What is Medical Malpractice?
When you’ve been the victim of a physician’s negligence in Florida, the medical malpractice lawyers at Wolf & Pravato fight for justice on your behalf. With offices throughout South Florida and beyond our medical malpractice attorney team is ready to help you.
A physician’s or emergency room staff member’s carelessness can be devastating to patients and their families. In the days following your injuries, contacting a medical malpractice attorney is a step in the right direction toward your recovery.
The Fort Lauderdale team at Wolf & Pravato has seen all too often the significant financial and emotional costs when a physician fails to live up to his or her obligations. From misdiagnosing diseases, such as mesothelioma, to causing a wrongful death, we can help you seek the justice you deserve and guide you through every step of your claim.
Table of Contents:
- The Basics
- Medical Malpractice Facts
- Types of Medical Malpractice
- What to do if you think you have a Medical Malpractice Claim
Medical Malpractice: The Basics
When a medical professional – anyone tasked with the care of a patient’s medical and/or psychological well-being, including nurses, pharmacists, psychologists, and specialists – commits negligence that’s considered medical malpractice. While tort laws concerning medical malpractice vary from state to state, three conditions must exist no matter where you live. They are:
- Duty of care – Determine if the accused is a “healthcare provider”. Because medical malpractice varies under state law, the types of healthcare providers who can be held liable for malpractice also varies. Typical healthcare providers include doctors, nurses, dentists, and lab technicians. Check your state’s civil or professional code or consult with an attorney to determine how your state defines health care provider. A person must be under the direct medical care of a provider before the provider owes him or her any duty of care. For example, while watching her son’s soccer game at a park, a child fell from the monkey bars and got hurt. The doctor has no obligation to render services but if she voluntarily decides to help, she can be held liable for any harm deemed to have resulted from her negligence.
- Standard of care – If a medical professional performs a procedure that is normally performed by a specialist or person of higher skill, and the patient is harmed as a result, the accused will be held to the same standard of care as the more skilled professional. Some states use a local standard and others a national. A local standard is the level of care appropriate for that particular neighborhood, county, or state. A national standard means what is appropriate nationwide, in any neighborhood or state. To find out if your state uses local or national standards, check your state’s civil or professional code or ask an attorney familiar with medical malpractice in your state.
- Harm or damages committed – When a medical professional causes injury or damage to a patient because of substandard service or negligence the accuser must suffer some type of measurable damage that the patient would not have suffered if the medical professional had done their job right. Damages may be economic, including: medical expenses, loss of wages, court costs, and attorney fees. Damages may also be noneconomic, including: physical or emotional pain and suffering. When calculating damages, a party may consider both current and future medical expenses and loss of wages.
There are lots of different types of medical malpractice and special conditions, such as trying alternative treatments instead of conventional treatments with a proven success rate, failing to diagnose a patient’s illness correctly or at all, improper treatment, and failure to warn a patient of known side effects or possible complications.
Medical Malpractice: The Facts
If you’ve been a victim of bad medical care that resulted in personal harm, you probably have a lot of questions and are looking for answers. Here are some of the most frequently asked questions we hear at Wolf & Pravato when we first meet with a client:
Q: What is medical malpractice?
A: Medical malpractice is a civil lawsuit between an injured patient and their medical provider where the injured patient seeks damages for the negligent medical care they received. Failure to provide at least average, standard care is substandard care, and if it results in injury or death to the patient, it is malpractice.
Q: Can I sue for medical malpractice?
A: A patient injured due to medical negligence—or a family member if the victim is unable—can file a medical malpractice suit. When someone dies as a result of medical negligence, the patient’s family may sue for wrongful death on their behalf.
Q: How do I go forward if I think I have a medical malpractice claim?
A: Medical malpractice cases can become quite complicated. Meeting with an attorney who specializes in this area of the law will do a thorough review of your case and give you the opportunity to ask any specific questions.
Q: If I’m not satisfied with the treatment I got from my doctor or the outcome of surgery, do I have a viable medical malpractice claim?
A: Unfortunately, there are no guarantees of positive medical results, and unsuccessful results don’t always mean negligence. To succeed in a medical malpractice case, you need to show injury or damages that resulted from the doctor’s deviation from the standard of care applicable to the procedure.
Q: What are some examples of medical malpractice cases?
A: Medical malpractice cases can occur from any mistake or error in care by a medical professional. Some examples are: botched surgeries, errors in administrating medication, inaccurate or missed diagnoses, or any care that is below the standard that other medical professionals would routinely provide under the circumstances.
Q: How do I prove my case?
A: A plaintiff in a medical negligence case must establish through evidence these three elements: the defendant rendered substandard care, the negligence caused some type of injury, and the plaintiff suffered damages as a result. Expert medical testimony by licensed physicians familiar with the type of accepted medical care for the medical specialty involved is almost always required to prove negligence and causation of damages. It’s important for these expert witnesses to establish what the standards were and how the defendant violated them.
Q: Is there a time limit to file a medical malpractice case?
A: The statute of limitations is set by each state. If you feel you have a medical malpractice case, you should contact an attorney in your state as soon as possible and set up a consultation. Once the statute of limitations passes you can no longer file a claim for damages.
Q: How are damages determined?
A: Medical malpractice damages can include past or future medical expenses, expenses for long-term care, lost wages or earning ability, and may include payment for pain and suffering.
Q: Can I afford an attorney to represent me?
A: Many law firms take medical malpractice cases based on a contingency fee basis which means you don’t have to pay attorney fees unless your case is settled in your favor.
Types of Medical Malpractice
When professionals in the medical industry stray from established and accepted rules of conduct and standards when treating a patient and a patient is hurt as a result, that’s medical malpractice. Because medical mistakes can so devastating to the health and well-being of the patient, medical personnel must always be vigilant about their level of care they provide their patients.
Some types of medical malpractice claims include medication errors, medical negligence, and failure to explain the harmful side effects of treatment and/or procedures to the patient. But, most cases of medical malpractice are when patients are misdiagnosed. Not all misdiagnosed illnesses and/or ailments qualify as medical malpractice. Because so many illnesses present similar symptoms, medical malpractice can only be proven if several discrete requirements are satisfied:
- the medical professional owed a duty of care to the patient
- the medical professional provided substandard care
- the patient suffered as a result of this substandard care and incurred damages
Some of the most common medical malpractice cases brought against doctors include:
- Improper or misdiagnosis – This is the most frequent medical malpractice problem, accounting for over 40% of claims. Commonly misdiagnosed conditions include appendicitis, heart attack, and staph infections.
- Failure to diagnose – Medical malpractice claims for failure to treat include conditions such as prematurely discharging a patient, failing to follow-up or re-evaluate, or failing to recommend or refer a patient to a specialist for further treatment.
- Medication errors – The Institute of Medicine reported that prescription and other medication errors account for injuring almost 1.5 million patients a year. These mistakes happen at pharmacies, hospitals, and long-term care facilities.
- Surgical errors – There are a lot of different types of surgical errors and these types of mistakes can be devastating for the injured party. They can leave the patient with serious medical problems and lengthy post-operative rehabilitation or long-term care, irreparable harm or possible death. There are as many types of surgical errors as there are surgeries, including anesthesia error, incorrect incisions, accidental damage to an organ or body part, and complications associated with the surgery itself.
- Improper treatment – Types of improper treatment include: administering the wrong dose of a drug, prescribing a drug and the patient has a known allergy to it, delaying or rushing surgery and failing to take needed measures to prevent disease. Complications can include pain, disability, high medical bills, and even death.
- Abandonment of patient – Patient abandonment is a form of medical malpractice when the physician terminates the professional relationship between the physician and patient at an unreasonable time or without affording the patient the opportunity to procure an equally qualified replacement.
Specific Types of Medical Malpractice:
What If I Think I Have A Medical Malpractice Claim?
You’ve gone to your doctor, hospital or the pharmacist and now you don’t feel better. You feel worse and you suspect you may have a medical malpractice claim on your hands. What do you do?
Many people think they have a medical malpractice lawsuit if their doctor made a mistake while treating them, but that may or may not be true. The truth is, there’s a whole lot more to a medical malpractice case than just getting hurt. While the details for making a medical malpractice claim varies from state to state, there are three important things you must prove regardless of where you live. They are:
- the medical professional owed you a duty of care (you were their patient)
- the medical professional provided substandard care
- you suffered or incurred damages because of the substandard care
Is my case worth pursing?
Medical malpractice laws were put into place to protect patients’ rights to seek compensation if they become injured or harmed as a result of a medical professional’s negligence. But malpractice cases can be long and complicated to bring to trial because it’s not always a fast or easy process to prove these three crucial conditions. There is the added expense of getting expert medical witnesses and testimonials to try the case successfully. Because of the time and expense involved in trying these type of cases, it’s often not cost-effective or beneficial to seek damages for a minor injury which will resolve itself quickly. It’s important to consult with a medical malpractice attorney to determine if your case is worth pursuing.
How long do you have to file a claim?
It’s is important to know how much time you have to file your medical malpractice claim. All civil claims, including medical malpractice cases have time limits, called “statutes of limitations.” If you don’t file your claim within that time period from when the injury occurred, you risk waiving your rights to recover money for your injuries. Check the state laws in your particular state to ensure the time period for filing your claim does not run out. Make sure you understand when the statues of limitations for medical malpractice claims are for your state.
How do I select an attorney?
It’s important to choose a medical malpractice attorney whom you feel comfortable working with, but you also want an attorney with experience in medical malpractice litigation. Here are some questions to ask any attorney you are considering hiring:
- Does the law firm have certified trial attorneys?
- Is the attorney well trained and competent in matters dealing with medical malpractice?
- What type of experience does the attorney have trying medical malpractice cases?
- What’s the attorney’s record for winning cases?
- Ask for references before making your final decision.
- Ask about any specific terms or “out of pocket” expenses before signing a contract.
- Ask about the specific laws in your state regarding medical malpractice suits, such as “does your state has “tort reform” laws limiting how much money you can receive in a malpractice suit? How much is it? What if that doesn’t cover all of my medical bills, lost wages, and pain and suffering?
To win a medical malpractice case, you must prove:
- That a duty of care was owed by the physician — personal injury attorneys can help patients to prove this by showing that a doctor/patient relationship existed or that care was sought from the physician in question);
- That the duty of care was breached and the doctor was negligent;
- That the doctor’s negligence directly resulted in harm — this is called causation and is necessary in any Florida medical malpractice case; doctors often argue that underlying health problems caused the injury, not his or her negligence. A medical malpractice attorney can help you to assemble evidence, including medical records, proving the actual cause of harm; and
- That compensable harm actually occurred — this means proving that financial and emotional losses occurred and that the doctor should provide compensation.
We Help Medical Malpractice Victims Seek Compensation
Our Fort Lauderdale medical malpractice lawyers will help you identify the possible compensation you can obtain in your specific case. In general, medical malpractice damages include compensation for both economic losses and non-economic losses.
Medical malpractice damages may account for:
- Medical costs — these are economic damages and include the cost of all treatments and care necessitated by the negligence, including ongoing care that may be required in the future;
- Lost wages — this is another example of economic damages because there is an actual monetary loss incurred because of missed work;
- Pain, suffering and emotional distress — these are non-economic losses because these things do not have a specified dollar amount; and
- Wrongful death — in the event that malpractice leads to death, additional damages may be obtained in a Florida wrongful death action, including loss of companionship for family members.
Victims of medical malpractice throughout the state need to be aware that there are non-economic damage caps in Florida medical malpractice cases. These caps are found in Title XLV Torts Section 766.101 and limit the recovery for non-economic damages to $500,000 from providers and $750,000 from non-providers — except in cases of wrongful death or catastrophic injury, when the limits rise to $1 million and $1.5 million, respectively.
You should never face financial loss because of the carelessness of someone you trusted to help you. If you are the victim of South Florida medical malpractice, the lawyers at Wolf & Pravato can help you to fight for the justice that the law affords you.
To learn more, call us today at 1-954-633-8270
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