's evidence of professional negligence was legally adequate. Can hospitals turn away patients? Yes, but not when there is a need for emergency medical treatment. With non-emergency treatment, it can depend on whether the hospital is a public or private one. Private hospitals are not required to provide non-emergency medical treatment to people who cannot pay. Hospitals generally cannot stop treating a patient once he or she is admitted. Similarly, treatment cannot be discontinued by a hospital for nonpayment without sufficient notice to the patient. Treatment can be dropped, in some cases, if the patient is disruptive or defiant. Is misdiagnosis malpractice? Not necessarily. Medicine is not an exact science; doctors are not required to be right every time they make a diagnosis. It is a fact that a misdiagnosis can be arrived at through standard tests, even when the tests are performed accurately or evaluated by a skilled doctor with the utmost care. A misdiagnosis may be malpractice if the doctor fails to get a medical history, order the appropriate test for the illness, or recognize the symptoms of the illness. And yet, there is no basis for a malpractice claim if there is no injury, loss or damage as a result of the misdiagnosis and consequent treatment, on the theory that you are no worse off than you were before If a procedure was not successful, is that medical malpractice? Medical malpractice does not occur every time medical treatment is not successful. Doctors are not guarantors of the services which they render. A doctor is, however, required to have the necessary knowledge and experience to perform the services in question. Further, doctors must exercise the skill and care that others in the community use when dealing with similar treatments. I signed the informed consent form before surgery. Did I give up my rights when I signed? No. While the form may impose certain limits on your rights, signing a statement assuming the risks involved with a procedure does not let the doctor or hospital off the hook if they fail to perform according to acceptable levels of care. Also, there are situations where the consent is invalid, as for example, if you were not informed of the risks involved with the procedure, were misled about the surgical procedures to be done, or there was incompetence in the performance of the surgery and consequent injury. I underwent surgery which I found out later was unnecessary. Can I take legal action? If there was no legitimate medical need for the operation, or if your consent was procured by fraud, or if the surgical operation departed from standard medical practice then you may be able to take legal action. The choice of treatment is often a "judgment call" and competent physicians can reasonably disagree on choices of treatment. The doctor using his or her professional judgment may choose surgery as the method of treatment, subject to your informed consent. The critical question of liability, however, will focus on whether the operating surgeon was negligent and did not perform the operation in conformity with standard practice; not on whether other reputable professionals would have recommended other treatment. How long will my case take? Normally it takes 1 to 3 years to bring a case to conclusion. The time required varies because of factors such as the number of parties involved, the number of depositions and investigation needed, schedules and commitments of experts, the judge, and so forth. Most of the cases that we accept eventually settle. If the case is tried and you obtain a favorable verdict, a defendant has an absolute right to appeal. That appeal usually prolongs a case’s conclusion by two to four years. Although more than 80 percent of our cases settle, we find that defendants – perhaps emboldened by “tort reform” – are growing more willing to take cases all the way to trial. Will I have to attend court hearings? Not always. As your case is developed and prosecuted, there will be various court hearings on legal matters. These hearings normally involve discovery issues such as the court determining what documents must be produced when one side has objected. These type of hearings do not require your attendance or participation. If any court hearing does require you to attend, you will be notified. How will I go about paying for your time and expenses? Most malpractice cases are handled on a contingent fee agreement. We do not expect the client to pay or defray any of the expenses of developing the case until such time as a recovery is made. At that time, those expenses will be deducted from the settlement. In the event no recovery is realized, we do not expect the client to repay the out of pocket costs for developing the case. What kind of expenses are involved? The prosecution of a malpractice case is expensive. Medical records must be obtained, depositions must be taken, and experts must be paid. The investment also includes costs for exhibits and technology to fully demonstrate the devastating injuries that are personal to each of our clients. The cost for our firm to develop a medical negligence case today often runs $50,000 to $200,000. In more complex cases, this cost may be substantially higher.
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