How to Sue a Doctor or Hospital for Negligence or Malpractice

On Behalf of | Feb 23, 2018 | Medical Malpractice

Patient safety should be a priority in all hospitals. Strong and competent healthcare teams should have checks in place to minimize the risk of infection and prevent medical errors, but the statistics suggest that this isn’t always the case.

A 2013 study concluded that up to 440,000 patients die every year from accidents, injuries, infections, and other events and conditions encountered while in the hospital. In other words, by the end of today, over 1,000 people will be dead because of a preventable hospital error. Maybe one or more of them will be your loved ones. In addition, if you are a Medicare patient, you have a one in four chance of being injured or dying when receiving hospital treatment.

Approximately 1% of all medical patients will be a victim of medical negligence (malpractice). However, less than 3% of those victims will file a claim for malpractice. This means that the overwhelming majority of victims never seek justice. There could be many reasons why. They may not know that they were victims of malpractice. They may not know what malpractice actually is. They may be  unaware of the legal process that would help them recover damages. Whatever the reason, every victim of medical negligence has the right to pursue a claim in a court of law, and there is a process to filing and pursuing a medical negligence claim.

What is Medical Malpractice?

Medical malpractice happens when:

  • a health professional whom owes a duty to a patient
  • fallss below the standard of care reasonably expected of them,
  • such that the departure from the standard of care injures the patient, and
  • causes harm.

All four of these elements must be met in order for an incident to rise to the level of medical negligence. A hospital can be liable for its health professionals (nurses, emergency room doctors, anesthesiologist, radiologists, and employed doctors) when they treat patients in or for the hospital.

Examples of Negligence

Hospitals can be subject to a medical malpractice claim if the negligence of its employees results in complications, injuries, or death. This negligence can take several forms, including:

  • Misdiagnosis or failure to diagnose: When doctors mistakenly diagnose one condition as another or fail to detect a dangerous illness altogether, it can have serious consequences for your health. These types of cases are typical of emergency room settings. We have represented clients who have been misdiagnosed in practically all Miami-Dade emergency rooms.
  • Surgical errors: There are several ways that a surgical procedure can go wrong. They include exposure to life-threatening infections and incidents of surgical error, such as operating on the wrong body part, anesthesia errors, leaving foreign objects inside the body, and most commonly-perforating an organ during surgery. The malpractice in these cases is not only the perforation itself, but in the failure to diagnose the resulting infection following the perforation.
  • Medication errors: Hospital staff may fail to check medications and provide a patient with the wrong type or the wrong dosage.

For example, a man goes to the hospital for a routine hernia repair but still has pain and a burning sensation at the the incision site, long after it has healed. He’s unable to eat and suffers from severe abdominal pain, but no amount of medicine or antibiotics helps. A year later, the man is in such pain that he goes to the emergency room, he tells the emergency room doctor about the pain, the futility of the antibiotics, and how this all occurred shortly after his hernia surgery. The doctor orders an x-ray which shows that a piece of surgical gauze was left in the man’s abdomen from his hernia surgery. When it was removed, it was black with mold, which is why the antibiotics didn’t work.

This is medical negligence for the following reasons:

  • Tthe standard of care requires a surgeon, the surgical team, and the hospital, to not leave surgical instruments inside of a patient.
  • The doctor fell below the standard of care.
  • It made the man sick for a year.
  • Because of his sickness, it caused him pain and suffering, to miss work, and to incur unnecessary medical expenses, both in dealing with the mystery illness after the first surgery and again for the second surgery to remove the gauze.

Suing a Hospital for Medical Malpractice

If one or more members of a hospital’s staff, emergency room doctors, anesthesiologist, and/or radiologist were responsible for your preventable injury, you can file a medical malpractice claim to seek compensation for damages. It is important, however, to confirm that the doctor or other healthcare professional involved is employed directly by the hospital.

While nurses, medical technicians, and other support staff are typically employees, doctors can be independent contractors. In this case, they, and not the hospital, are liable for errors that they commit or which are committed under their direct supervision. In the latter case, the doctor must have been present and had the ability to prevent the employee’s negligence.

However, like most areas of the law, there are exceptions. Even if a hospital would not normally be responsible for a contracted doctor’s acts of malpractice, they may be liable in certain situations that include:

  • The hospital did not make it clear to you that the doctor was not an employee. Most hospitals will avoid this situation by indicating on its admission forms that a treating physician is not an employee. One exception is emergency room treatment: Florida law allows a hospital to be sued for emergency room malpractice even if you believed or were told that the doctor was a contractor. This however, is also rapidly changing abscises work their way to the Florida Supreme Court
  • The hospital retains a doctor when it knew or should have known that the doctor had become a risk to patients. For example, if the doctor treating you was an alcoholic and the hospital management knew or should have known (e.g., their breath often smelled like alcohol), you can probably sue the hospital if you are injured.

Holding a Hospital Accountable Requires Help

Medical malpractice law is regulated by complex rules that are difficult for the average person to navigate. In Florida, you must file the lawsuit within two years of discovering your injury, but no later than four years after the malpractice occurred. This means that if the injury did not cause noticeable complications within four years, your claim will be denied, unless:

  • The injured person was a minor and the case commenced on or before their eighth birthday.
  • The healthcare provider deliberately and fraudulently concealed the malpractice, in which case the statute of limitations is two years from the discovery of the injury or seven years after the malpractice occurred.

Florida law has some pre-lawsuit requirements. You must serve a notice of intent to sue on the hospital first and include an affidavit from a medical professional indicating that you have a valid claim for malpractice. This notice initiates an investigative process that lasts up to 90 days.

If the hospital indicates during that time that it does not want to settle, you have 60 days or the remainder of the statute of limitations to sue for malpractice, whichever is longer.

Before You See a Lawyer

Medical negligence lawyers have to get an accurate history from the victim and evaluate if, based on the history, there’s a potential case for medical negligence.

Medical negligence lawyers work on contingency, meaning that they only get paid if the plaintiff is awarded damages. The lawyers will pay all the costs of litigation, which can run into the tens and sometimes hundreds of thousands of dollars, depending on the case.

So, the best thing you can do if you think you have a good case against a hospital is to be a good client. Before you meet with a lawyer, make sure you know as much of the story as possible. How was your life before the medical negligence occurred? How was it after? Do you have any medical records from the hospital where you were harmed? You may not be asked for them at the initial meeting, but keep in mind that the lawyer may need your medical records to determine if there is medical negligence and if so, if suing the hospital would likely result in a trial verdict or settlement.

What Happens After You See a Lawyer

Your lawyer will decide whether or not to pursue your case against the hospital.  If the lawyer takes the case, he will then need to retain an expert medical doctor to submit an affidavit detailing how the treatment was below the standard of care, and how that departure from the standard of care led to an injury.   The case will then go through the pre suit process, which is a 90 day period during which the hospital investigates the claim.  At the conclusion of the presuit period the hospital can deny the claim, or accept responsibility.  Often times the parties will agree to mediate the case during the presuit period, and this often results in a settlement.  If the case does not settle during presuit, the lawyer will then file a complaint of medical negligence against the hospital. This is where the work really begins.

After filing the complaint, you may give a deposition and respond to discovery requests. The case may settle or it may go to trial.

Can You Sue a Hospital Yourself?

Yes, you could, but probably not nearly as effectively as a lawyer could.  In fact, the cases can be so difficult that most personal injury lawyers do not handle medical malpractice claims. A medical negligence claim is very technical.  A medical malpractice lawyer has the familiarity with the requirements necessary to prove the departure from the standard of care, the resources, the money, and the experience to advocate for you in a trial. In most states for most medical negligence claims, each claim needs an expert witness, who is either a doctor or a nurse.  Some cases require multiple experts.  The cases are very expensive and the hospitals know it. Make sure you chose a lawyer that specializes in medical malpractice and has the resources to handle your case.

Contact a Trusted Medical Malpractice Attorney Today

As you can see, suing a hospital for negligence can be complicated. The medical malpractice attorneys at Kaire and Heffernan will take over the hard work of holding the hospital accountable for your injuries, so you get the compensation you need to recuperate. For more information, please contact us.

Mark Kaire has been practicing law in Miami for nearly 15 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for 4 years.