In most personal injury cases, the facts can be discovered through testimony of Independent witnesses, the injured party, camera footage, police investigation and other easily accessible forms of evidence.
In surgery malpractice cases, the victims are sedated and effectively unavailable as witnesses to the malpractice. Victims have no memory or have just a muddled recollection of the events, or they do not possess the medical knowledge to understand what occurred or what should have occurred. The medical fraternity is rarely forthcoming enough to report errors committed by them.
Consequences of surgical errors can be devastating. An injury caused due to the medical negligence of a Surgeon or a member of the surgical team can result in mounting medical bills and loss of enjoyment of life for the victims. Doctors, hospitals and their insurance companies try to shift the blame, cover up the negligence and try to protect themselves from the ensuing liability.
Our qualified and experienced surgery malpractice attorneys possess in depth knowledge and experience to assist a victim and his family to navigate through complex malpractice laws of Florida. Our team relentlessly fights to secure maximum compensation through verdicts and settlements for victims of surgical injuries in Miami and all across Florida.
When a surgeon or his or her surgical team fails to perform surgery or fails to provide pre-operative or post-operative treatment in accordance with accepted medical standards and it results in injury, harm or death to a patient, surgery malpractice has occurred.
The injured patient must prove that while undergoing a surgical procedure, a surgeon or a member of his or her surgical team acted negligently in rendering reasonable care, and that such negligence resulted in injury. For this the victim has to enlist the services of an experienced Miami surgery malpractice lawyer who is willing to take on doctors, hospitals and their insurance companies who possess immense political clout as well as financial might.
The following four elements need to be proven to constitute a surgery malpractice:-
- DUTY OF REASONABLE CARE WAS OWED BY THE SURGEON AND ASSISTING SURGICAL TEAM.
In a surgery malpractice claim, the first element which a plaintiff must prove Is that the defendant owed the plaintiff a duty of care. This duty arises from a doctor-patient relationship, in which the Surgeon assumes the obligations associated with caring for his or her patient.
- VIOLATION OF THE STANDARD OF CARE. The plaintiff must prove that the defendant’s care was below the applicable standard of care. It can also mean that, though the act was appropriate, it was performed in a negligent manner.
- INJURY TO THE PLAINTIFF. The plaintiff must have suffered some injury in order to give rise to a claim for damages.
- LINK BETWEEN THE NEGLIGENCE AND THE INJURY. A negligent act that does not result in an injury is not sufficient to constitute a legal claim. The defendant’s negligence must have caused or contributed to the plaintiff’s injuries.
A 2012 JOHN HOPKINS MALPRACTICE STUDY DISCOVERED STARTLING FACTS REGARDING SURGICAL ERRORS WHICH INCLUDED :
- Surgical errors occur approximately 4,000 times a year.
- The wrong procedure was performed 20 times a week.
- The wrong body part was operated upon 20 times a week.
- Foreign objects were left in patients’ bodies 39 times a week.
- Permanent injury occurred in 32.9% of the patients.
- Death occurred in 6.6% of the patients.
COMMON SURGICAL ERRORS.
Examples of surgical errors that may constitute a malpractice include:-
- Leaving medical instruments inside the patient.
- Failure to diagnose post operative infections and internal bleeding.
- Anaesthesia errors.
- Damage to internal organs.
- Operating on the wrong body part.
- Performing incorrect procedure.
- Incorrect incisions.
- Performing unnecessary surgeries.
- Wrong patient surgery (patient mix-up)
- Using non-sterile surgical instruments.
COMMON INJURIES DUE TO SURGICAL ERRORS.
- Loss of limbs.
- Damage to muscles, ligaments, organs, tissue and nerves.
- Brain damage.
INFORMED CONSENT REQUIREMENTS BEFORE SURGICAL PROCEDURES.
A Doctor or a Surgeon is not supposed to perform a risky surgical procedure without explaining the risks of the procedure to the patient.
In Florida, the informed consent law requires that the patient be advised of three things namely,
- Nature of the procedure.
- Substantial risks and hazards involved in the procedure.
- Alternative procedures.
After being informed of this requirement, if the patient consents, then informed consent is said to have been taken. In Florida, if a doctor or any healthcare provider fails to obtain the informed consent of the patient before a procedure and if the patient suffers an injury as a result, the doctor may be liable under theory of Medical Battery.
STATUTE OF LIMITATIONS IN FLORIDA FOR SURGERY MALPRACTICE LAWSUITS.
There are certain specific time limits, restrictions and rules for filing a surgery malpractice lawsuit in Florida. An experienced Florida Surgery Malpractice lawyer ensures that you fully understand the Federal, State and Local laws that might apply to your case.
The strict procedural requirements in the Florida Comprehensive Medical Malpractice Reform Act reflects a legislative intent to curtail frivolous claims, promote settlements, and reduce high costs of medical malpractice insurance.
Under Florida law, ordinary Negligence cause of actions are subject to a four year statute of Limitations. Florida has codified a two year statute of Limitations for medical malpractice causes of action.
A victim of a surgery malpractice has 2 years from the date of the negligent surgical procedure or 2 years from the discovery of injuries suffered due to the surgery malpractice to file a lawsuit.
STATUTE OF REPOSE.
This Statute sets the deadline for maximum amount of time a victim has to file a lawsuit. Under Florida laws, after four years, a victim of a surgery malpractice cannot file a lawsuit.
Exceptions to the statute of Repose are:
- If the case involves concealment, fraud or intentional misrepresentation, then the statute of Repose is extended up to 7 years.
- A minor has until his or her eighteenth birthday to bring a suit for medical malpractice.
COMPENSATION FOR VICTIMS OF A SURGERY MALPRACTICE IN MIAMI.
Florida malpractice laws permit three forms of compensation which can be awarded by verdict or negotiated through settlement. These are :
- ECONOMIC DAMAGES.
These include past, present and future medical expenses, loss of wages, loss of employment or business opportunities. Such damages are quantifiable and reimbursable. Expenses incurred on personal attendants, life care planners and expert witnesses can also be sought in damages.
- NON-ECONOMIC DAMAGES: This include damages for loss of enjoyment of life, mental and physical pain and suffering, anguish etc.
- PUNITIVE DAMAGES:
These damages do not compensate any losses. Their purpose is to punish the wrongdoer and deter others from committing reckless actions through malice.
WHY HIRE KAIRE & HEFFERNAN?
Medical Malpractice involving surgical errors is a very specialized area of law. Our team of Miami surgery malpractice lawyers are experienced at examining, preparing and presenting complicated and complex medical evidence. Insurance companies of doctors and hospitals possess considerable financial resources which they utilize to hire the best defense attorneys who aim to prevent you from receiving the adequate compensation that you deserve if you have been a victim of a surgery malpractice. It is necessary to have a competent Florida surgery malpractice attorney by your side to take on large insurance companies and their attorneys.
Our team of competent Florida surgery malpractice lawyers carry out the following duties for our clients:-
- Conduct a thorough investigation of the case.
- Review and study medical records and operative reports which can show deviations from accepted standards of care.
- Consult medical experts who can help establish that there was a departure from the standard of care.
- Identify liable parties.
- Determine the value of the claim.
- Coordinate and communicate with legal representatives of the defendant/s.
- Strive for a fair settlement on victim’s behalf.
- Take the case to trial if required.
CONTACT A MIAMI SURGERY MALPRACTICE LAWYER.
If you or a loved one has been injured due to the negligence of a surgeon or his or her assisting surgical team in Miami, you deserve to be compensated adequately for the injuries suffered and other damages. Call an experienced surgery malpractice Lawyer at our firm for a free case evaluation right away.
Mark Kaire has been practicing law in Miami for nearly 30 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for many years.