Malpractice vs. Negligence – What Kind of Lawyer Do I Need

At least 250,000 people are killed each year by medical errors. Some studies say the number exceeds 400,000. In 2016, Johns Hopkins University patient safety experts reported that medical errors were the third highest cause of death in the United States and 10 percent of all deaths in the U.S. are due to medical errors. Many victims of medical errors survive, but with long-term damages and lifelong health effects. Suing a healthcare provider for malpractice is a major undertaking, and the stakes are high when serious injuries or a wrongful death are involved.

Your lawyer will need to determine if your case involves medical malpractice or negligence. Malpractice and negligence are similar personal injury concepts with key differences. While a medical professional may have been responsible for your suffering, depending on the circumstances, you may have either a medical malpractice or negligence claim. In addition, a lawyer may pursue a negligence claim instead of a medical malpractice claim due to the complexities of proving malpractice or an expired statute of limitations.

For both malpractice and negligence claims, it’s important to retain a personal injury lawyer, preferably a board-certified trial lawyer, with extensive trial experience and a track record of success in the medical malpractice field.

The Differences Between Malpractice and Negligence

In general, malpractice applies to licensed professionals:

• Who have breached an established “standard of care” that is owed to patients under their care,
• That this breach caused the personal injury (or death),
• And you suffered significant economic and/or non-economic damages (pain and suffering, disability, disfigurement, etc.)

For example, a doctor who ignores low oxygen warnings and fails to take appropriate action during a surgery could be considered to have committed malpractice if that failure to meet the standard of care led to an injury causing the patient to suffer significantly such as brain damage or death. If the patient didn’t suffer an injury of any significance, the claim probably is not malpractice.

According to Medscape’s 2019 Malpractice Report, the most common malpractice complaints are:

• Failure to diagnose/delayed diagnosis
• Complications from treatment or surgery
• Poor outcome/disease progression
• Failure to treat/delayed treatment

Florida state law has specific pre-suit requirements that must be met before your malpractice attorney can file a lawsuit for medical malpractice in Florida including:

• Obtaining an affidavit from another doctor (practicing in the same field) confirming that the injury is caused by malpractice
• Notifying the other party that litigation will be initiated
• A 90-day period for the parties to exchange evidence, take statements, review medical records, and respond to the claim

Medical malpractice cases are complex, time-consuming, and expensive. For example, finding a medical expert willing to review the medical records and sign an affidavit that malpractice has occurred is challenging. These experts must practice medicine in the same field as the defendant, and they often command a hefty fee in exchange for their time and an affidavit.

The Florida Supreme Court recently weighed in on medical malpractice:

“Limiting medical malpractice claims to those that are directly related to medical care or services, which require the use of professional judgment or skill, ensures that plaintiffs bringing claims of ordinary negligence are not subjected to the complex pre-suit procedures for medical malpractice claims, while still advancing the Legislature’s policy goals of encouraging early settlement and screening out frivolous medical malpractice claims.”

In addition, medical malpractice is subject to a two-year statute of limitations, so it’s important to act quickly or risk your right to compensation.

Ordinary negligence, on the other hand, typically involves an injury caused by someone who is not in the course of caring for or treating someone, is not exercising professional judgment, and is not a party licensed by the state.

The statute of limitations for ordinary negligence claims is four years. Most of the time when someone is injured in the setting of a medical treatment or medical institution (like a hospital), the case will fall under the Medical Malpractice Act and is subject to the two year statute of limitations.

Negligence isn’t limited to the medical profession, either. Anyone, whether a medical professional or not, can be negligent and cause harm to others. For example, drivers involved in car accidents can be negligent for their actions; homeowners can be negligent as can shopkeepers, employees, municipality workers, factory managers, and more. While anyone can be negligent including medical professionals, medical malpractice applies to licensed medical professionals like doctors, nurses, hospitals, therapists, dentists, and chiropractors.

Examples of General Negligence

• Failing to stop at a stop sign, causing personal injuries or wrongful death
• Failing to secure a dog, resulting in a dog bite injury
• Failing to maintain sidewalks, steps, or other surfaces, resulting in slip and fall injuries
• Slipping and falling at a hospital

Examples of Medical Malpractice

• Unnecessary surgeries
• Wrong site surgeries
• Improper medication or dosage
• Surgical errors
• Improper cleaning of surgical instruments resulting in infection
• Improper use of forceps or vacuum extractor during birth, causing injuries to the baby or mother
• Disregarding (or not taking) patient history resulting in improper or negligent treatment

What to Look for in a Personal Injury Lawyer for Medical Malpractice or Negligence Claims

If you or a loved one has been seriously injured due to the negligence or malpractice of a medical provider, retaining an experienced, board certified personal injury lawyer is critical In these cases, the sooner, the better, due to the nuances and complexities of these cases, the catastrophic nature of the injuries, the short statute of limitations, and the extensive pre-trial requirements of the Florida Medical Malpractice Act.

Leighton Law has successfully obtained some of the largest settlements in Florida for our clients. We handle medical malpractice and negligence claims involving catastrophic injuries or death. Medical malpractice is largely preventable. Holding medical providers accountable for their mistakes is vital to our clients’ long-term recoveries and may help prevent the next injury. We work on a contingency basis, making getting an experienced malpractice attorney in Florida attainable no matter what your personal finances are. Contact us today for a free, no obligation consultation.