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The Ultimate Guide to Medical Malpractice Lawsuits – What You Need to Know

Medical malpractice cases happen when a health care provider or another party responsible for medical care makes a mistake. It can be a doctor, surgeon, dentist, nurse, hospital employee, therapist, or office staff members.

When the stakes are high, as they are in providing medical care, professionals must meet similarly high standards. Even what seem like simple mistakes can lead to catastrophic injuries. For example, consider what happens when patient files are mixed up or misplaced, or someone confuses patients’ prescriptions.

People injured or misdiagnosed in receiving medical care are entitled to take legal action against those responsible if they made a mistake.

  • How do you know when you can file a lawsuit for medical malpractice?
  • How do you know where to look for the best medical malpractice lawyer and what working with them will involve?
  • Will you settle out of court or go to trial?
  • Will it cost me anything to bring a medical malpractice case?

For most people, these questions repeatedly play in the mind after medical injuries. The critical thing to realize is that an experienced medical malpractice lawyer will know what to do to help you win compensation for your injuries.

We’ve put together this guide to help you through the process of knowing when you have a case and how an experienced malpractice attorney will help you or someone you love. First, let’s look at what constitutes medical malpractice, what you should do, and what to look for in a lawyer.

What Is a Medical Malpractice Case?

How do you tell the difference between a mistake that meets the level of medical malpractice and something that’s not?

Unfortunately, medical mistakes happen much more often than people believe.  It is the third leading cause of death in the United States, and most medical errors are never discovered. A recent study found that as many as 440,000 Americans die each year from medical mistakes.  Half of all hospital admissions result in a medication error. This is outrageous!

We’ve learned, from a young age, to trust medical professionals. It’s a lesson with good intentions. Most doctors, dentists, nurses, etc., serve the best interests of their patients. But you have to remember, neglect isn’t always malicious.

Medical providers must meet the duty of care standards to operate in their industry. The intent is not always relevant.

Medical malpractice is when any health care professional fails to provide appropriate treatment. The failure can come via commission or omission. This includes any substandard treatment that leads to injury or death.

A medical malpractice case happens when victims and their lawyers pursue justice after neglect occurs. It happens more than you think. According to most sources, there are tens of thousands of medical malpractice suits every year in the U.S.

The Most Common Types of Medical Malpractice

Let’s break down the details of medical malpractice in more detail.

Injury Due to Negligence – No claim exists in instances where a health care provider makes a mistake, but there was no injury. For someone to have a case, there must be harm or damage caused by the malpractice.  As a practical matter, there needs to be a reasonably serious injury or more to make it worth bringing a malpractice case due to the expense and complexity of these cases.

Failure to Provide Adequate Care – Many laws and professional organizations mandate medical care standards and what happens when providers fail to meet them.

Impact of Injuries – The injuries caused by neglect or any other type of malpractice must have a meaningful effect on the victim’s life for a case. Something like a sprained ankle because a crutch was not adjusted to the correct height doesn’t usually meet the threshold.

Examples of lasting damage include:

  • Persistent pain
  • Physical & emotional suffering
  • Paralysis
  • Loss of movement
  • Cognitive impairment
  • Death
  • & other serious effects

But what about the most common types of medical malpractice cases? Here’s a brief overview of what is seen most often:

  • Injuries during childbirth*
  • Medication and prescription drug mistakes
  • Failure to treat
  • Failure of nurses and doctors to communicate
  • Lack of Staff
  • Improper supervision (often care provided by a resident instead of an attending physician)
  • Delayed diagnosis or misdiagnosis
  • Surgical Errors, including wrong site surgery or damaging an organ or vessel
  • Anesthesia mistakes
  • Prison and jail medical neglect and mistakes

*In Florida, many childbirth injuries are governed by Florida’s Birth-Related Neurologic Injury Compensation Act (“NICA”), which may prevent victims from bringing a case.  It is important to speak with a skilled malpractice lawyer as early as possible to determine whether or if NICA applies to your case.

Proving a Medical Malpractice Case – The Basics

It’s hard to give concrete advice on proving every medical malpractice case. The truth is, many cases have details specific to the circumstances involved that will determine what’s necessary to prove a claim. However, there are general guidelines that most experienced lawyers use to both determine whether a client has a claim and how to prove malpractice.

The Doctor-Patient Relationship

First of all, you have to prove the relationship between the medical provider and the victim. Getting advice from a doctor in the stands at your kid’s soccer game doesn’t usually count as medical care. There must be a formal medical relationship established. This comes in the form of hospital records, registration forms at your doctor or dentist’s office, insurance bills, etc.

Negligent Acts

To prove malpractice, you must establish negligence on the part of a medical provider. This can be more difficult than you think. It often requires legal maneuvering to gain access to records and other information.  A skilled malpractice attorney knows how to assemble the necessary records and documentation to investigate and build a case.

The Negligence Caused Injury

We’ve already covered that the injuries must be significant and lasting. You’re not going to win any lawsuits over frivolous claims. Victims must show their doctor, hospital or some other provider caused bodily harm.

Damages Must Be Specific

The injuries or impact must be directly attributable to the medical neglect. Victims and their legal representatives must show that their pain and suffering are a direct result of the actions of the provider.

What You Should Do If You Suspect Injury Due to Medical Malpractice

Imagine that you’re recovering at home from a recent surgery.  You researched surgeons in the area, received a recommendation from your doctor, or chose one recommended by your insurance provider.

The surgeon said everything went fine in the procedure, but you feel ill, constantly nauseous, and lacking energy upon coming home. Something isn’t sitting right, so you go to the hospital and discover that you have internal bleeding due to internal cuts from your surgery. What should you do?

1.   Seek Immediate Medical Treatment

The first thing you should do is seek medical treatment for any immediate injuries. Some malpractice cases, like taking the wrong prescription medicines or post-surgical internal bleeding, can be deadly. Take the matter seriously and call for emergency services if necessary.

2.   Talk to a Medical Malpractice Lawyer…right away

Find an experienced medical malpractice lawyer. They should list their areas of expertise on their website. This is critical to the success of your case. All skilled medical malpractice lawyers are personal injury lawyers (malpractice is a part of personal injury practice), but few personal injury lawyers are medical malpractice lawyers.  Why?  Because medical malpractice cases are among the most complex, expensive and time-consuming cases. They require great skill and experience in evaluating, investigating, reviewing medical records, assembling expert witnesses, litigating and trying.  Very few personal injury lawyers are highly skilled at handling medical malpractice cases.  In addition, medical malpractice in Florida is governed by a series of very complex statutes (laws) that are constantly changing.  Experience matters in these cases, so you’ll need someone who knows what they are doing. A seasoned malpractice attorney will tell you what to do and say and will give you reasonable advice about your case. And act quickly, because the statute of limitations (deadline to bring the case) is running.

3.   Keep All Documents

Don’t delete emails, keep paper records, and save any other type of documentation between you and the medical provider. Take photos and videos if there are any visible signs of injury. They will come in handy in settlement negotiations or court.

4.   Using Expert Witnesses

A big part of any medical malpractice claim is proving that your health care provider deviated from normal standards of care (was negligent). When you’re talking in court, however, the judge and jury may not be familiar with what constitutes “proper.” That’s why using expert witnesses is a critical part of almost every  medical malpractice case. Your attorney should know expert witnesses with whom to consult and, ultimately, testify on your behalf. Without expert testimony, it’s essentially your word against theirs.  Under Florida law there are very strict rules about what kinds of experts can testify, what their qualifications must be, and what they can give opinions about.  You can also be sure that the health care providers who made mistakes will have experts of their own, so it is important to find a malpractice attorney with experience in taking on the defense expert witnesses.

Medical Malpractice Statute of Limitations

It is very important to act quickly. Many times meritorious cases cannot be brought because the victim did not consult an attorney in time.

Florida victims injured in the course of medical care must file a claim within two years of discovery of the mistake and the injury it caused. In Florida, the statute of limitations can be extended once for 90 days if a petition is filed before the original statute of limitations expires.

That doesn’t always mean two years from the time of the incident. For example, if you discover injuries from malpractice you had no reason to know of right away, you may have two years from the time of discovery to bring the case under Florida law.

There is, however, a four-year absolute deadline from the time of the alleged malpractice. There are exceptions to the four-year rule, including cases involving outright fraud and young minors.

In Florida, malpractice victims are required to serve any defendant notice of intent to bring legal action related to medical malpractice. After serving notice, the defendant has 90 days to respond and evaluate the claim. The case can only proceed after 90 days.  Because of these complex and strict procedural requirements in Florida’s Medical Malpractice Act (Florida Statutes Section 766), you can’t go down to the courthouse and just file a malpractice case, no matter how clear and serious the case might be.

Hiring the Right Malpractice Attorney Makes All the Difference

We can’t overstate the importance of hiring the right attorney to handle your claim. It makes all the difference in the outcome of your case.

When your health and well-being are at stake, you need to find the best available lawyer possible. It will impact any settlement amounts or judgments in court.

For many medical malpractice victims, their interactions with their lawyers will be their first time speaking to an attorney. It often feels overwhelming.

Take your time. Hire only an attorney you feel comfortable working with and one who communicates effectively. They should speak on your level and help you understand what to expect.  Don’t expect them to tell you whether you definitely have a successful case or what it is worth the first time you meet; any attorney who does that is foolish, since a lot more information is usually necessary before giving that kind of opinion.

Hiring a trial lawyer with a demonstrated track record representing medical malpractice victims is equally important. It would help if you asked them about:

  • Past malpractice cases they handled
  • Have they taken depositions of defense medical experts?
  • How many malpractice cases have they handled, and did they co-counsel it (work with another firm)?
  • Was the case settled, or did it go to court?
  • Have they handled multi-party malpractice cases (where there were multiple defendants like several doctors and hospitals)?
  • How much money were the victims awarded?
  • How long did the process take?

And ask them anything else you can think of or are unsure about! This is your case. You need to feel confident with your legal representation.

Finally, do your research. Now, more than ever, there are ways to look into a lawyer’s credentials and past work.

  • Read reviews
  • Learn about any associations they belong to
  • Read articles about them
  • Locate accolades and awards (The Best Lawyers in America, Florida Legal Elite, Florida SuperLawyers, Top Lawyers in South Florida, etc.)
  • Find out whether they have given lectures, speeches or taught other lawyers about medical malpractice issues
  • Have they written articles, books or book chapters in the field?

Although not a guarantee, the more effort you put into the hiring process, the better off you’ll be down the road.

Will Hiring a Medical Malpractice Lawyer Cost Me Anything?

Most experienced malpractice lawyers will advance the costs of your case. That means the expenses that go into bringing the case (filing fees, investigation, expert witnesses, depositions, etc.) will be paid by the attorney but reimbursed out of any settlement or verdict.  It is really a risk-free proposition for the client, because if the case is unsuccessful you do not have to pay for it.  It does mean that the lawyer must use good judgment in deciding whether to take on a malpractice case. They are among the most expensive of all cases because expert witnesses are required and they are expensive.  The cases are more complicated than most other personal injury cases and usually take longer to conclude.  Likewise these lawyers will only get paid if they are successful in your case by recovering a percentage of the recovery.  For most clients this means they have little or no risk in going forward. The lawyers take all the risks. Discuss this with the attorneys you hire at the time you meet.

Settling Your Claim vs. Going to Court

We’ve already said that the stakes are high in medical malpractice cases. However, the stakes are high, not just for victims. Medical providers have a lot to lose.

In medical neglect cases, medical providers must weigh the risk of a public case versus a private settlement. If they make mistakes and there is a public case, it can cause significant reputational harm. In addition, the process takes longer, and they may have to pay legal fees on top of any judgments and damages.

These are reasons why many malpractice cases settle. Sometimes providers know they made a mistake, and they will pay. Sometimes they (or their insurance companies) will try to wear down the plaintiff or believe that the complexity of the medicine will help them win.

The amount they’ll pay, though, is often the issue. Medical providers have their lawyers and insurers too, so they’ll be trying to gauge how little they can offer to victims to make things go away. This is another reason why hiring an expert malpractice attorney is so vital. They will know when to refuse and when to accept any settlement offer. The ultimate decision on whether to settle or not will always be yours, regardless of the advice of your attorney.

The negotiations process can take months or years, depending on the case. If they fail, you may need to take your case to court.

You should work with a lawyer who has experience negotiating large settlements and going to court. You must have confidence that they will know when it’s time to go to court and walk away from negotiations.

Proving medical malpractice and working with the right lawyer is the best way to win compensation for an injury that leaves you disabled, unable to work, in significant pain, or have lost a loved one. Follow this guide and find the right lawyer who can help you win the damages you deserve to pay for medical bills and other costs associated with your injury.

 

 

Article by:

John Leighton

A nationally-recognized trial lawyer who handles catastrophic injury and death cases. He manages Leighton Law, P.A. trial lawyers, with offices in Miami and Orlando, Florida. He is President of The National Crime Victim Bar Association, author of the 2-volume textbook,Litigating Premises Security Cases, and past Chairman of the Association of Trial Lawyers of America’s Motor Vehicle, Highway & Premises Liability Section. Having won some of the largest verdicts in Florida history, Mr. Leighton is listed inThe Best Lawyers in America (14 years), “Top Lawyers” in the South Florida Legal Guide (15 years), Top 100 Florida SuperLawyer™ and Florida SuperLawyers (14 years), “Orlando Legal Elite” by Orlando Style magazine, and FloridaTrend magazine “Florida Legal Elite

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