Medical Malpractice Frequently Asked Questions
Any medical professional such as a nurse, medical doctor, surgeon, or dentist is expected to provide health care that meets the accepted standards for that profession and the patient’s specific circumstances. Treatment which deviates from the accepted standard of care according to similar healthcare professionals and that results in injury to the patient is called medical malpractice. In order to recover compensation in a subsequent lawsuit, however, one must be able to show that the healthcare professional provided subpar care and that their negligence resulted in an economic or non-economic loss of some kind. It is not enough to simply show that a doctor has made a mistake.
A signed consent form does not relieve a doctor of his or her responsibility to provide an acceptable standard of care. The success of your claim for damages rests upon proving that you were injured as a result of the doctor’s negligence, so you should not be deterred from pursuing a case against them if you consented to a treatment that they suggested. They are still liable for any subsequent errors in judgment and/or mistakes caused by carelessness if you are injured as a result.
Health insurance providers who have paid medical bills can place liens on any settlement amounts which you may receive. Our medical malpractice attorneys can negotiate with these providers to ensure you receive fair compensation and calculate the amount of compensation you are likely to receive after all liens have been satisfied. Hospital claims adjusters are intent on settling for the least amount possible. Most people who are represented by an attorney recover a greater amount in damages.
It can be difficult for the patient to know. Even if you consult with another doctor, you may not get a definite answer to your question. The best way to find out is to have a qualified medical malpractice lawyer investigate your case for instances of negligence. They will be able to review the circumstances that have led to your injury and/or illness and more accurately determine whether or not you have a valid case to pursue.
The most obvious indications are that the provider took too long to diagnose or begin treatment, a condition became worse after treatment, or an unexpected bad result occurred such as paralysis, brain damage or death. Be especially suspicious if the doctor or provider cannot give you a logical and satisfactory explanation for a worsened condition. If, at this point, you still believe that malpractice has occurred, the next step should be to contact an attorney. From there, they will be able to conduct a more thorough investigation of your case.
In the State of Florida, a wrongfully injured patient has a limited amount of time to pursue a lawsuit. Since all medical malpractice cases are subject to a statute of limitations, legal action should be taken as soon as circumstances allow. Specifically, however, a victim will have two years from the date of their injury to file an official lawsuit and subsequently pursue compensation. If the injury was not immediately discovered, one would then have two years from the date of detection to take action but no more than four years can elapse from the date that the negligent act occurred.
Although most personal injury cases are settled outside of court, it may be necessary to pursue a medical malpractice case through trial. Since these cases are often complex in nature, you may have a more difficult time negotiating a fair settlement. This is not to say that this cannot be done, however, as a substantial number of claims are resolved through mediation. But at the end of the day, the nature of your allegations will dictate the course of the subsequent legal process.
One of the most common types of malpractice is a misdiagnosis, which happens when a doctor diagnoses a patient with the wrong illness or does not diagnose them as promptly as a competent doctor would. Another situation in which malpractice can occur is during surgery. Errors in surgical procedures may include operating on the wrong body part or the wrong patient, leaving foreign objects in the patient’s body, lacerating or perforating surrounding organs, or improperly administering or monitoring anesthesia. Also, malpractice often happens when a doctor prescribes the wrong medication to a patient, or when a nurse provides them with the wrong medication or the wrong dose of a medication. Some of the most tragic malpractice incidents arise in the context of birth injuries, which affect a fetus or newborn. The child may cope with the effects of the malpractice for the rest of their life.
You may sue any individual who committed the malpractice. Most often, the defendant will be a doctor, but sometimes a patient will sue a nurse, an anesthesiologist, or another hospital staff member. They may sue several different individuals who may have contributed to the error, especially if it is not immediately obvious who was responsible. If the person who committed the malpractice is an employee of a hospital or another entity, a patient likely can sue the entity as well. They would need to show that the employee was acting in the scope of their job duties when the malpractice occurred. A patient usually cannot sue a hospital if a doctor committed the malpractice, since most doctors are not employed by hospitals. However, there are some exceptions that may allow a patient to include the hospital in the lawsuit.
This will depend on a combination of objective and subjective factors. Most damages in medical malpractice cases are compensatory damages, which means that they are intended to reimburse the patient for the financial, physical, and emotional consequences of the malpractice. Economic damages (also known as special damages) cover items such as medical costs, lost income, the costs of future treatment, and other losses that are relatively objective. Non-economic damages (also known as general damages) cover the subjective pain and suffering of the patient, as well as other types of harm that are challenging to quantify. Someone who suffered a permanent disability or loss of function is likely to recover a higher award of damages. A patient who can prove that the defendant acted intentionally or in another egregious manner may be able to receive punitive damages as well.
The standard of care in medical malpractice cases is specific to the professional context. It is different from the standard in ordinary personal injury cases, which is based on what a reasonable person would do. A health care provider is required to act as a competent health care provider in the same specialty would act when treating a similar patient. Since judges and juries would not understand this standard on their own, the patient will need to introduce expert testimony to explain the standard of care. The expert generally must be from the same specialty as the defendant, or at least be familiar with it.
The statute of limitations in a medical malpractice case defines the period in which a patient can bring a claim. It usually starts running when the incident occurs, but it may be extended when a patient is receiving a continuing course of treatment from the same provider. The statute of limitations also may be extended based on the discovery rule. This applies when a patient did not have an opportunity to discover the malpractice when it first happened. Finally, victims of birth injuries may benefit from a longer statute of limitations, which may even extend until they turn 18.
A damages cap imposes a limit on the amount of compensation that a medical malpractice plaintiff can receive. It may apply to the total award or only to part of the award, such as the non-economic damages. These caps often but not always are adjusted for inflation. A damages cap is meant to restrain juries from awarding excessive amounts of compensation to a sympathetic plaintiff and excessively penalizing a negligent medical professional. Caps also are meant to keep the costs of medical malpractice insurance reasonable and prevent doctors from being driven out of the profession based on a single lawsuit.
You can sue the individual nurse if their medication error fell below the standard of care that a competent nurse would have met. In addition, you may be able to sue the hospital that employs the nurse. You would need to show that the nurse was acting in the scope of the employment relationship and that they were not supervised by an independent doctor (a doctor who was not a hospital employee). If they were supervised by a doctor who was a hospital employee, you still may be able to sue the hospital.
Possibly, but not necessarily. A doctor has a duty to tell a patient about any significant risks involved in a procedure, but they do not need to tell a patient about every imaginable risk. Failing to tell a patient about a significant risk may result in liability under the theory that they did not get informed consent. (This rule does not apply in emergencies, since a doctor does not have time to get informed consent.) A patient bringing a claim based on a lack of informed consent will need to show that a competent doctor would have disclosed the risk, or that a reasonable patient would have made a different decision if they had known about the risk.
Health care providers, insurers, and others have suggested imposing more rigorous damages caps, as well as limits on the fees that a plaintiff’s attorney can receive. Other reform proposals include initiatives to shorten the statute of limitations so that a patient cannot bring a lawsuit if a long time has passed since the malpractice. A more controversial proposal involves transferring these cases to a distinctive type of court, in which judges would be trained in the medical field. This potentially would eliminate a plaintiff’s right to a jury trial, so it seems unlikely to become a reality.
While you technically do not need a lawyer for most medical malpractice cases, you should strongly consider hiring a lawyer. Medical malpractice cases are more complex than car accident cases and many other personal injury claims. They require assembling and interpreting medical documents, as well as retaining experts to testify on your behalf. A plaintiff also needs to meet specific procedural requirements before their case even can be heard. It is easy for a litigant who is unfamiliar with the legal system to make mistakes during this process, which could result in the loss of their rights. At the very least, you should consult an attorney before bringing a claim to get a sense of the steps that you need to take, the pitfalls that you may encounter, and the overall strength of your case.
What is the Florida Patient’s Compensation Fund? Can I get compensation from/compensated by the Florida Patient’s Compensation Fund?
The Florida Patient’s Compensation Fund is a state-sponsored fund that operates similar to an excess insurance policy for doctors and hospitals. That is, if you get a jury verdict bigger than the insurance policy limits of the doctor or hospital that caused your injury, then the excess will be paid by the Florida Patient’s Compensation Fund.
Most hospitals are obligated to make annual payments into the fund. Any jury verdict above what the Florida Patient’s Compensation Fund will pay must be paid by the doctor or hospital that caused your injury. Additionally, the doctor or hospital whose malpractice or negligence caused your injury will have to pay any punitive damages that are awarded to you – as the Florida Patient’s Compensation Fund will not pay for punitive damages.
Before filing my medical malpractice or negligence case/lawsuit, do I have to give notice to the doctor, hospital, medical provider or health care provider who committed malpractice or negligence/whose malpractice or negligence injured/hurt me? What is the medical malpractice or negligence presuit screening period? What is a notice of intent?
Yes, before filing your medical malpractice or negligence lawsuit, you must give notice to each possible defendant in your case (called a notice of intent). This notice must:
- tell the defendant(s) all of the doctors, hospitals, health care providers or medical providers that you treated with in the two years prior to the malpractice or negligence
- provide copies of all of the medical records relied upon by the expert you used in your pre-suit investigation described above.
Along with this notice of intent, you must include an “authorization for release of protected health information” so that the defendant(s) can get your medical records in order to evaluate your case.
Do I need to make a complaint regarding the doctor, hospital, health care provider or medical provider who committed medical malpractice or negligence and injured or hurt me?
Yes, after filing a medical malpractice lawsuit, you are actually required to send a copy of the lawsuit to the Department of Health and, if the lawsuit involves a medical facility, the Agency for Health Care Administration. The Department of Health or the Agency for Health Care Administration may potentially decide to take disciplinary action against the doctor or hospital whose medical malpractice or negligence caused your injury. This requirement is based on Florida Statute 766.106.
What if I feel my questions are not answered in this Q&A?
Please call your Avard Law case worker or attorney at (239) 945-0808 and tell them the question for which you do not understand the answer. Or ask a question not covered by the Q & A questions. Please note that your calls should be answered within 48 hours. Thank you for your assistance. We are working very hard to help you win your case.
Board Certified in Social Security Disability by the NBTA. Licensed in both Florida and Massachusetts. Accredited Veterans’ disability attorney.
Board Certified in Social Security Disability by the NBTA. Licensed in both Florida and Michigan. NOSSCR Board of Directors Member.
Schedule a Free Consultation
Complete the form and we will call you back to discuss your case. We can schedule your free consultation by phone or at one of our Florida offices.