We have all heard the term Medical Malpractice, but what is it really? And how do you know if you have a claim for medical malpractice?
Medical malpractice statues in Florida are complex, because there are certain steps that must be taken before filing a lawsuit. Insurance companies and other interested lobbies have introduced various pieces of legislation over the years which have served to make pursing a medical malpractice case more difficult in Florida. “More difficult” does not mean impossible, however, and experienced medical malpractice attorneys can help you with your claim.
What Is It?
Medical malpractice is a specific type of negligence of the medical profession. According to dictionary.com, “medical malpractice is the failure of a professional to render proper services through reprehensible ignorance, negligence, or criminal intent, especially when an injury or loss follows.” It is the area of law that tries to hold accountable those who are responsible for one’s injuries if they happened at the hands of a medical professional.
You might be surprised to know that, according to the American Medical Association, medical malpractice is the 3rd leading cause of death, behind heart disease and cancer. The Institute for Health Care Improvement estimates that nearly 15 million incidents are reported each year, with one in five Medicare patients affected. Nationally, studies have shown that surgery mistakes account for 34% of the inpatient medical malpractice cases and error in diagnosis cases make up a whopping 46 % of outpatient injuries. Surgical errors include operating on the wrong body part, leaving surgical instruments in the patient, damaging an organ or nerve during the surgery or other problems. The top five misdiagnosed or mismanaged conditions are breast cancer, lung cancer, colorectal cancer, heart attack and appendicitis. A misdiagnosis means that the patient missed the opportunity to treat condition that would have been treatable except for the wrong diagnosis.
There are a number of other types of malpractice that can happen. Birth injuries, negligent prenatal care, medication or anesthesia errors are some examples of these other types. Each type of situation has specific criteria for proving whether malpractice was committed.
“No Harm – No Foul”
You must remember that in order to pursue a medical malpractice claim there must be some type of harm done to the plaintiff. Just because a mistake was made by a doctor or other medical professional, it does not mean malpractice was committed. If you believe a physician may have committed malpractice, but there was no harm done by those actions, there is no basis for a lawsuit.
Similarly, just because you are unhappy with the result of a surgery or medical treatment, it does not mean malpractice has occurred. Every surgery has risks, and if you agreed to assume those risks and have the surgery you may not have a claim.
Florida’s Pre-suit Rules
Before a medical malpractice lawsuit can be filed there is a lengthy process that must be undertaken. The injured party’s lawyer must investigate the facts to determine whether there is a reasonable basis for a lawsuit, and that there was actual harm done to the plaintiff.
The attorney must then compile all the relevant medical records from the various doctors and have a medical expert review them. This expert must be a similar health care provider, such as a brain surgeon in a brain injury case, and the expert must generate an affidavit that there is a reasonable basis for the case.
Then the attorney must send a “Notice of Intent to Initiate Litigation for Medical Negligence” to all the prospective defendants, along with the expert’s affidavit, the names of all plaintiffs and defendants, and a summary of the claim and injuries. This begins a 90 day investigative period in which the parties undertake some discovery. After the 90 days, the defendant can admit liability, make a settlement offer, submit to arbitration or reject the claim. Guess which one happens the most often? You are right -rejecting the claim – they rarely admit liability at the outset of this process.
As you can see, this is a complex and often expensive process to undertake. The procedure has to be carefully followed or the claim will be endangered. This is why you need an attorney very experienced in pursuing medical malpractice claims.
Statute of Limitations-Time to File
A statute of limitations is the law that says how long you have to file a lawsuit. There are different statutes of limitations for different types of situations. For instance, in Florida, a suit that arises out of injuries sustained in a traffic accident, which would be an “ordinary” negligence suit, must typically be filed within four years.
Florida Statute 95.11(4) (b) states that an action for medical malpractice must be commenced two years from the date the incident is discovered or should have been discovered with the exercise of due diligence. It also states that in no event shall the action be commenced later than four years after the date of the incident or occurrence out of which the action accrued.
Now, with nearly every legal rule there are exceptions, and this one is no different. The statute of repose states: “In cases where the Plaintiff can show that fraud, concealment, or intentional misrepresentation of facts prevented the discovery of the injury within a four year time period, the statute of limitations is extended for two years, BUT in no event shall exceed seven years from the date of the incident giving rise to the injury occurred.”
The point is you should not wait until the last minute to take action if you think you have been the victim of malpractice. You should consult an attorney as soon as you think you have a case for malpractice, especially with the pre-suit requirements. If you “sit on your rights” you may find that you are barred from pursuing your claim.
Experienced Legal Help
This article in no way completely discusses medical malpractice claims, and we will be posting others which explore related topics. There is a great deal more to discuss regarding this issue, and we will do so in the coming months.
If you or someone you know has suffered an injury because of professional medical negligence, you may have a claim for malpractice. This area of litigation is particularly complex because of the statutory requirements and the proof required to prove the claim. Be sure that your attorney is experienced in medical malpractice claims. You want to make sure that those medical professionals who injure their patients are held accountable for their actions. It can be a confusing and frustrating journey – make sure you have experienced, knowledgeable legal help in pursuing this claim.