In 2011 there were 758 paid medical malpractice cases in Florida, ranking it fourth amongst US states, according to Kaiser State Health Facts. Only Pennsylvania, California, and New York had more paid medical malpractice cases.
Because of this, it is important for patients in the sate of Florida to be aware of what constitutes medical malpractice, so that they may guard themselves with the assurance of legal action if medical professionals treat them negligently. Medical malpractice refers to professional negligence by a health care provider in which treatment provided was substandard, and caused harm, injury or death to a patient.
By this definition, malpractice can mean giving the patient a wrong dosage or wrong medication, misdiagnosing the patient, or even staph infections. However, there are a few tests to prove medical malpractice:
- Failure to provide a proper standard of care – patients have an expectation of receiving good care from health care professionals.
- Injury caused by negligence – a patient must prove that their injury was a result of negligence—being dissatisfied with the outcome of treatment is not enough to constitute malpractice.
- Catastrophic injury – in order for a malpractice lawsuit to succeed, the damages to the patient must be very serious, because if the patient’s injury is minor, more will be spent on the case than will be recovered.
If you have questions about a case that you believe could be considered medical malpractice, please contact us for a free consultation.
A study released by the American Medical Association in May, 2012 recently disclosed the results of a comprehensive analysis of medical malpractice claims brought between the years 2002-2005. The study included all claims wherein a physician’s or other medical provider’s insurance company had expended at least some defense costs and excluded those claims that were dropped without any defense costs being incurred.
Of all claims analyzed, just over 55% resulted in litigation being filed. The percentage of claims resulting in litigation varied among medical specialties with just over 46% of claims raised against anesthesiologists going into litigation and slightly more that 62.5% of claims raised against obstetricians and gynecologists being litigated.
A not insignificant percentage of claims that were litigated resulted in a dismissal of the claims by the Court without a settlement or trial. Although the study did not analyze the reason for these dismissals, it is likely that either the claim should not have been pursued in the first place or, conversely, that additional facts were discovered after suit was filed which revealed that no malpractice had actually occurred.
Of those cases that remained in litigation, almost exactly one third (33.3%) were resolved before a verdict was reached indicating some sort of settlement or other accommodation was made between the litigating parties. Cases that actually went to trial were less than 10%.
Interestingly, of those cases that did go to a verdict, physicians/medical providers won just under 4 out of every 5.
In our experience, careful analysis of each medical claimant’s particular facts is required before undertaking a medical negligence claim. In the referenced study, more than half of the claims actually litigated resulted in a dismissal by the Court indicating that these claims were ultimately determined by the attorney or the Court to lack merit. However, of the claims that remained in litigation, one third resulted in some form of settlement. It is thus vitally important that the merits of each claim be carefully studied before undertaking litigation against a medical provider. However, just as clearly, those cases that do have merit are likely to settle before trial if the attorney bringing the claim has investigated the merits of the claim before bringing suit.
After all, while not every adverse outcome in a medical setting is the result of negligence, in those cases where a medical provider has caused injury through negligence, the client is entitled to full and complete compensation for all losses suffered. Careful analysis of the facts of the case and a close working relationship with the client significantly improves the likelihood of a successful outcome through settlement of the claim before trial.
 Arch Intern Med. 2012; ():1-2. Doi:10.1001/archinternmed.2012.1416; Anupam B. Jena, MD, PhD; Amitabh Chandra, PhD; Darius Lakdawalla, PhD; Seth Seabury, PhD; authors
Fortunately, the United States is one of the most medically advanced countries on earth. However, despite advanced medical technology and technique, doctors sometimes commit medical malpractice. As in just about any profession, doctors may practice in one or more of a number of specialty areas of medicine. The law holds doctors to a standard within their chosen area or areas of practice; specifically, a “standard of care”. In order to bring a medical malpractice suit against a doctor in the State of Florida, a claimant must show (among other things) that there are reasonable grounds to believe that a specific doctor fell below the “standard of care”. Of course, the law also requires that the claimant suffer some type of damage as a result of the medical negligence.
Florida medical malpractice laws are very stringent and require the claimant to satisfy a number of conditions before bringing a medical malpractice suit against a doctor, clinic, or hospital. The time period within which to do is significantly shorter than bringing a simple negligence suit. Within two (2) years of the date of the malpractice, or of the date that the claimant knew or should have known of the malpractice, a medical malpractice claimant must complete a “pre-suit” investigation and place the doctor, clinic, or hospital on notice that the claimant intends to file suit. This two (2) year period of time can usually be extended for an additional 90 days by filing a Petition for Automatic Extension, but even the request for an extension of 90 days must be filed within the two (2) year period.
Therefore, it is vitally important to sit down with a lawyer very soon after you suspect that you may be the victim of medical malpractice. It is also important to remember dates, events, and other things that may help the lawyer in evaluating your claim. It would be helpful to establish a timeline of events in advance of meeting with a lawyer so that the lawyer can best understand the time constraints that surround your potential case. The initial meeting with a lawyer can be, understandably, a very emotional time and it is important to relay as many facts as possible to the lawyer who will be investigating the case.
In many cases, the lawyer may be able to inform the potential client at this initial meeting as to whether in the lawyer’s opinion the doctor’s action or inaction constitutes a deviation from the “standard of care”. However, in most cases, more investigation and a review of the medical chart by a medical professional is necessary. If the client and lawyer decide to proceed in advancing the claim through the required pre-suit process, and potentially, through a legal suit, a medical review and critical opinion by an independent expert physician will be necessary.
It is important to see a lawyer as soon as possible if you feel that you have been the victim of medical malpractice, as the timeframe for establishing your legal claim is very short. At Saunders Law Group, we handle medical malpractice cases and are happy to sit and discuss the details of your particular situation to see if indeed you have an actionable claim.