Florida Medical Malpractice Claims

Even though they may seem superhuman at times, medical professionals are humans just like the rest of us. Meaning they sometimes make negligent mistakes. Every day, thousands of people are seriously injured by the negligence of a medical provider. However, unlike the rules that apply to regular negligence, Florida’s laws regarding medical negligence are extremely complex. In fact, recent changes to these laws make filing claims more difficult for injured parties. In this article we will cover what you need to know about medical malpractice claims in Florida. 

WHAT IS MEDICAL MALPRACTICE?

The words are thrown around often, but not many people know exactly what it means. Every unsuccessful surgery is NOT a medical malpractice case. Sometimes people die or there are complications even though a surgeon or medical professional did everything to the best of their ability. Before we get to that, let’s cover the very basics. To even think about bringing a case, there must be: 

• A formal doctor-patient relationship
• The doctor or medical professional acted negligently
• The patient was injured

And to win that case, you must then prove:

• A breach of the standard of care
• Causation

That’s it. Sound simple enough, right? It’s not. 

The Florida’s Malpractice Act requires that you prove that a medical professional did not provide adequate care to you or your loved one. You, an untrained civilian, must prove a medical professional did not provide adequate care. 

Since you’re not a medical professional, in order to prove there was a breach of the standard of care, you must find another medical professional from the same field to testify in court or sign a sworn affidavit. Without this testimony or legal document your case is thrown out. For example, if you or a loved one received an inaccurate or late cancer diagnosis, you must have another oncologist testify or give your attorney a sworn affidavit backing your claim of malpractice.

Proving causation is another requirement under Florida law. Basically, you must prove that your doctor or other medical professional’s negligence caused your injury. In other words, the medical person’s actions or inactions contributed to an injury or death.

EXAMPLES OF MEDICAL MALPRACTICE

Medical professionals are human and may make mistakes. However, the medical profession is governed by established standards. When these standards are not followed, you have ground for a medical malpractice claim. Some examples of medical malpractice include:

• Misdiagnosed or undiagnosed conditions (i.e. cancer, appendicitis, strokes, or heart attacks.)
• Medication errors (i.e. incorrect medication or wrong dosage of medication)
• Birth injuries
• Surgery errors (i.e. operating on a wrong body part, leaving a tool or object inside a patient)
• Anesthesia improperly administered
• Emergency room errors
• Contracting a disease while at the hospital
• Improper treatment of a medical condition
• Medical equipment failure

STATUTE OF LIMITATIONS

One of the main difference between a regular negligence action and a medical malpractice action is the time to have to bring a claim, called a statute of limitations. 

The Statute of Limitations (SOL) for medical malpractice cases can be found in Florida Statutes 95.11(4) (b). The law states that, except in instance where fraud was present, you must file a malpractice suit within two years of the date from which you discovered the harm- or two years from when you reasonably should have discovered the harm from the negligence. 

DAMAGES FROM MEDICAL MALPRACTICE LAWSUITS

Florida used to have a “cap” on non-economic damages of $500,000 against practitioners and $750,000 against non-practitioners, but that was overturned by the Florida Supreme Court. However, there is a continuous effort in the legislature to reintroduce them. It is important to discuss your case with an attorney to understand current statutes and if any cap applies to your case.

PROVING A MALPRACTICE CASE

Similar to a regular negligence action, in order to successfully prove a medical malpractice case, several factors must be present. Below are some of the details required for one of these claims to be successful.

• Breach of the Standard of Care: The victim must provide evidence that the doctor, nurse, or other medical malpractice breached the standard of care according to the laws in Florida that were owed to you or your loved one.
  • The Florida Malpractice Act requires victims to locate a medical expert who practices in the same field as the doctor who committed the alleged malpractice. You must also obtain an affidavit from that medical expert or your claim will likely not go through.
• Proximate Causation: you must prove that the doctor’s breach was the “proximate cause” of your injury. In other words, you must provide proof that you never would have been injured if it weren’t for your doctor’s negligence.
• Damages: Be forewarned that it’s not cheap to initiate a malpractice claim in Florida. Most lawyers won’t agree to take on your case unless you were significantly harmed first. You’ll have to prove you had to endure significant medical expenses, lost time from work, and have experienced significant amounts of pain and suffering.

Relevant Circumstances

Since every situation is different, how your doctor behaves is dependent upon the surrounding circumstances. A doctor is only able to provide certain care depending on the medical equipment and what information they have available to them.

For example, if you fail to notify your doctor you’re taking a certain medication and they prescribe another medication that adversely interacts with the original medication, it’s possible your doctor won’t face legal responsibility for your reaction. That’s because your doctor did not receive enough facts in order to provide you with reasonable care.

Specialists

A doctor who is trained as a specialist has a higher level of standard of care because they have more knowledge in their field that a family doctor does.

If your injury is caused by a specialist, you would hold them to the same standard of care as other specialists within their field.

Foreseeing the Injury

You must also provide proof that your injuries weren’t reasonably foreseeable or an inevitable or necessary result of the medical treatment you received. 

In other words, if you have surgery, the surgeon must cut through your skin which may leave a permanent scar. It’s expected that there will be pain and suffering as a result. You can’t sue your doctor for this expected pain unless you can prove the doctor didn’t perform the surgery properly.

This is why detailed reports are crucial. Make sure your doctor and facility have a good reputation for documenting procedures. 

Start a Detailed Investigation

When it comes to medical malpractice claims, it’s always advisable to hire a knowledgeable attorney to help you navigate these complex issues. 

An experienced attorney will begin by conducting a detailed investigation. They will start by speaking with the victim or their family to get a detailed story and timeline to make sure you’re within the statute of limitations. 

The next step is to review the victim’s medical records. Without those records, it’s nearly impossible to prove and win a lawsuit. It can sometimes be difficult to obtain these records. An experienced attorney will know how to get them. 

Submitting Medical Records

This next step is crucial to your case. Once your attorney has obtained your medical records, their next step is to consult with a qualified medical expert for an independent review. The medical expert will review your records to determine whether or not they believe the care the victim received deviated from the national standards of care.

If it is determined your medical provider deviated from the standard of care, your expert will then determine whether or not the care the you received caused your injuries. That’s because it’s not enough to prove your doctor deviated from the standard of care for you to win your case, you must prove that their actions or inactions caused or substantially contributed to your injuries.

If the medical expert can prove that the healthcare provider deviated from providing a standard level of care and that there was causation that resulted in injuries, the next step is for the malpractice claim to enter a pre-suit.

Entering into a Pre-Suit

Just like a car accident, you claim will have a pre-suit stage, which is a time before a lawsuit is filed where you can discuss the matter with the other party in good faith. During this 90-day period, the healthcare provider whom you are pursuing a claim against will conduct their own good faith investigation to determine whether any deviations occurred. After 90 days, the healthcare provider may take one of the following actions:

• Make a monetary offer to settle the case
• Deny the claim
• Do nothing

At this point, the victim and their attorney will discuss their options and decide whether or not they want to continue to pursue a lawsuit against the negligent parties.

If you or a loved one is injured due to the negligence of a medical provider, call Jaime “Mr. 786Abogado” Suarez today!