If you went in for a medical procedure and the doctor or hospital made a significant mistake that resulted in harm to you, you might have a claim for medical malpractice.
What Do I Have to Prove in a Medical Malpractice Claim?
The essential elements of medical malpractice in Florida are:
A Doctor-Patient Relationship
We must prove that there was a valid relationship. For example, if you asked a friend who is a nurse about chest pain you were having and she told you it was likely heartburn and you later had a heart attack, you do not have a malpractice claim as you did not have a valid doctor-patient relationship.
We can establish this relationship by providing your medical records.
An Action That Fell Below the Standard of Care
Malpractice can be either an action or a failure to act. By way of example, if your doctor discovered through blood work from a physical that your blood sugar was extremely high but did not tell you or take any action to start you on a diabetes protocol or medication, she can be liable for failure to diagnose and treat you if you later went into a diabetic coma.
It is important to note that this action must fall below the standard of care (discussed in the next section).
You Suffered Harm
The harm to you must be measurable. Temporary stress or anxiety seldom qualify as measurable harm. If your doctor misread the ultrasound and thought you were having twins but later discovered you were having triplets, that is not likely to count as malpractice, since there was no measurable harm to you.
On the other hand, if you went in to have a kidney stone removed and the doctor mixed up your surgery notes with another patient’s notes and did a complete hysterectomy on you, that is measurable harm.
What is a Prevailing Professional Standard of Care?
Florida Statute § 766.102 defines standard of care as “that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”
In other words, your orthopedic surgeon must have acted in a similar way as a reasonably prudent orthopedic surgeon in your area would have acted. A mistake that deviates from this standard might be malpractice.
Are All Bad Results Malpractice?
No. A bad result does not necessarily mean that the doctor made a mistake. Some procedures are risky, and some medical conditions may eventually have a bleak outcome, despite proper medical interventions.
Your doctor should explain a procedure and its risks so you can make an informed decision about giving consent to the procedure. If you knew the risks and accepted them, the doctor is not liable for an unfortunate result if he followed the prevailing professional standard of care.
Not every mistake qualifies as medical malpractice. Health care providers are human and humans make mistakes. If your doctor made a mistake reading your chart that another doctor could have made, it might not be malpractice. However, if your doctor failed to act within the prevailing professional standard of care, she may be liable for malpractice.
We can walk you through the elements and evaluate whether your health care professional’s actions meet all the requirements to bring a lawsuit.
Note: There is an important exception to the general rule that you must prove the health care provider’s negligence caused your injury. If you discover that a doctor left a foreign body, such as a clamp, surgical needle, or sponge, inside your body, this discovery is prima facie evidence of negligence by the health care provider.
What Does Florida Require for a Medical Malpractice Lawsuit?
To file a medical malpractice lawsuit in Florida, the lawyer filing the claim must certify in writing that he conducted reasonable investigation that caused him to have a good faith belief that there are grounds for a lawsuit against the health care provider.
If your lawyer obtains a written opinion from a qualifying expert witness that there is evidence of medical negligence, this meets the good faith requirement. Health care providers must cooperate with the investigation and provide copies of their medical records, reports, and bills relating to the treatment and care of the patient.
How Long Do You Have to File a Lawsuit for Medical Malpractice?
Florida statutes give you a short window of time in which to file an action for medical malpractice. This deadline is called the statute of limitations. You have only:
- Two years from the time the medical negligence occurred, or
- Two years from when you discovered or should have discovered the negligence.
The total time limit is no longer than four years unless the medical malpractice lawsuit is on behalf of a child who is less than eight years old at the time of the filing.
If the health care provider or someone working for the benefit of the provider committed “fraud, concealment, or intentional misrepresentation of fact” to prevent you from discovering the injury, you will have another two years after the point at which you discovered or should have discovered the injury.
Even with fraud, concealment, or intentional misrepresentation of facts, you must file your claim within seven years of the negligence, unless you are filing an action for a child who is less than eight years old.
If you hire your lawyer close to the deadline, the statutes provide a safety net. Florida law will allow your lawyer to file the lawsuit within the deadline and then have up to 90 days to complete the investigation of your claim. Your lawyer will obtain the medical records from the health care provider, analyze the records, send them to a medical expert for evaluation, and prepare the required good faith certification to the court if the records and the opinion of the expert witness support doing so.
What Damages Can You Get in a Medical Malpractice Case?
If you win your medical malpractice action, you may get compensation for your economic losses, such as your medical bills, future medical treatment, disability, lost wages, and future loss of earning potential. You may also recover noneconomic damages, such as pain and suffering, disfigurement, loss of enjoyment of life, and loss of consortium.
Your lawyer will gather the evidence needed to prove all of your damages. The evidence may include the testimony or reports of medical experts and vocational experts as well as your medical records, medical bills, and employment records.
Call the Law Firm of Anidjar & Levine For Help Today
Health care providers have lawyers on retainer who are ready to defend them aggressively at a moment’s notice. You should too. The Law Firm of Anidjar & Levine will fight to get you all the compensation you deserve. Call us today at 800-747-3733 for a free, no-obligation consultation.
We Can Help.