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Failure to Diagnose–When Not Acting is Medical Malpractice

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Medical MalpracticeGetting injured or dealing with a family member’s injury as a result of a healthcare provider can be a very difficult experience. Recently, statistics revealed that hospital medical errors are now the third leading cause of death in the United States. Many people do not realize that a medical malpractice claim in Florida can involve not only a mistake that the health provider made in treating a person, but the failure to act as well. These claims can result from any act or failure to act by a healthcare provider, whereby treatment falls below the accepted standard of practice in the medical community and results in injury or death to the patient.

What is Medical Malpractice?

Medical malpractice is very similar to the simple concept of negligence in other areas of the law, except as applied to a health care professional. In other words, the health care provider failed to act as a reasonable and prudent individual within that profession and this resulted in injury or death to the victim.

Legally, how do you determine if a health care provider has acted negligently towards you or a loved one? As in other areas of the law, the provider’s behavior is measured against a standard or level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent health care providers. Acting negligently, failing to act as a reasonable health care provider can result in injury and wrongful death.

Most of the medical malpractice coverage that makes the headlines involves very obvious mistakes made by doctors – stories about sponges or instruments being left in a person after surgery, or a surgeon puncturing or nicking an organ, or an infection which takes the life of someone who should have recovered. But few people realize that there are other circumstances that can give rise to medical malpractice, and they can involve health care providers simply choosing not to take action (i.e. ignoring medical issues that their patients have brought to their attention).

In addition, a misdiagnosis or delayed diagnosis could result in the patient missing the opportunity to treat an otherwise treatable disease or condition. If it can be shown that the misdiagnosis caused additional injury or harm beyond the original condition, then you may have a claim for compensation.

When Does It Most Frequently Occur?

Some of the conditions that are most commonly the subject of medical malpractice claims for failure to diagnose and misdiagnosis include several types of cancer and heart disease. Some of the more obvious mistakes that can occur include but are not limited to:

  • Operating on the wrong organ or location on the body
  • Making a medication/prescription error
  • Ignoring a patient who has described symptoms to a health care provider
  • Failing to monitor patients post-operation
  • Leaving medical instruments in a patient’s body during surgery
  • Failing to diagnose a condition
  • Making a mistake during blood transfusions
  • Failing to properly administer and/or read tests

How Do You Prove Medical Malpractice?

There is a lengthy investigative process the attorney must conduct prior to filing suit, and they must give notice to the intended parties, as well as a great deal more to proving medical malpractice claims by way of evidence, including expert testimony.

What If My Insurance Company Acted Negligently?

There have been recent cases whereby insurance companies have made medical decisions to save money which resulted in injury or death to a patient by potentially exacerbating his or her condition. If this has occurred, it will typically be revealed during the investigation that gives rise to the lawsuit.

What Damages Can I Recover?

Some of the damages or compensation that victims of medical malpractice can receive include but are not limited to:

  • Medical expenses – past and future: Reasonable past and future cost of hospitalization and/or treatment
  • Lost earnings and/or earning capacity in the future: Any earnings and/or work time lost and/or ability to earn money in the future
  • Pain and suffering: Injury, pain, disability, disfigurement, loss of capacity for enjoyment of life. Any fair and just amount which correlates to pain and suffering experienced or to be experienced

There is no one standard for how to calculate these damages. A jury will typically make a determination based on what is reasonable and based on the evidence.

If You Suspect Medical Malpractice, You Need to Act Quickly

The time limits within which you have to file your lawsuit after the relevant incident has taken place are known as the Statute of Limitations. You only have two years from the time of the incident giving rise to the action occurred or within two years from the time the incident is discovered or should have been discovered by using due diligence to file a lawsuit, otherwise the claim will most likely be thrown out.

Usually, once this time has passed, you can no longer bring a claim for that injury, although there are some extensions whereby the window of opportunity can be extended by agreement or by a judge. For example, an action can be brought on behalf of a minor on or before the child’s eighth birthday.

Seek Experienced Counsel

If you or a loved one has been injured as the result of a health care provider’s negligent act or failure to act, you should obtain the services of an attorney experienced in these types of cases.   

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