Negligent Security Seminar | March 2015

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There’s No Difference Between Malpractice And Negligence. Medical Malpractice Explained starstarstarstarstar

We hear a lot about medical malpractice and many people ask what is the difference between malpractice and negligence when in fact both mean the same thing.

In recent years, independent studies have been published that show that medical malpractice ( or negligence ) is the third leading cause of preventable death in the United States, killing as many as 400,000 people a year.  And that doesn’t include the many more that are left permanently injured.

But what is “medical malpractice”?

Medical malpractice is another term for negligence.  That simply means a health care provider made a mistake. The medical mistake might have been made by a doctor, nurse, aide, nurse practitioner, pharmacist, or someone working in a hospital at their direction. 

Negligence is giving care that is below than the standard of care, or failing to reasonably treat someone in a manner accepted in the medical community. It could be failing to do or diagnose something, or doing something wrong.

Competent medical malpractices

Medical malpractice can be a mistake made by an otherwise competent doctor or provider, or the result of incompetence or an impaired doctor or nurse. That is, any skilled health care provider can make a mistake. 

Just like the competent driver who makes a mistake and causes a car crash, so too can the otherwise skilled doctor make a medical mistake. As with the driver, they are still responsible for their errors. The mistake can leave patients disabled or dead.

Incompetent malpractice

Then there are incompetent, unskilled or impaired (drug or alcohol) health care providers. They may be repeat offenders, like the doctor we once sued who had committed multiple wrong leg surgeries. These area special breed of medical practitioners.

Because of lax medical oversight and no requirement for medical malpractice insurance in Florida, many of these incompetent health care providers continue to commit malpractice on an unsuspecting public.

Medical malpractice comes in many forms:

  • Missed or delayed diagnosis
  • Medication errors
  • Misdiagnosis (doctor thinks its something it isn’t)
  • Surgical mistakes by doctor or nurses
  • Anesthesia mistakes
  • Unnecessary surgery
  • Failure to supervise staff.

Sometimes the medical mistake is caused by a systemic problem. The best example is a communication problem that results in injury. In hospitals it is crucial to have good communication. 

One patient we represented was seen in the emergency room for a persistent cough and chest discomfort.  The doctor ordered a chest x-ray. The radiologist later reviewed the x-ray and dictated a report that there was a mass (probably a tumor) seen. 

The report was never communicated to the patient who was sent home. A year later she returns in much worse condition. That’s because her lung cancer, which was seen on the x-ray, had spread. She was now terminal and had no chance of recovery. 

The hospital failed to have an effective procedure for communicating radiology results. 

There have been times when we have seen the malpractice caused by arrogance. In one of our cases, the young OB-GYN had decided to deliver a baby without a caesarian section in spite of the mother’s prior c-section delivery (which was due to the size of the baby’s head compared to her small pelvic size). 

When the labor became prolonged, and the baby was stuck, he ignored the strong suggestions of the experienced labor nurses and insisted on trying to deliver the baby vaginally. The baby became distressed and it was obvious on the monitor. 

Nevertheless the doctor persisted and then tried to use a vacuum extractor to pull the baby out. He continued this in the face of requests from the nurses to stop. In the end he caused the woman’s uterus to rupture, resulting in catastrophic brain injury to the baby, leaving her with severe cerebral palsy. 

7 years later we won a $24 million verdict against the doctor. But that will never bring this child back to where she should have been had he not been arrogant in his decision.

When a doctor makes a mistake in performing a procedure or surgery it can have catastrophic consequences. One of our clients became a quadriplegic when an incompetent doctor improperly administered a spinal injection for pain. Previously healthy, this man’s life was destroyed by one reckless doctor.

Another client’s husband bled to death when he was left sitting in the waiting room of the emergency department of a major hospital because they failed to properly assess him when he arrived with symptoms that he had internal bleeding after a trauma.

We have represented many clients who have lost their eyes when the eye doctor failed to properly treat an otherwise treatable eye infection. By the time they recognized what the cause of the infection was, the doctor had waited too long to start the appropriate medication that would have cured the infection.

It’s not always easy to tell if you have been the victim of medical malpractice. Often patients who receive the best care can have bad outcomes because of their disease, illness or injuries. 

Sometimes patients who should have recovered do not because of medical mistakes. And sometimes they are seriously injured or killed because of those errors. The only way to know for sure is to contact a qualified, experienced medical malpractice trial lawyer in the state where the medical care occurred.

Different State – Different medical malpractice laws

Every state has different laws governing medical malpractice. There are laws about how long you have to bring a case (called a statute of limitations, which is two years in Florida), what procedures have to be followed (in Florida you have to comply with a complex pre-lawsuit procedure before ever filing a case, including having a sworn affidavit from a qualified expert witness), who may recover, and what they may recover for. 

It’s also important to know whether the health care provider has liability insurance to pay for any claims.

If you think you or a loved one has been the victim of malpractice you should act quickly. The statute of limitations expires very fast, and you can’t just walk into a lawyer’s office in the weeks or months before the expiration of that time and expect them to take the case. 

They have to obtain all the records, evaluate it, have it reviewed by experts, and determine whether it is likely to be both meritorious and economically feasible. Malpractice cases are very expensive to prosecute, so it is important to talk with the medical malpractice lawyer about whether it makes sense to bring.

My lawyer thinks I have a case – What’s next?

If the lawyer does agree to take the case, you can expect to be involved in providing information to the lawyers, appearing at any pre-suit statements that may be required (they are under Florida law), attending sworn depositions, participating in mandatory mediation, and ultimately attending and testifying at trial, if the case is not settled before then. 

It is important to recognize that if you are the patient, much of your life will be open for examination, including your medical conditions and treatment in the past.

The best way to increase your chances for being successful in a medical malpractice case is to seek out the very best medical malpractice trial lawyers in your state. There are a limited number of these lawyers in any given area because it is so complex and expensive. 

By finding a lawyer who really handles malpractice cases (Many advertise or seek them but actually refer them out) and has a proven track record of success in winning them, you will improve the likelihood of succeeding.

How to find a qualified malpractice lawyer in your area

When looking for a qualified medical malpractice lawyer, find out if he or she is board certified in the field, if they have received recognition by their peers as being qualified in this area, whether they have published articles or books, and whether they teach others (lawyers or the public).

These are some indicators about whether you have found someone qualified to evaluate and handle your malpractice case.

Remember, a top notch medical malpractice lawyer will not only be your advocate in the courtroom, he or she will also be your counselor and advisor. 

The wisest clients listen to their lawyer’s advice. That means complying with their requests, communicating with their offices, being completely honest and transparent about what has happened, about the medical history, and everything else that might arise.

A skilled malpractice lawyer will know what kinds of experts will be required to bring and win the case, what witnesses may need to be deposed, and develop a game plan to prove the case. Because malpractice cases almost always require expert witnesses, that is a big part of the lawyer’s focus. 

But the attorney must have every record related to the patient’s past and current care to share with the experts.

Why does it matter who your lawyer is? Because every medical malpractice defense attorney and insurance company will admit that who the lawyer is that represents the plaintiff (injured party) is the single biggest factor in whether  it will succeed and will recover the largest amount possible.

At Leighton Law, we have a 33 year track record of recovering some of the largest verdicts and settlements in medical malpractice cases in Florida. 

Our experience and success in medical mistake cases has resulted in our national reputation Managing partner John Leighton has been hired by families in other states like Illinois, Texas and Kentucky to handle their malpractice cases. 

We never forget that we represent individuals, never corporations or health care providers.  We may have a national reputation, but we always give personal attention.